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| 8-K - LOGIQ, INC. | v206356_8k.htm |
STOCK
PURCHASE AND SALE AGREEMENT
This
Stock Purchase and Sale Agreement (this “Agreement”) is dated as of
December 17, 2010, by and among SINOBIOMED INC., a Delaware corporation
(collectively with its predecessors, the “Seller”), CHINA NONFERROUS
METALS RESOURCE GEOLOGICAL SURVEY INC., a British Virgin Islands limited company
(the “Purchaser”) and
WANXIN BIO-TECHNOLOGY LIMITED, a British Virgin Islands limited company (the
“Company”). Each of
the Seller, the Purchaser and the Company is referred to herein as a “Party” and
collectively, as the “Parties.”
BACKGROUND
A. The
Seller is the holder of 100% of the issued and outstanding ordinary shares of
the Company (the “Shares”). As part
of a plan of reorganization, the Seller desires to sell to Purchaser and
Purchaser desires to purchase from the Seller the Shares, for an aggregate
purchase price of Two Hundred Thousand Dollars ($200,000) (the “Purchase Price”), upon the
terms, provisions, and conditions and for the consideration hereinafter set
forth.
B. The Board of
Directors of each of the Seller and the Purchaser has determined that it is
desirable to effect this plan of reorganization and share purchase and
sale.
NOW,
THEREFORE, for and in consideration of the premises and mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto do
hereby represent, warrant, covenant, and agree as follows:
ARTICLE
1.
DEFINITIONS
1.1. Purchase and
Sale. Based
upon the representations, warranties, and covenants and subject to the terms,
provisions, and conditions contained in this Agreement, at the Closing (as
defined below), the Seller hereby sells, transfers, assigns, conveys and
delivers the Shares to Purchaser subject to the conditions set forth herein, and
Purchaser agrees to purchase the Shares from the Seller for the consideration
hereinafter set forth.
1.2. Purchase
Price. In
the Closing Date (as defined below) the Purchaser shall pay the Purchase Price
to the Seller.
1.3. Closing
Deliveries. (a)
Upon execution of this Agreement (the “Closing”), the Seller shall
deliver or cause to be delivered to the Purchaser the following (the “Seller Deliverables”) (i) the
original certificate(s) representing the Shares, accompanied by a duly executed
stock transfer power for transfer by the Seller of the Shares to the Purchaser
and (ii) the
resignation and release of any officers and directors of the Seller who are also
officers and directors of the Company, and the designees, if any, specified by
the Purchaser will have been appointed as officers and directors of the Company;
and (b) at the Closing, the Purchaser shall deliver or cause to be
delivered to the following (the “Purchaser Deliverables”) (i)
the Purchase Price in United States dollars and in immediately available funds,
by wire transfer to an account designated in writing by the Company for such
purpose and (ii) a duly executed release by the Purchaser and the Company of the
Seller and each of its current directors and officers, in form and substance
satisfactory to the Seller.
ARTICLE
2.
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Subject to the exceptions previously
provided in disclosure materials (both written and verbal) to the Purchaser (the
“Disclosure Materials”),
regardless of whether or not the Disclosure Materials are referenced below with
respect to any particular representation or warranty, each of the Company and
the Seller represents and warrants as
follows to the Purchaser.
2.1. Organization, Standing and
Power. Each of the Seller and the Company is duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it is organized
and has the corporate power and authority and possesses all governmental
franchises, licenses, permits, authorizations and approvals necessary to enable
it to own, lease or otherwise hold its properties and assets and to conduct its
businesses as presently conducted, other than such franchises, licenses,
permits, authorizations and approvals the lack of which, individually or in the
aggregate, has not had and would not reasonably be expected to have a Material
Adverse Effect on the Company or the Seller (as
defined below). Each of the Company and the Seller is duly
qualified to do business in the jurisdiction where the nature of its business or
its ownership or leasing of its properties make such qualification necessary
except where the failure to so qualify would not reasonably be expected to have
a Material Adverse Effect. The Seller has delivered to the Purchaser true and complete copies of the Company’s charter,
organizational documents and constituent instruments (the “Constituent Instruments”) and
the comparable Constituent Instruments of each of its subsidiaries, in each case
as amended through the date of this Agreement. “Material Adverse Effect” means
any of (i) a material and adverse effect on the legality, validity or
enforceability of this Agreement, (ii) a material and adverse effect on the
results of operations, assets, prospects, business or condition (financial or
otherwise) of the Company, or (iii) an adverse impairment to the Company’s
ability to perform on a timely basis its obligations under this
Agreement.
