STOCKPURCHASE AGREEMENT

 

This STOCK PURCHASE AGREEMENT (this “Agreement”) has been made as of December 21, 2009, between Mr. Hongjun Ma (“Seller”) and Ankang Agriculture (Dalian) Co., Ltd. (“Purchaser”).

 

 

 Seller owns 2,010,000 shares, representing approximately 67% of the outstanding shares, of the capital stock of Changbai Eco-Beverage Co., Ltd. (the “Company”), and is a director and General Manager of the Company.

 

 The Seller desires to sell to Purchaser, and Purchaser is willing to purchase 1,800,000 shares, representing 60% of the outstanding shares, of the capital stock of the Company (the “Shares”), on the terms and subject to the conditions set forth in this Agreement,

 

NOW, THEREFORE, in consideration of the premises and the representations, warranties and covenants herein contained, the parties agree as follows:

 

 

 

In addition to the other definitions contained in this Agreement, the following terms will, when used in this Agreement, have the following respective meanings:

 

“Affiliate” means a Person that, directly or indirectly, controls, is controlled by, or is under common control with, the referenced party.

 

“Claim” means any contest, claim, demand, assessment, action, suit, cause of action, complaint, litigation, proceeding, hearing, arbitration, investigation or notice of any of the foregoing involving any Person.

 

 “Code” means the Internal Revenue Code of 1986, as amended, together with all rules and regulations promulgated thereunder.

 

“Liens” means any and all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any kind.

 

 “Person” means and includes any individual, partnership, corporation, trust, company, unincorporated organization, joint venture or other entity, and any Governmental Entity.

 

 “Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, trust or other entity of which such Person, directly or indirectly through an Affiliate, owns an amount of voting securities, or possesses other ownership interests, having the power, direct or indirect, to elect a majority of the Board of Directors or other governing body thereof.

 

 “U.S.” means the United States of America.

 

 

In this Agreement, unless the express context otherwise requires:

 

(a) the words “herein,” “hereof” and “hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement;

 

(b) references to “Article” or “Section” are to the respective Articles and Sections of this Agreement, and references to “Exhibit” or “Schedule” are to the respective Exhibits and Schedules annexed hereto;

 

(c) references to a “party” means a party to this Agreement and include references to such party’s successors and permitted assigns;

 

(d) references to a “third party” means a Person that is neither a Party to this Agreement nor an Affiliate thereof;

 

(e) the terms “dollars” and “$” means U.S. dollars;

 

(f) terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

 

(g) the masculine pronoun includes the feminine and the neuter, and vice versa, as appropriate in the context; and

 

(h) wherever the word “include,” “includes” or “including is used in this Agreement, it will be deemed to be followed by the words “without limitation.”

 

 

2.1 Purchase and Sale of Shares. On the terms and subject to the conditions set forth in this Agreement, simultaneously with the execution and delivery of this Agreement, Seller agrees to sell, transfer, convey and deliver to the Purchaser or its designee, and the Purchaser agrees to acquire and purchase from Seller, free and clear of all Liens, all of the Seller’s right, title and interest in and to the Shares.

2.2 Purchase Price for Shares. The total purchase price for the Shares shall be $10,250,403 (70 million RMB), which shall be payable at the closing referred to in Article 3 of this Agreement.

2.3 Deposit. The Purchaser shall deposit $5,125,201 (35 million RMB) (the “Deposit”) within five days after the date hereof.  If the transaction is not approved by the governmental authorities in the PRC by February 4th, 2010 the Deposit shall be returned to the Purchaser, unless the failure to close is attributable solely to the failure of Purchaser to perform its obligations under this Agreement in which case the Seller shall be entitled to the Deposit.

 

 

3.1 General.  The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place by March 25, 2010, or such other date as may be mutually agreed upon by the parties (the “Closing Date”) by exchange of documents among the parties by fax, electronic transmission or courier, as appropriate.

 

3.2 Deliveries at the Closing. At the Closing: (i) the Seller shall deliver to the Purchaser: (a) stock certificates evidencing the Shares, endorsed in blank or accompanied by duly executed assignment documents in favor of Purchaser or its designee, and (ii) the Purchaser shall deliver to the Seller the remaining balance of Purchase Price by wire transfer to an account designated by Seller.

 

 

Seller represents and warrants to the Purchaser as follows, as of the date hereof and as of the Closing Date:

 

4.1 Due Execution and Delivery; Binding Obligation. This Agreement has been duly and validly executed by the Seller and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by limitations on the availability of equitable remedies.

 

4.2 Ownership of Shares. The Shares are owned of record by the Seller and are validly issued and outstanding, fully paid for and non-assessable with no personal liability attaching to the ownership thereof.  The Seller owns the Shares free and clear of all Liens, and upon delivery of the Shares to the Purchaser, the Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens.  The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any capital stock of the Company (other than pursuant to this Agreement).  The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.

