SHARE EXCHANGE AGREEMENT
EXHIBIT
10.1
THIS
SHARE EXCHANGE AGREEMENT, dated as of October 31, 2006, is by and between
Physical Spa & Fitness Inc., a Delaware corporation (the “Company”), and Xx.
Xxxx Xxxxx Xxx, a citizen and resident of the Hong Kong SAR of the People’s
Republic of China (“Xx. Xxx” or the "Seller"), with reference to the
following:
W
I T N E S S E T H:
A. The
Company desires to acquire from the Seller, and the Seller desires to sell
to
the Company, all of the Sale Shares in exchange for the issuance by the Company
of an aggregate of Twelve Million (12,000,000) shares (the “Company Shares”) of
the Company's common stock, par value $0.001 per share (the “Company Common
Stock”), on the terms and conditions set forth below.
B. The
Seller owns 100 % of the shares of the common stock (the “Sale Shares”) of
Ableforce International Limited, a British Virgin Islands corporation
(“Ableforce”). Ableforce is the parent company holding 100% equity interest of
Good Partner Limited (“Good Partner”), a private limited company incorporated in
Hong Kong. Good Partner is principally engaged in properties investment in
prime
locations of Hong Kong.
C. The
Company has agreed to transfer, convey and assign, and Xx. Xxx has agreed to
accept and assume 100% of the shares of the common stock of Physical Beauty
& Fitness Holdings Limited, a British Virgin Islands corporation (“Physical
Beauty”), representing all the assets and properties and all of the liabilities
and obligations of the Company, in each case as the same shall exist on the
Closing Date (as defined below); in a transaction that will be consummated
immediately after the consummation of the Exchange (as defined
below);
D. The
Company has agreed to issue an additional 3,328,070 shares of Company Common
Stock as the repayment of the total amount due to Xx. Xxx on Ableforce’s (or its
wholly owned subsidiary Good Partner’s) books and records as of 30 September
2006.
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE
I
EXCHANGE
OF SHARES
1.1 Exchange
of Shares.
Subject
to the terms and conditions of this Agreement, on the Closing Date:
(a) the
Company shall issue and deliver to the Seller a total of 15,328,070 authorized
but unissued shares of the Company Common Stock; and
(b) the
Seller agrees to deliver to the Company, one (1) share of the common stock,
par
value $1.00 per share, of Ableforce (the “Ableforce Common Stock”), representing
100% of the issued and outstanding shares of the capital stock of Ableforce
on a
fully diluted basis, along with an appropriately executed stock power endorsed
in favor of the Company. (the “Exchange”).
1.2 Time
and Place of Closing.
The
closing of the transactions contemplated hereby (the “Closing”) shall take place
at the offices of Physical Spa & Fitness Inc. at 40/F., Tower One, Times
Square, 0 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx Xxxx on or before December 31,
2006
(the “Closing Date”) at 10:00 A.M. Hong Kong time, or at such other place as the
Company and the Seller may agree.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Seller as follows:
2.1 Due
Organization and Qualification; Due Authorization.
The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby. The
Company has taken all corporate action necessary for the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby,
and this Agreement constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its respective terms, except
as may be affected by bankruptcy, insolvency, moratoria or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be
brought.
2.2 No
Conflicts or Defaults.
The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene the
Articles of Incorporation or Bylaws of the Company or (b) with or without the
giving of notice or the passage of time (i) violate, conflict with, or result
in
a breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
the Company is a party or by which the Company is bound, or any judgment, order
or decree, or any law, rule or regulation to which the Company is subject,
(ii)
terminate or give any party the right to terminate, amend, abandon or refuse
to
perform, any material agreement, arrangement or commitment to which the Company
is a party or by which the Company’s assets are bound, or (iii) accelerate or
modify, or give any party the right to accelerate or modify, the time within
which, or the terms under which, the Company is to perform any duties or
obligations or receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
2.3 Disposal
of Physical Beauty.
