SECURITIES PURCHASE AGREEMENT BETWEEN Rodobo International, Inc. AND Fame Ever Limited DATED February 5, 2010
Exhibit 99.5
BETWEEN
Rodobo
International, Inc.
AND
Fame
Ever Limited
DATED
February
5, 2010
This
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made and
entered into as of the February 5, 2010 between, Rodobo
International, Inc., a Nevada Company (the “Company”); and Fame Ever
Limited, a company incorporated under laws of British Virgin Islands (“BVI II”) listed in Schedule I.
The Company and BVI II are collectively referred to as the “Parties” and each of
them as a “Party”. All capitalized terms not expressly defined herein shall have
the meaning attributed to them in the Equity Transfer Agreements (as defined
below).
RECITALS:
WHEREAS, an
Equity Transfer Agreement has been entered into, as of February 5, 2010, by and
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Technical Development Co., Ltd., a wholly-owned subsidiary
of the Company (“HTTD”),
the shareholders of Hulunbeier Beixue Dairy Co., Ltd., a Chinese company (“HBDC”), Mr. ▇▇▇▇▇▇ ▇▇▇▇, the
CEO and Chairman of the Company (“▇▇. ▇▇▇▇”), who owns 51% of
the equity interest in HBDC and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇. ▇▇▇▇▇”), who owns 49% of
the equity interest in HBDC (“HBDC Equity Transfer
Agreement”), pursuant to which HBDC would merge with and into HTTD, with
HTTD continuing as the surviving corporation (the “HBDC Acquisition”).
WHEREAS, an
Equity Transfer Agreement has been entered into, as of February 5, 2010, by and
among HTTD, and the shareholder of Ewenkeqi Beixue Dairy Co., Ltd., a Chinese
company (“EBDC”) , ▇▇.
▇▇▇▇, who owns 51% of the equity interest in HBDC, and ▇▇. ▇▇▇▇▇, who owns 49%
of the equity interest in HBDC (“EBDC Equity Transfer
Agreement”), pursuant to which HBDC would merge with and into HTTD, with
HTTD continuing as the surviving corporation (the “EBDC Acquisition”);
and
WHEREAS, an
Equity Transfer Agreement has been entered into, as of February 5, 2010, by and
among HTTD, the owner of Hulunbeier City Hai La Er District Beixue Dairy
Factory, a Chinese company (“HHBD”), ▇▇. ▇▇▇▇▇ who owns
100% of the ownership interest in HHBD (“HHBD Equity Transfer
Agreement”, together with HBDC Equity Transfer Agreement and EBDC Equity
Transfer Agreement, collectively, the “Equity Transfer Agreements”),
pursuant to which HHBD would merge with and into HTTD, with HTTD continuing as
the surviving corporation (the “HHBD Acquisition”, together with
HBDC Acquisition and EBDC Acquisition, collectively, the “Acquisitions”);
and
WHEREAS, on or
prior to the date hereof, the Special Committee of the Board, which consists of
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ E, ▇▇▇▇▇ ▇▇ and ▇▇▇ ▇▇, all of whom are deemed as
“Disinterested Directors”, as such term is defined under the Nevada
Revised Statutes, with the power and authority to review the proposed
transactions and evaluate the fairness of such transactions, based on its review
of the financial analysis and valuation reports presented by Beijing Haohai
Tongfang Assets Appraisal Co., Ltd, dated as of February 4, 2010 and Greater
China Appraisal Limited to the Board, dated as of February 4, 2010, has
determined that the Equity Transfer Agreements and the transactions contemplated
thereby, including the Acquisitions, are advisable and are fair to and in the
best interests of the Company and the Company’s stockholders.
NOW, THEREFORE, in
consideration of the mutual covenants and premises contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
(a) Sale of Consideration
Shares. Upon the terms and subject to the conditions set forth
herein, Equity Transfer Agreements and in accordance with applicable law, as the
part of consideration of Acquisitions contemplated under Equity Transfer
Agreements, the Company hereby agrees to allocate to BVI II, and BVI II agrees
to accept, 3,050,000 shares of Common Stock (the “Consideration
Shares”).
(b) Representations and Warranties of BVI
II. BVI II hereby represents and warrants to the Company, which
representations and warranties shall survive the Closing, the
following:
(a) BVI
II has all requisite power and authority to execute, deliver and perform under
this Agreement and the other agreements, certificates and instruments to be
executed by BVI II in connection with or pursuant to this
Agreement. Upon execution and delivery by BVI II at the Closing, this
Agreement is a legal, valid and binding agreement of BVI II, enforceable against
BVI II in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting the enforcement of creditors’ rights generally and subject to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) BVI
II is an “accredited investor” as defined by Rule 501 under the Securities Act
of 1933, as amended (the “Securities
Act”).