2.2. Subsidiaries; Equity
Interests. The Disclosure Materials lists each subsidiary of the Company
and its jurisdiction of organization. All the outstanding shares of capital
stock or equity investments of each subsidiary have been validly issued and are
fully paid and nonassessable and are as of the date of this Agreement owned by
the Company, by another subsidiary of the Company or by the Company and another subsidiary of the Company. Except for its interests
in its subsidiaries, the Company does not
as of the date of this Agreement own, directly or indirectly, any capital stock,
membership interest, partnership interest, joint venture interest or other
equity interest in any person.
2.3. Capital
Structure. The authorized capital stock of the Company consists of 50,000 ordinary shares,
$1 par value. As of the date hereof, 1,750 ordinary shares are issued
and outstanding, all of which are held by the Seller. Except as set
forth above, no shares of capital stock or other voting securities of the Company are issued, reserved for issuance or
outstanding. Except as set forth in the Disclosure Materials, the Company is the sole record and beneficial
owner of all of the issued and outstanding capital stock of each of its
subsidiaries. All outstanding shares of the capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable and not subject to or issued in violation of any
purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right under any provision of the law of the
British Virgin Islands, the Company’s Constituent
Instruments or any Contract to which
the Company is a party or otherwise bound.
Except as set forth in the Disclosure Materials, there are not any bonds,
debentures, notes or other indebtedness of the
Company having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matters on which holders of
the Company’s capital stock or the capital
stock of any of its subsidiaries may vote (“Voting
Debt”). Except as set forth in the Disclosure Materials, as of
the date of this Agreement, there are not any options, warrants, rights,
convertible or exchangeable securities, “phantom” stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party
or by which any of them is bound (a) obligating the Company to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of capital stock or other
equity interests in, or any security convertible or exercisable for or
exchangeable into any capital stock of or other equity interest in, the Company or any of its subsidiaries or any
Voting Debt, (b) obligating the Company or
any of its subsidiaries to issue, grant, extend or enter into any such option,
warrant, call, right, security, commitment, Contract, arrangement or undertaking
or (c) that give any person the right to receive any economic benefit or right
similar to or derived from the economic benefits and rights occurring to holders
of the capital stock of the Company or of
any of its subsidiaries. As of the date of this Agreement, there are
not any outstanding contractual obligations of the
Company to repurchase, redeem or otherwise acquire any shares of capital
stock of the
Company.
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2.4. Authority; Execution and
Delivery; Enforceability. Each of the Company
and the Seller has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated by this
Agreement (the “Transactions”). The
execution and delivery by each of the
Company and the Seller of this
Agreement and the consummation by each of
them of the Transactions have been duly authorized and approved by their
respective Board of Directors and no other corporate proceedings on the part of
any of them are necessary to authorize this
Agreement and the Transactions. When executed and delivered, this
Agreement will be enforceable against each of the
Company and the Seller in accordance
with its terms, except as such enforcement is limited by general equitable
principles, or by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights generally.