Immediately after the consummation of the transactions contemplated hereby,
the
Company shall transfer, convey and assign Physical Beauty to Xx. Xxx,
representing all the assets and properties and all of the liabilities and
obligations of the Company contemplated by the Disposal Agreement to be entered
into between the Company and Xx. Xxx as set forth in Exhibit A
hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Company as follows:
3.1 Title
to Shares.
The
Seller has good and marketable title to the Sale Shares and, upon consummation
of the purchase contemplated herein, the Company will acquire from the Seller
good and marketable title to the Sale Shares free and clear of all liens and
encumbrances.
3.2 Due
Authorization.
The
Seller has all requisite power and authority to execute and deliver this
Agreement, and to consummate the transactions contemplated hereby. The Seller
has taken all action necessary for the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its respective terms, except as may be affected
by
bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors' rights generally and subject to the qualification
that
the availability of equitable remedies is subject to the discretion of the
court
before which any proceeding therefore may be brought.
3.3 No
Conflicts or Defaults.
The
execution and delivery of this Agreement by the Seller and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene the
governing documents of the Ableforce, or (b) with or without the giving of
notice or the passage of time, (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant, agreement,
mortgage, indenture, lease, instrument, permit or license to which the Seller
or
Ableforce is a party or by which they or any of their assets are bound, or
any
judgment, order or decree, or any law, rule or regulation to which the Seller
or
Ableforce, or any of its or their assets are subject, (ii) terminate or give
any
party the right to terminate, amend, abandon or refuse to perform, any material
agreement, arrangement or commitment to which Seller or Ableforce is a party
or
by which Seller or Ableforce or any of its or their assets are bound, or (iii)
accelerate or modify, or give any party the right to accelerate or modify,
the
time within which, or the terms under which, Seller or Ableforce is to perform
any duties or obligations or receive any rights or benefits under any material
agreement, arrangement or commitment to which Seller or Ableforce is a
party.
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3.4 Purchase
for Investment.
(a) The
Seller is acquiring the Company Shares for investment for the Seller's own
account and not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Seller has no present intention of
selling, granting any participation in, or otherwise distributing the same.
The
Seller further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of
the
Company Shares.
(b) The
Seller understands that the Company Shares are not registered under the
Securities Act of 1933, as amended (the “Securities Act”) on the ground that the
sale and the issuance of securities hereunder is exempt from registration under
the Securities Act pursuant to Section 4(2) thereof, and that the Company's
reliance on such exemption is predicated on the Seller's representations set
forth herein. The Seller is an "accredited investor" as that term is defined
in
Rule 501(a) of Regulation D under the Securities Act.
3.5 Investment
Experience.
The
Seller acknowledges that it can bear the economic risk of its investment, and
has such knowledge and experience in financial and business matters that it
is
capable of evaluating the merits and risks of the investment in the Company
Shares.
3.6 Information.
The
Seller has carefully reviewed such information as the Seller deemed necessary
to
evaluate an investment in the Company Shares. To the full satisfaction of the
Seller, it has been furnished all materials that it has requested relating
to
the Company and the issuance of the Company Shares hereunder, and the Seller
has
been afforded the opportunity to ask questions of representatives of the Company
to obtain any information necessary to verify the accuracy of any
representations or information made or given to the Seller. Notwithstanding
the
foregoing, nothing herein shall derogate from or otherwise modify the
representations and warranties of the Company set forth in this Agreement,
on
which the Seller has relied in making an exchange of the Sale Shares for the
Company Shares.
3.7 Restricted
Securities.
The
Seller understands that the Company Shares may not be sold, transferred,
or
otherwise disposed of without registration under the Securities Act or an
exemption there from, and that in the absence of an effective registration
statement covering the Company Shares or any available exemption from
registration under the Securities Act, the Company Shares must be held
indefinitely. The Seller is aware that the Company Shares may not be sold
pursuant to Rule 144 promulgated under the Securities Act unless all of the
conditions of that Rule are met. Among the conditions for use of Rule 144
may be
the availability of current information to the public about the
Company.