(c) BVI
II is receiving the Consideration Shares for its own account and not with a view
to the distribution thereof, nor with any present intention of distributing the
same, in violation of the Securities Act, and the rules and regulations
promulgated thereunder, or any applicable state securities or “blue sky” laws,
rules and regulations. BVI II understands the Consideration Shares
are being issued pursuant to an exemption from registration contained in the
Securities Act based in part upon BVI II’s representations contained in this
Agreement, including, without limitation, that BVI II is an “accredited
investor” within the meaning of Regulation D under the Securities
Act. BVI II confirms it has received or has had full access to all of
the Company’s publicly available documents, which are available on the SEC’s
website at ▇▇▇.▇▇▇.▇▇▇, and the information it considers necessary or
appropriate to make an informed investment decision with respect to the
Consideration Shares under this Agreement. In determining whether to
make this investment, BVI II has relied solely on BVI II’s own knowledge and
understanding of the Company and its business based upon BVI II’s own due
diligence investigation and the information furnished pursuant to this
paragraph. BVI II understands that no person has been authorized to
give any information or to make any representations which were not furnished
pursuant to this paragraph and BVI II has not relied on any other
representations or information in making its investment decision, whether
written or oral, relating to the Company, its operations and/or its
prospects.
(d) BVI
II has substantial experience in evaluating and investing in transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. BVI II must bear the economic
risk of this investment until the Consideration Shares are sold pursuant
to: (i) an effective registration statement under the Securities Act;
or (ii) an exemption from registration is available with respect to such sale.
BVI II is able to bear the economic risks of an investment in the Consideration
Shares and to afford a complete loss of BVI II’s investment in the Consideration
Shares.
(e) BVI
II is aware that the Consideration Shares and any underlying securities will
bear substantially the following legend:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS THE COMPANY HAS RECEIVED A WRITTEN OPINION FROM
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY STATING
THAT SUCH TRANSFER IS BEING MADE IN COMPLIANCE WITH OR UNDER EXEMPTION FROM ALL
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION THEREFROM.”
(f) The
execution, delivery and performance of this Agreement by BVI II will not
conflict with or result in the breach of any term or provision of, or violate or
constitute a default under, any charter provision or bylaw or under any material
agreement, to which BVI II is a party or by which BVI II is in any way bound or
obligated.
(g) BVI
II has carefully considered and has discussed with the BVI II’s professional
legal, tax, accounting and financial advisors, to the extent the BVI II has
deemed necessary, the suitability of this investment and the transactions
contemplated by this Agreement for the BVI II’s particular federal, state, local
and foreign tax and financial situation and has determined that this investment
and the transactions contemplated by this Agreement are a suitable investment
for the BVI II. BVI II relies solely on such advisors and not on any
statements or representations of the Company, the Company or any of its agents.
BVI II understands that BVI II (and not the Company) shall be responsible for
BVI II’s own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
(h) No
governmental, administrative or other third party consents or approvals are
required, necessary or appropriate on the part of BVI II in connection with the
transactions contemplated by this Agreement.
(i) BVI
II agrees it will not disclose, and will not include in any public announcement,
the name of the Company or the Company, unless expressly agreed to by the
Company or unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement.
(c) Closing.
(a)
Time; Place;
Outcome. The Closing of the transactions contemplated by this Agreement,
unless expressly determined herein, shall be held at the offices of the Company
in China, at 4:00 P.M. Beijing time, on February 5, 2010 (the “Closing Date”) or on such
other date and at such other place as may be mutually agreed by the parties,
including closing by facsimile with originals to follow.
(b) Conditions Precedent to BVI
II’s Obligations. The obligations of the BVI II at the Closing
shall be subject to the satisfaction on or prior to the Closing of the following
conditions precedent, any one or more of which may be waived by the BVI
II:
(i) Performance. The
Company shall have performed and complied with all agreements and conditions
contained herein or in other ancillary documents incident to the transactions
contemplated by this Agreement and Equity Transfer Agreements required to be
performed or complied with by them prior to or at the Closing.
