Exhibit 10.16
STOCK PURCHASE AGREEMENT
by and among
Sunwin International Neutraceuticals, Inc.
as Acquiror
Qufu Natural Green Engineering Company
as Acquiree
and
Shandong Shengwang Pharmaceutical Group Corporation
the Shareholder of
Qufu Natural Green Engineering Company
February 7, 2006
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into this
7th day of February 2006 by and among Sunwin International Neutraceuticals,
Inc., a Nevada Corporation, (hereinafter referred to as "SUWN"), Qufu Natural
Green Engineering Company, a Chinese Limited Liability Company (hereinafter
referred to as the "Company" or "Qufu"), and Shandong Shengwang Pharmaceutical
Group Corporation, a 20% shareholder of the Company (hereinafter referred to as
the "Shareholder").
RECITALS:
A. The Shareholder owns 20% of the issued and outstanding shares
of the capital stock of the Company.
B. SUWN is willing to acquire 20% of the issued and outstanding
capital stock of the Company, making the Company a wholly
subsidiary of SUWN, and the Shareholder desire to exchange 20%
of his shares of the Company's capital stock for 5 million
restricted shares of SUWN (OTCBB: SUWN), authorized but
unissued shares of Common Stock.
C. The Company is doing business in China and related territories
with an address of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ Tel.: (▇▇▇▇▇) ▇▇▇ ▇▇▇▇; Fax: (▇▇▇▇▇) ▇▇▇ ▇▇▇▇
D. It is the intention of the parties hereto that: (i) SUWN shall
acquire 20% of the issued and outstanding capital stock of the
Company in exchange solely for 5,000,000 shares of SUWN
authorized but unissued Common Stock set forth below (the
"Exchange"); and (ii) the Exchange shall qualify as a
transaction in securities exempt from registration or
qualification under the Securities Act of 1933, as amended,
(the "Act") and under the applicable securities laws of the
state or jurisdiction where the Shareholders reside.
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. SUWN and the Shareholder hereby agree that the
Shareholders shall, on the Closing Date on February 7, 2006, exchange 20% of his
issued and outstanding shares of the capital stock of the Company (the "Qufu
Shares") for 5,000,000 newly issued shares of SUWN Common Stock, $.001 par value
(the "SUWN Shares").
1.2 Delivery of Yongxin Shares. On the Closing Date, the Shareholder
will deliver to ANXIN the certificates representing 20% of the Qufu Shares, duly
endorsed (or with executed stock powers) so as to make SUWN the 20% owner
thereof. SUWN shall deliver to the Shareholder 5,000,000 SUWN Shares to be
delivered to the Shareholder or as the shareholder direct so as to make the
Shareholder or their nominee the sole owner thereof.
1.3 Investment Intent. 5,000,000 newly issued shares of SUWN common
stock have not been registered under the Securities Act of 1933, as Amended, and
may not be resold unless the SUWN Shares are registered under the Act or an
exemption from such registration is available. The Shareholder represents and
warrants that he is acquiring the SUWN Shares for his own account, for
investment, and not with a view to the sale or distribution of such Shares. Each
certificate representing the SUWN Shares will have a legend thereon
incorporating language as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The shares have been acquired for investment and may
not be sold or transferred in the absence of an effective
Registration Statement for the shares under the Act unless in
the opinion of counsel satisfactory to the Company,
registration is not required under the Act."
1.4. Conditions Precedent. Completion of the Exchange shall be
conditional upon (a) the Shareholder completing a review of the financial,
trading and legal position of SUWN in respect of SUWN; (b) SUWN has obtained all
the necessary consent, authorization and approval from the relevant regulatory
authorities, its board of directors and/or its shareholders; (c) receipt by the
Shareholder of a legal opinion that the Exchange qualifies as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended.
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 SUWN the unaudited balance sheet of the Company as of January 31,
2006 (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.
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
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 January 31, 2006 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;
(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 a registered capital of
20,000,000 RMB and two shareholders:
Shandong Shengwang Pharmaceutical Group Corporation and SUWN
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 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 July 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/DRGG
SUWN hereby represents and warrants to the Company and the
Shareholders as follows:
3.1 Organization and Good Standing. SUWN is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida 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 authorized capital stock of
consists of 150,000,000 shares of Common Stock (Par Value $0.001), of which
63,000,000 shares are presently issued and outstanding and 2,000,000 shares of
preferred stock, of which none is issued and outstanding. SUWN is duly licensed
or qualified and in good standing as a foreign corporation where the character
of the properties owned by SUWN or the nature of the business transacted by it
make such license or qualification necessary. does not have any subsidiaries.
3.2 The Shares. The SUWN Shares to be issued to the Shareholder has
been or will have been duly authorized by all necessary corporate and
stockholder actions and, when so issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements; Books and Records. There has been previously
delivered to the Company, the unaudited balance sheet of as January 31, 2006
(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 Balance
Sheet on January 31, 2006, there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of SUWN;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of , 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 capital
stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by 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. SUWN 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 . 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 Compliance with Laws. SUWN has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to their businesses, including Federal
and State securities laws, which, if not complied with, would materially and
adversely affect the business of or the trading market for the shares of Common
Stock.