2.5. No Conflicts;
Consents. The execution and delivery by each of the Seller and the Company of this Agreement does not, and the
consummation of the Transactions and compliance with the terms hereof will not,
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any lien or encumbrance upon any of the
properties or assets of the Company under,
any provision of (i) the Constituent Instruments of the Company, (ii) any material Contract to which
the Seller or
the Company is a party or by which
any of their respective properties or assets is bound or (iii) any material
judgment, order or decree or material Law applicable to the Company or the Seller and each of their
respective properties or assets, other than, in the case of clauses (ii) and
(iii) above, any such items that, individually or in the aggregate, have not had
and would not reasonably be expected to have a Material Adverse Effect on any of
them. Except for any required filings with the Companies Registry for
the British Virgin Islands and the waiver and consent of the Company’s lender(s)
deliverable under Article 5 hereof, no Consent of, or registration, declaration
or filing with, or permit from, any governmental entity is required to be
obtained or made by or with respect to the
Company or the Seller in connection with the execution, delivery and
performance of this Agreement or the consummation of the
Transactions.
2.6. Litigation. Except
as set forth in the Disclosure Materials, there is no action against or
affecting the Company or any of its respective properties which (a) adversely
affects or challenges the legality, validity or enforceability of any of this
Agreement or the delivery of the Shares or (b) could, if there were an
unfavorable decision, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect on the Company.
2.7. Compliance with Applicable
Laws. Except as set forth in the Disclosure Materials, the Company has conducted their business and
operations in compliance with all applicable Laws, except for instances of
noncompliance that, individually and in the aggregate, have not had and would
not reasonably be expected to have a Material Adverse Effect on the Company.
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2.8. Contracts. Except
as disclosed in the Disclosure Materials, there are no Contracts that are
material to the business, properties, assets, condition (financial or
otherwise), results of operations or prospects of the
Company. The Company is not in violation of or in default
under (nor does there exist any condition which upon the passage of time or the
giving of notice would cause such a violation of or default under) any Contract
to which it is a party or by which it or any of its properties or assets is
bound, except for violations or defaults that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect on the
Company.
2.9. Title to
Properties. Except as set forth in the Disclosure Materials,
the Company does not own any real
property. The Company has
sufficient title to, or valid leasehold interests in, all of its properties and
assets used in the conduct of its businesses, except to the extent the failure
of having such sufficient title or valid leasehold interest, would not
reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, the current
assets of the Company constitute all of the
assets required for use in connection with the businesses currently carried on
by the Company and are adequate to conduct
such businesses as currently conducted.
2.10. Transactions with Affiliates
and Employees. Except as set forth in the Disclosure
Materials, to the knowledge of the Company,
none of the officers or directors of the
Company and none of its employees is presently a party to any
transaction with the Company (other than
for services as employees, officers and directors), including any Contract or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
2.11. Solvency. [Based
on the financial condition of the Company
as of the Closing Date (and assuming that the Closing shall have occurred), (a)
the Company’s fair
saleable value of its assets exceeds the amount that will be required to be paid
on or in respect of the Company’s existing
debts and other liabilities (including known contingent liabilities) as they
mature, (b) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and
projected capital requirements and capital availability thereof, and (c) the
current cash flow of the Company, together
with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its debt when such amounts are required to be paid.]
ARTICLE
3.
REPRESENTATIONS AND
WARRANTIES
The Purchaser represents and warrants as follows to the Company and the Seller.
3.1. Organization;
Authority. The
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite
corporate or partnership power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution, delivery and performance by the Purchaser
of the transactions contemplated by this Agreement has been duly authorized by
all necessary corporate or, if the Purchaser is not a corporation, such
partnership, limited liability company or other applicable like action, on the
part of the Purchaser. This Agreement has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
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3.2. Knowledge and
Experience. Purchaser has such knowledge and experience in financial and
business matters so as to be capable of evaluating and understanding, and has
evaluated and understood, the merits and risks of purchasing the
Shares. The Purchaser has reviewed copies of such documents and other
information as Purchaser has deemed necessary in order to make an informed
investment decision with respect to its purchase of the Shares and the Purchaser
is not relying upon the Seller for the accuracy or completeness of any of the
information reviewed by the Purchaser, including all information filed by the
Company with the Securities and Exchange Commission (the “Commission”).