(ii) Proceedings and
Documents. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be presented and delivered to
the BVI II, shall be satisfactory in substance and form to the BVI II or his
counsel, and the BVI II or his counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(iii) Performance. The
Company shall have obtained in a timely fashion any and all consents, permits,
approvals, registrations and waivers necessary or appropriate for consummation
of the transaction.
(c) Conditions Precedent to the
Company’ Obligations. The obligations of the Company at
Closing shall be subject to the satisfaction, on or prior to the Closing, of the
following conditions precedent, any one or more of which may be waived by the
Company.
(i) Representations and
Warranties. The representations of and warranties by the BVI
II in Section (b) hereof shall be true and accurate on and as of the
Closing.
(ii) Performance. The
BVI II shall have performed and complied with all agreements and conditions
contained herein or in other ancillary documents incident to the transactions
contemplated by this Agreement and Equity Transfer Agreements required to be
performed or complied with by him prior to or at the Closing.
(iii) Consents;
Authorizations. The BVI II shall have secured all permits,
consents and authorizations, if any, that shall be necessary or required
lawfully to consummate this Agreement.
(iv) Proceedings and
Documents. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to the Company or their counsel, and the Company or their counsel shall
have received all such counterpart originals (or certified or other copies) of
such documents as they may reasonably request.
(d) Further Assurances.
The Company and BVI II shall, upon request, on or after the Closing Date,
cooperate with each other (specifically, the Company shall cooperate with the
Investors, and each Investor shall cooperate with the Company) by furnishing any
additional information, executing and delivering any additional documents and/or
other instruments and doing any and all such things as may be reasonably
required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement.
(d) Miscellaneous.
(a) Entire
Agreement. This Agreement (together with the Schedule,
Exhibits, Warrants and documents referred to herein) constitute the entire
agreement of the parties and supersede all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
(b) Notices. All
notices or other documents under this Agreement shall be in writing and
delivered in person or mailed by certified mail, postage prepaid, addressed to
the Parties at the addresses indicated on signature page hereof, or to any new
address designated in like manner by any party hereto
(c) Waiver. No
delay or failure by either party to exercise any right under this Agreement, and
no partial or single exercise of such right, shall constitute a waiver of that
or any other right, unless otherwise expressly provided herein.
(d) Survival of
Agreements. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any such term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
(e) Events of
Termination. Anything herein or elsewhere to contrary
notwithstanding, this Agreement may be terminated by written notice of
termination at any time before the transfer of the Consideration Shares by
mutual written consent of the Parties.
(f) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the British Virgin Islands, without giving effect
to applicable principles of conflicts of law.
(g) Severability. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such determination that any such term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
(h) Binding Effect. All
the terms and provisions of this Agreement whether so expressed or not, shall be
binding upon, inure to the benefit of, and be enforceable by the parties and
their respective administrators, executors, legal representatives, heirs,
successors and assignees.
(i) Dispute Resolution.
In the event of any dispute, claim or difference (the “Dispute”) between any
Parties arising out of or in connection with this Agreement, the Dispute shall
be resolved in accordance with the following:
(i) Negotiation between Parties;
Mediations. The Parties agree to negotiate in good faith to
resolve any Dispute. If the negotiations do not resolve the Dispute
to the reasonable satisfaction of all parties within thirty (30) days,
subsection (b) below shall apply.
(ii) Arbitration. In
the event the Parties are unable to settle a Dispute in accordance with
subsection (a) above, such Dispute shall be referred to and finally settled by
arbitration at Hong Kong International Arbitration Centre in accordance with the
UNCITRAL Arbitration Rules (the “UNCITRAL Rules”) in effect, which rules are
deemed to be incorporated by reference into this subsection. The arbitration
tribunal shall consist of three arbitrators to be appointed according to the
UNCITRAL Rules. The language of the arbitration shall be
English.
(iii) Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of Parties and their respective successors and assigns.
(j) Counterparts. This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement. A facsimile transmission of this signed Agreement shall
be legal and binding on all parties hereto.
(k) Headings. The
descriptive headings of the Sections hereof are inserted for convenience only
and do not constitute a part of this Agreement.
[SIGNATURES
ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the
Parties have as of the date first written above executed this
Agreement.
THE
COMPANY:
Rodobo
International, Inc.
By: /s/_ ▇▇▇▇▇▇ ▇▇▇▇
___
▇▇▇▇▇▇
▇▇▇▇
Chief
Executive Officer
Address:
______________________
BVI
II
Fame
Ever Limited
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_
▇▇▇▇▇▇▇
▇▇▇▇▇
Sole
Director
Address:
______________________