3.8 Disposal
of Physical Beauty.
Immediately after the consummation of the transactions contemplated hereby,
Xx.
Xxx shall accept and assume Physical Beauty from the Company, representing
all
the assets and properties and all of the liabilities and obligations of the
Company contemplated by the Disposal Agreement to be entered into between the
Company and Xx. Xxx as set forth in Exhibit A hereto.
3.9 Organization.
Ableforce is a corporation duly organized, validly existing and in good standing
under the laws of the British Virgin Islands, and has the corporate power to
own
its properties and to conduct its business as presently conducted.
3.10
Financial
Statements.
Seller
has presented the Company with audited financial statements of Ableforce or
its
wholly owned subsidiary Good Partner Limited, a Hong Kong corporation, for
the
years ended December 31, 2004, and 2005 Such financial statements have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, and fairly present the balance sheet and results of
operations of Ableforce for the periods then presented.
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3.11
Absence
of Certain Changes or Events.
Except
as set forth in this Agreement, since the date of the most recent balance sheet
of Ableforce included in the financial statements delivered pursuant to Section
3.10 hereof:
(a) There
has
not been: (i) any material adverse change in the business, operations,
properties, level of inventory, assets, or condition of Ableforce, or (ii)
any
damage, destruction, or loss to Ableforce materially and adversely affecting
the
business, operations, properties, assets, or condition of
Ableforce;
(b) Ableforce
has not: (i) amended its organizational documents; (ii) declared or made, or
agreed to declare or make, any payment of dividends or distributions of any
assets of any kind whatsoever to stockholders or purchased or redeemed, or
agreed to purchase or redeem, any of their capital stock; (iii) waived any
rights of value which in the aggregate are extraordinary and material
considering the business of Ableforce; (iv) made any material change in their
method of accounting; (v) entered into any other material transactions other
than those contemplated by this Agreement; (vi) made any material accrual or
material arrangement for or payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former officer or
employee; or (vii) made any material increase in any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with their officers, directors,
or employees;
(c) Ableforce
has not (i) granted or agreed to grant any rights to purchase its registered
capital; (ii) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent) except
liabilities incurred in the ordinary course of business; (iii) paid any material
obligation or liability (absolute or contingent) other than current liabilities
reflected in or shown on the most recent balance sheet and current liabilities
incurred since that date in the ordinary course of business; (iv) sold or
transferred, or agreed to sell or transfer, any of their material assets,
properties, or rights, or agreed to cancel any material debts or claims; (v)
made or permitted any amendment or termination of any contract, agreement,
or
license to which they are a party if such amendment or termination is material,
considering the business of Ableforce; or (vi) issued, delivered, or agreed
to
issue or deliver any stock, bonds, or other corporate securities including
debentures (whether authorized and unissued or held as treasury stock);
and
(d) To
the
best knowledge of Seller, Ableforce has not become subject to any law or
regulation which materially and adversely affects, or in the future would be
reasonably expected to adversely affect, the business, operations, properties,
assets, or condition of Ableforce.
3.12 Title
and Related Matters.
Except
as provided herein or disclosed in the most recent Ableforce financial
statements and the notes thereto, Ableforce has good and marketable title to
all
of its properties, inventory, interests in properties, technology, whether
patented or unpatented (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all mortgages, liens, pledges, charges, or
encumbrances, except (i) statutory liens, mortgages, loans or claims not yet
delinquent; and (ii) such imperfections of title and easements as do not, and
will not, materially detract from, or interfere with, the present or proposed
use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties. To the best
knowledge of Seller, Ableforce’s technology does not infringe on the copyright,
patent, trade secret, know-how, or other proprietary right of any other person
or entity and comprises all such rights necessary to permit the operation of
its
businesses as now being conducted or as contemplated.
3.13 Litigation
and Proceedings.
There
are no material actions, suits, or proceedings pending or, to the knowledge
of
Seller, threatened by or against Ableforce or adversely affecting it, at law
or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. Seller 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.
3.14 Material
Contract Defaults.