3.3. Non-reliance on
Communications. Purchaser is relying solely on Purchaser’s own
decision or the advice of Purchaser’s own adviser(s) with respect to purchasing
the Shares and the acquisition of the Shares, and has neither received nor
relied on any communication from the Seller or its agents regarding any legal,
investment or tax advice relating to purchasing the Shares and the acquisition
of the Shares.
3.4. Substantial
Risks. Purchaser recognizes that investments in the Company
involve substantial risks, including the risk factors described in the Seller’s
Annual Report on Form 10-KSB filed on April 14, 2008. Purchaser has
taken full cognizance of, and understands, such risks and has obtained
sufficient information to evaluate the merits and risks of purchasing the Shares
and the acquisition of the Shares. Purchaser will have sufficient liquidity with
respect to Purchaser’s net worth for an adequate period of time to provide for
Purchaser’s needs and contingencies.
3.5. No Warranties of Financial
Results. Purchaser confirms that none of the Seller’s members,
officers nor any of the Seller’s agents have made any warranties concerning the
purchase of the Shares, including, without limitation, any warranties concerning
anticipated financial results, or the likelihood of success of the operations,
of the Company.
3.6. No Government
Endorsement. Purchaser understands that no federal, state or
other governmental agency of the United States or any other territory or nation
has passed on or made any recommendation or endorsement of an investment in the
Shares.
3.7. No Express or Implied
Warranty. Purchaser acknowledges and agrees that, except as
expressly set forth in Article II of this Agreement, the Seller makes no
representation or warranty, express or implied, at law or in equity, in respect
of any matter relating to the Company, including, without limitation, the
assets, financial condition, liabilities, operations or prospects of the Company
or in respect of the transactions contemplated by this Agreement, and any such
other representations or warranties are hereby expressly disclaimed by the
Seller. Purchaser further acknowledges and agrees that the Seller is
an affiliate of the Company and as a result may be aware of certain non-public
material information concerning the Company. Purchaser waives any
claims that may arise as a result of the Seller’s knowledge regarding the
Company.
ARTICLE
4.
OTHER AGREEMENTS OF THE
PARTIES
4.1. Securities Laws Disclosure;
Publicity. Within
four Business Days following the execution of this Agreement the Company is
obligated file a Current Report on Form 8-K disclosing the material terms of
this Agreement and on the fourth Business Day following the Closing Date the
Company is obligated to file an additional Current Report on Form 8-K to
disclose the Closing. In addition, the Company will make such other
filings and notices in the manner and time required by the
Commission. “Business Day” means any day except Saturday, Sunday and
any day which is a federal legal holiday or a day on which banking institutions
in the State of New York are authorized or required by law or other governmental
action to close.
5
4.2. Release. The
Purchaser and its respective affiliates and/or heirs, hereby releases and
forever discharges the Purchaser and its officers, directors, employees, agents,
counsels, accountants, affiliates and heirs (collectively, the “Releasees”) from any and all
claims, demands, judgments, proceedings, causes of action, orders, obligations,
contracts, agreements, liens, accounts, costs and expenses (including attorney’s
fees and court costs), debts and liabilities whatsoever, whether known or
unknown, suspected or unsuspected, matured or unmatured, both at law (including
federal and state securities laws) and in equity, which the Company, the
Purchaser or any of their respective officers, directors, employees, agents,
counsels, accountants, affiliates and heirs now have, have ever had against the
Releasees arising contemporaneously with or prior to the date hereof or on
account of or arising out of any matter, cause, event or omission of any kind or
nature occurring contemporaneously with or prior to the date
hereof. The Purchaser hereby irrevocably covenants to refrain
from, directly or indirectly, asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against any
Releasee, based upon any matter purported to be released
hereby. Without in any way limiting any of the rights and remedies
otherwise available to any Releasee, the Purchaser shall indemnify and hold
harmless each Releasee from and against all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, liabilities, obligations, security interests, taxes,
liens, losses, lost value, expenses and fees (including attorneys’ fees and
court costs) arising directly or indirectly from or in connection with (i) the
assertion by or on behalf of the Purchaser or any of its affiliates and/or heirs
of any claim or other matter purported to be released hereunder and (ii) the
assertion by any third party of any claim or demand against any Releasee which
claim or demand arises directly or indirectly from, or in connection with, any
assertion by or on behalf of the Purchaser or any of its affiliates and/or heirs
against any third party of any claims or other matters purported to be released
hereunder.