 

4.3 No Authorizations or Consents Required. Except for authorization from Chinese governmental authorities, no permit, consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and delivery by the seller of this agreement and the consummation of the transactions contemplated hereby.

 

4.4 No Breach or Conflict. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby or compliance with the terms and conditions hereof by the Seller will violate or result in a breach of any term or provision of any Agreement to which the Seller or the Company is bound or is a party, or be in conflict with or constitute a default under, or cause the acceleration of the maturity of any obligation of the Seller or the Company under any existing agreement or violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Seller or the Company or any properties or assets of the Seller or the Company.

 

4.5 Organization. The Company is a corporation duly organized, validly existing and in good standing under the laws of China and has the corporate power and is duly authorized, qualified, franchised and licensed under all applicable laws, regulations, ordinances and orders of public authorities to own all of its properties and assets and to carry on its business in all material respects as it is now being conducted.

 

4.6 Capitalization. The authorized capitalization of the Company consists of 3,000,000_ shares, all of one class common stock. As of the date hereof, there are 3,000,000 shares of stock issued and outstanding. The Company has no other securities, warrants or options authorized or issued.

 

4.7 Books & Records. The books and records, financial and others, of the Company are in all material respects complete and correct and have been maintained in accordance with good business accounting practices.

 

4.8 Title and Related Matters. The Company has good and marketable title to and is the sole and exclusive owner of all of its properties, inventory, interests in properties and assets, real and personal (collectively, the “Assets”) free and clear of all liens, pledges, charges or encumbrances. The Company owns free and clear of any liens, claims, encumbrances, royalty interests or other restrictions or limitations of any nature whatsoever and all procedures, techniques, marketing plans, business plans, methods of management or other information utilized in connection with the Company’s business. No third party has any right to, and the Company has not received any notice of infringement of or conflict with asserted rights of others with respect to any product, technology, data, trade secrets, know-how, proprietary techniques, trademarks, service marks, trade names or copyrights which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a materially adverse affect on the business, operations, financial conditions or income of the Company or any material portion of its properties, assets or rights.

 

4.9 Litigation and Proceedings. There are no actions, suits or proceedings pending or threatened by or against or affecting the Company, at law or in equity, before any court or other governmental agency or instrumentality, domestic or foreign or before any arbitrator of any kind that would have a material adverse effect on the business, operations, financial condition, income or business prospects of the Company. The Company does not have any knowledge of any default on its part with respect to any judgment, order, writ, injunction, decree, award, rule or regulation of any court, arbitrator or governmental agency or instrumentality.

 

4.10 No Material Contract Defaults. To the best of Seller’s knowledge and belief, the Company is not in default in any material respect under the terms of any outstanding contract, agreement, lease or other commitment which is material to the business, operations, properties, assets or condition of the Company, and there is no event of default in any material respect under any such contract, agreement, lease or other commitment in respect of which the Company has not taken adequate steps to prevent such a default from occurring.

 

 

 

 

 

 

 

The Purchaser represents and warrants to the Seller as follows:

 

 

5.3 No Breach or Conflict. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by the Purchaser with any of the provisions hereof will: violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien upon any of the properties or assets of, the Purchaser under any of the terms, conditions or provisions of any material note, bond, indenture, mortgage, deed or trust, license, lease, agreement or other instrument or obligation to which Purchaser is a party or by which purchaser or any of purchaser’s properties or assets may be bound or affected, except for such violations, conflicts, breaches or defaults as do not have, in the aggregate, any material adverse effect; or violate any material order, writ, injunction, decree, statute, rule or regulation applicable to the Purchaser or any of Purchaser’s properties or assets, except for such violations which do not have, in the aggregate, any material adverse effect.

 

 

 

6.1 Financial Statements of the Company.  Seller shall cause the Company to prepare and deliver to the Purchaser prior to the Closing consolidated financial statements of the Company and its subsidiaries as at and for the for the years ended December 31, 2008 and 2009, including balance sheets and statements of operations and cash flows, audited and reported on by a firm of public accountants acceptable to Purchaser (the “Financial Statements”).

 

6.2 Access to Properties and Records. Prior to Closing, Seller as a director and General Manager of the Company will afford to the officers and authorized representatives of the Purchaser full access to the properties, books and records of the Company, in order that Purchaser may have full opportunity to make such reasonable investigation as it shall desire to make of the affairs of the Company and will furnish the Purchaser with such additional financial and operating data and other information as to the business and properties of the Company, as the Purchaser shall from time to time reasonably request.

 

6.3 Chinese Government Authorization.  Seller will, and will cause the Company, to use their best efforts to obtain the requisite approval of Chinese governmental authorities to the sale of the Shares to Purchaser contemplated by this Agreement (the “Chinese Government Authorization”) and the Purchaser agrees to cooperate with Seller and the Company in that effort to obtain such authorization.