3.7 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 SUWN;
(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 SUWN 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, or upon the properties or business of ; 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 .
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 SUWN.
3.9 Brokers or Finders. No broker's or finder's fee will be payable by
SUWN in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by SUWN.
3.10 Assets SUWN 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. SUWN 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, SUWN will not have any Liabilities, other
than Liabilities fully and adequately reflected on the Balance Sheet or balance
sheet dated March 31, 2005, except for Liabilities incurred in the ordinary
course of business.
3.12 Operations of . 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 except in the ordinary course of
business; or
(vi) materially increased the annual level of compensation of
any executive employee of ;
(vii) increased, terminated amended or otherwise modified any
plan for the benefit of employees of ;
(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. SUWN 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 , 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 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 , 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 , or any instrument, contract or other agreement to which is a
party or by or to which is bound or subject; or
(iii) result in the creation of any lien or other
encumbrance on the assets or properties of
3.14 Delivery of Periodic Reports; Compliance with 1934 Act. SUWN has
provided the Company and the Shareholder with financial statements. All reports
filed pursuant to such Act are complete and correct in all material respects.
All material contracts relative to SUWN are included in the Periodic Reports.
All material contracts and commitments for the provision or receipt of services
or involving any obligation on the part of SUWN are included as exhibits to such
periodic reports or are listed on Schedule 3.13 hereto.
3.15 Capitalization. The authorized capital stock of consists of
150,000,000 shares of common stock, $.001 par value, of which 63,000,000 shares
are presently issued and outstanding and 2,000,000 shares of preferred stock, of
which none is issued and outstanding. Except as indicated in Schedule 3.14
hereto, has not granted, issued or agreed to grant, issue or make available any
warrants, options, subscription rights or any other commitments of any character
relating to the issued or unissued shares of capital stock of SUWN.
3.16 Full Disclosure. No representation or warranty by 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 SUWN.
3.17 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
February 7, 2006.
SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDER
The Company and the Shareholders covenant to SUWN 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 January 31, 2006 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 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 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 SUWN
SUWN covenants to the Company and the Shareholder as follows:
5.1 Conduct of Business. From the date hereof through the Closing Date,
shall conduct its business in the ordinary course and, without the prior written
consent of the Company, shall ensure that does not undertake any of the actions
specified in Section 3.12 hereof.
5.2 Preservation of Business. From the date hereof through the Closing
Date, SUWN shall preserve its business organization intact and use its best
efforts to preserve goodwill.
5.3 Litigation. shall promptly notify the Company of any lawsuits,
claims, proceedings or investigations that after the date hereof are threatened
or commenced against or against any officer, director, employee, consultant,
agent, or stockholder with respect to the affairs of .
5.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, SUWN 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, will not
permit and will not authorize any officer or director of 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 , or any
transaction in which 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
fulfillment of the conditions to the Closing on February 7, 2006, 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 TO CLOSE
The obligation of to enter into and complete the Agreement is subject,
at the option of , to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived by 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 SUWN, 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
Directors of the Company shall have approved the transactions contemplated by
this Agreement and the Company shall have delivered to , if requested by ,
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. shall have satisfied itself, after
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 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. 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 Qufu Shares, duly endorsed (or with executed
stock powers) so as to make SUWN the 20% owner thereof within 10 business days.
7.8 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 SUWN 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. SUWN shall have performed and complied with all covenants and
agreements required by the Agreement to be performed or complied with by SUWN on
or prior to the Closing Date. SUWN will deliver to the Company and the
Shareholders, if requested, a certificate, dated the Closing Date and signed by
an executive officer of , 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 shall have approved the transactions contemplated by this
Agreement, and will deliver to the Company and the Shareholder, if requested,
resolutions by their Board of Directors certified by the Secretary of
authorizing the transactions contemplated by this Agreement within 10 business
days after the closing.
8.3 Legal Opinion. is to provide to the Company and the Shareholder
a legal opinion that the Exchange qualifies as a tax-free reorganization under
Section 368(1)(1)(B) of the Internal Revenue Code of 1986, as amended.
8.4 Third Party Consents. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with which may be
required in connection with the performance by of their obligations under such
contracts or other agreements after the Closing shall have been obtained.
8.5 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 and the
information provided hereby or in connection herewith, or following any
discussions with management or representatives of 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 .
8.6 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 .
8.7 Certificate of Good Standing. The Company and the Shareholders
shall receive a certificate of good standing within 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.
8.8 Stock Certificates. At the Closing, the Shareholder shall receive
certificates representing 1,000,000 Shares to be received pursuant hereto and
subject to the conditions previously described within 10 business days.
8.9 Other Documents. shall have delivered such other instruments,
documents 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 9. INDEMNIFICATION
9.1 Obligation of to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 9, 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 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 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 February 7, 2006. 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:
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 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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Sunwin International Neutraceuticals, Inc.
By:
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Its: CEO and President
Shandong Shengwang Pharmaceutical Group Corporation
By:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: CEO and Chairman