4.3. Further
Action. The
Parties agree that if at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party may reasonably
request, all at the sole cost and expense of the requesting Party.
ARTICLE
5.
CONDITIONS PRECEDENT TO
CLOSING
5.1. Conditions Precedent to the
Obligations of the Purchaser to Purchase Shares. The
obligation of the Purchaser to acquire Shares at the Closing is subject to the
satisfaction or waiver by the Purchaser, at or before the Closing, of each of
the following conditions:
(a) Seller
Deliverables. The Seller shall have delivered the Seller
Deliverables in accordance with Section 1.3(a);
(b) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of the
date when made and as of the Closing as though made on and as of such
date;
6
(c) Performance. The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by it at or prior to the
Closing;
(d) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by this
Agreement; and
(e) Termination. This
Agreement shall not have been terminated as to the Purchaser in accordance with
Section 6.5.
5.2. Conditions Precedent to the
Obligations of the Seller to Sell Shares. The
obligation of the Seller to sell Shares at the Closing is subject to the
satisfaction or waiver by the Seller, at or before the Closing, of each of the
following conditions:
(a) Purchaser
Deliverables. The Purchaser shall have delivered the Purchaser
Deliverables in accordance with Section 1.3(b);
(b) Representations and
Warranties. The representations and warranties of the
Purchaser contained herein shall be true and correct in all material respects as
of the date when made and as of the Closing Date as though made on and as of
such date;
(c) Performance. The
Purchaser shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Purchaser at or prior to the
Closing;
(d) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by this
Agreement; and
(e) Termination. This
Agreement shall not have been terminated as to the Purchaser in accordance with
Section 6.5.
ARTICLE
6.
MISCELLANEOUS
6.1. Fees and
Expenses. Each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Seller shall pay all stamp and other taxes and duties
levied in connection with the issuance of the Shares.
6.2. Entire
Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This
Agreement and its terms may not be changed orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. It is understood that
this Agreement may be prepared and executed in both the English and Chinese
languages, with both versions having legal efficacy. If a dispute
arises as to the interpretation of a particular provision of this Agreement
because of differences between the Chinese and English languages, the English
version shall prevail.
7
6.3. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section 6.3 prior to 5:30 p.m. (New York City time) on
a Business Day, (b) the next Business Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified in this Section 6.3 on a day that is not a Business Day or later than
5:30 p.m. (New York City time) on any Business Day, (c) the Business Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications
shall be as follows:
If to the
Purchaser, to:
17A Tower A Maples International
Center
No. 32 Xizhiman North
Street
Haidian District, Beijing,
China
Attention: Ye
Xun
Facsimile
No.: (86) 10 82275116
Telephone
No.: (86) 10 82275854
If to the
Company or the Seller, to:
Pillsbury
Winthrop Shaw Pittman LLP
2300 N
Street, N.W.
Washington,
DC 20037
Attention: Scott
C. Kline, Esq.
Facsimile
No.: 202.663.8007
Telephone
No.: 202.663.8233
or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.