 

6.4 Maintain the Business of the Company.

 

(a) From and after the date of this Agreement until   the Closing Date, Seller will cause the Company to use its best efforts to:

 

      (i) maintain and keep its properties in good repair and condition as at present, except for depreciation due to ordinary wear and tear and damage due to casualty;

 

      (ii) maintain in full force and effect insurance comparable in amount and in scope of coverage to that now maintained by it; and

 

      (iii) perform in all material respects all of its obligations under material contracts, leases and instruments relating to or affecting its assets, properties and business.

 

(b) From and after the date of this Agreement until the Closing Date, Seller will cause the Company not to:

 

      (i) make any change in its organizational documents;

 

(ii) declare or pay any dividend on its outstanding shares of capital stock, except as may otherwise be required by law, or effect any stock split or otherwise change its capitalization;

 

(iii) enter into or amend any employment, severance or agreements or arrangements with any directors or officers;

 

(iii) grant, confer or award any options, warrants, conversion rights or other rights not existing on the date hereof to acquire any shares of its capital stock;

 

(iv) purchase or redeem any shares of its capital stock;

 

(v) incur any indebtedness other than in the ordinary course of business consistent with past practice.

 

 

The obligations of Purchaser under this Agreement are subject to the satisfaction, at or before the Closing Date, of the following conditions any or all of which may be waived by Purchaser:

7.1 Accuracy of Representations. The representations and warranties made by Seller in this Agreement were true when made and shall be true at the Closing Date with the same force and effect as if such representations and warranties were made at the Closing Date, Seller shall have performed or complied with all covenants and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing, no litigation, proceeding, investigation or inquiry is pending or, to the best knowledge of Seller, threatened, which might result in an action to enjoin or prevent the consummation of the transactions contemplated by this Agreement which might result in any material adverse change in any of the assets, properties, business or operations of the Company, and Seller have furnished Purchaser with a certificate dated the Closing Date to the foregoing effect.

 

7.2 No Material Adverse Change. Prior to the Closing Date, there shall not have occurred any material adverse change in the financial condition, business or operations of the Company nor shall any event have occurred which, with the lapse of time or the giving of notice, may cause or create any material adverse change in the financial condition, business or operations of the Company.

 

7.3 Financial Statements.  The Purchaser shall have received the Financial Statements and such further documents, certificates or instruments relating to the transactions contemplated hereby as Purchaser may reasonably request, and Purchaser shall have completed its due diligence investigation of the Company, all of which is satisfactory to Purchaser.

 

7.4 Chinese Government Authorization. The Seller shall have obtained Chinese Government Authorization to the consummation of the sale of the Shares to Purchaser.

 

 

 

The obligations of Seller under this Agreement are subject to the satisfaction, at or before the Closing Date of the following conditions, any or all of which may be waived by Seller:

 

 

8.1 Accuracy of Representations. The representations and warranties made by Purchaser in this Agreement were true when made and shall be true as of the Closing Date with the same force and effect as if such representations and warranties were made at and as of the Closing Date, and the Purchaser shall have performed and complied with all covenants and conditions required by this Agreement to be performed or complied with by the Purchaser prior to or at the Closing. Seller shall have been furnished with a certificate, signed by a duly authorized executive officer of the Purchaser and dated the Closing Date, to the foregoing effect.

 

8.2. Chinese Government Authorization. The Seller shall have obtained Chinese Government Authorization to the consummation of the sale of the Shares to Purchaser.

 

 

9.1  Survival of Representations and Warranties.  All of the representations, warranties and covenants of the parties shall survive the closing hereunder (even if a party knew or had reason to know of any misrepresentation or breach of warranty by another party at the time of Closing) and continue in full force and effect for a period of twelve (12) months thereafter.

 

9.2   Indemnification Provisions for Benefit of the Purchaser.

 

(a)           In the event the Seller breaches (or in the event any third party alleges facts that, if true, would mean the Seller has breached) any of its representations, warranties, and covenants contained herein, then the Seller shall indemnify the Purchaser from and against the entirety of any adverse consequences the Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).

 

(b)           The Seller shall indemnify the Purchaser from and against the entirety of any liabilities arising out of the operations of the Company prior to the Closing Date.

 

9.3 Indemnification Provisions for Benefit of the Seller. In the event the Purchaser breaches (or in the event any third party alleges facts that, if true, would mean the purchaser has breached) any of its representations, warranties, and covenants contained herein, then the purchaser shall indemnify the seller from and against the entirety of any adverse consequences the Seller may suffer resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).

 

 

(a) If any third party shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article 9, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced.

 

  (b) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within 10 days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.

 

  (c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 9.4(b), (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim,  (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third  Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably).

 

   (d) In the event any of the conditions in Section 9.4(b) is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article 9.

 

 

 

 

 

 

 

 

 

 

 

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the undersigned have executed, or caused to be executed on its behalf by an agent thereunto duly authorized, this Agreement as of the date first above written.