6.4. Amendments; Waivers; No
Additional Consideration. No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Seller and the Purchaser holding a majority of the
Shares. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
6.5. Termination. This
Agreement may be terminated prior to Closing:
(a) by
written agreement of the Purchaser and the Seller; and
(b) by the
Seller or the Purchaser upon written notice to the other, if the Closing shall
not have taken place by 6:30 p.m. Eastern time on the thirtieth (30th)
calendar day following the date of this Agreement; provided, that if
such day should fall on a day that is not a Business Day, the Outside Date shall
be deemed the next day that is a Business Day; provided further,
that the right to terminate this Agreement under this Section 6.5(b) shall
not be available to any Party whose failure to comply with its obligations under
this Agreement has been the cause of or resulted in the failure of the Closing
to occur on or before such time.
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Upon a termination in accordance with
this Section 6.5, the Parties shall not have any further obligation or liability
(including as arising from such termination) to the other or any liability under
this Agreement as a result therefrom.
6.6. Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. This Agreement
shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
6.7. Successors and
Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Seller may not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser. The Purchaser may assign any or all of its rights
under this Agreement to any Person to whom the Purchaser assigns or transfers
any Shares, provided such transferee agrees in writing to be bound, with respect
to the transferred Shares, by the provisions hereof that apply to the
“Purchaser.”
6.8. No Third-Party
Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set forth
in Section 4.2 (as to the Releasees).
6.9. Governing
Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware, without regard to the
principles of conflicts of law thereof. Each party agrees that any
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened (each a “Proceeding”) concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, employees or agents) shall be commenced exclusively in the Delaware
Courts. Each of the Parties submits to the jurisdiction of any state
or federal court sitting in Clark County, Delaware, in any Proceeding arising
out of or relating to this Agreement and agrees that all claims in respect of
the action or proceeding may be heard and determined in any such court. Each of
the Parties waives any defense of inconvenient forum to the maintenance of any
Proceeding so brought and waives any bond, surety, or other security that might
be required of any other Party with respect thereto. Any Party may make service
on any other Party by sending or delivering a copy of the process to the Party
to be served at the address and in the manner provided for the giving of notices
in Section 6.3 above. Nothing in this Section 6.10, however, shall affect the
right of any Party to bring any Proceeding arising out of or relating to this
Agreement in any other court or to serve legal process in any other manner
permitted by law or at equity. Each Party agrees that a final judgment in any
Proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law or at equity. If
either Party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing Party in such Proceeding shall be reimbursed by
the other Party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
Proceeding.
9
6.10. Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares for a period of 24
months.
6.11. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
6.12. Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.13. Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, the Purchaser and the Seller will be
entitled to specific performance under this Agreement. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be
adequate.
6.14. Payment Set
Aside. To
the extent that the Seller makes a payment or payments to the Purchaser under
this Agreement or the Purchaser enforces or exercises its rights hereunder, and
such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Seller, a trustee, receiver or any
other person under any law (including, without limitation, any bankruptcy law,
state or federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
6.15. Limitation of
Liability. Notwithstanding
anything herein to the contrary, each of the Company and the Seller acknowledges
and agrees that the liability of the Purchaser arising directly or indirectly
hereunder, of any and every nature whatsoever shall be satisfied
solely out of the assets of the Purchaser, and that no trustee, officer, other
investment vehicle or any other affiliate of the Company or the Seller,
shareholder or holder of shares of beneficial interest of such a Party shall be
personally liable for any liabilities of the Purchaser.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW]
10
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase and Sale
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
SINOBIOMED
INC.
|
|||
|
|
By:
|
/s/ Chris
Metcalf
|
|
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Name:
Chris Metcalf
|
|||
|
Title:
Director
|
|||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
PURCHASER
AND COMPANY SIGNATURE PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase and Sale
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
CHINA
NONFERROUS METALS RESOURCE
GEOLOGICAL
SURVEY INC.
|
|||
|
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By:
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/s/ Ye
Xun
|
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Name:
Ye Xun
|
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Title:
Chairman
|
|||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
COMPANY
SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase and Sale
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
WANXIN
BIO-TECHNOLOGY LIMITED
|
|||
|
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By:
|
/s/ Chris
Metcalf
|
|
|
Name:
Chris Metcalf
|
|||
|
Title:
Director
|
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