Ableforce 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 financial condition of it,
and
there is no event of default or other event which, with notice or lapse of
time
or both, would constitute a default in any material respect under any such
contract, agreement, lease, or other commitment in respect of which Ableforce
has not taken adequate steps to prevent such a default from
occurring.
3.15
No
Conflict With Other Instruments.
The
execution of this Agreement and
the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement, or instrument to which Ableforce is a party or to which
any
of its properties or operations are subject.
3.16 Government
Authorizations.
Ableforce has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business
in
all material respects as conducted on the date of this Agreement. No
authorization, approval, consent, or order of, or registration, declaration,
or
filing with, any court or other governmental body is required in connection
with
the execution and delivery by Ableforce of this Agreement and the consummation
by Ableforce of the transactions contemplated hereby.
3.17 Compliance
With Laws and Regulations.
Ableforce has complied with all applicable statutes and regulations of any
governmental entity or agency thereof having jurisdiction over it, except to
the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets, or condition of it, or except to
the
extent that noncompliance would not result in the occurrence of any material
liability for Ableforce. To the best knowledge of Seller, the consummation
of
this transaction will comply with all applicable statutes and regulations,
subject to the preparation and filing of any forms required by state and federal
U.S. securities laws, and the filing of any applications or approvals with
governmental entities of the Hong Kong SAR of the People’s Republic of
China.
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ARTICLE IV
INDEMNIFICATION
4.1 Indemnity
of the Company.
The
Company agrees to defend, indemnify and hold harmless the Seller from and
against, and to reimburse the Seller with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable attorneys' fees
and disbursements, asserted against or incurred by the Seller by reason of,
arising out of, or in connection with any material breach of any representation
or warranty contained in this Agreement made by the Company or in any document
or certificate delivered by the Company pursuant to the provisions of this
Agreement or in connection with the transactions contemplated
thereby.
4.2 Indemnity
of the Seller.
The
Seller agrees to defend, indemnify and hold harmless the Company from and
against, and to reimburse the Company with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable attorneys' fees
and disbursements, asserted against or in-curred by the Company by reason of,
arising out of, or in connection with any material breach of any representation
or warranty contained in this Agreement and made by the Seller in any document
or certificate delivered by the Seller pursuant to the provisions of this
Agreement or in connection with the transactions contemplated
thereby.
4.3 Indemnification
Procedure.
A party
(an “Indemnified Party”) seeking indemnification shall give prompt notice to the
other party (the “Indemnifying Party”) of any claim for indemnification arising
under this Article 4. The Indemnifying Party shall have the right to assume
and
to control the defense of any such claim with counsel reasonably acceptable
to
such Indemnified Party, at the Indemnifying Party's own cost and expense,
including the cost and expense of reasonable attorneys' fees and disbursements
in connection with such defense, in which event the Indemnifying Party shall
not
be obligated to pay the fees and disbursements of separate counsel for such
in
such action. In the event, however, that such Indemnified Party's legal counsel
shall determine that defenses may be available to such Indemnified Party that
are different from or in addition to those available to the Indemnifying Party,
in that there could reasonably be expected to be a conflict of interest if
such
Indemnifying Party and the Indemnified Party have common counsel in any such
proceeding, or if the Indemnified Party has not assumed the defense of the
action or proceedings, then such Indemnifying Party may employ separate counsel
to represent or defend such Indemnified Party, and the Indemnifying Party shall
pay the reasonable fees and disbursements of counsel for such Indemnified Party.
No settlement of any such claim or payment in connection with any such
settlement shall be made without the prior consent of the Indemnifying Party
which consent shall not be unreasonably withheld.
ARTICLE V
DELIVERIES
5.1 Items
to
be delivered to the Seller prior to or at Closing by the Company:
(a) certificates
representing 15,328,070 shares of the Company’s $.001 par value common stock
issued in the denominations as directed by the Seller, duly authorized, validly
issued, fully paid for and non-assessable;
(b) copies
of
board, and if applicable, shareholder resolutions approving this transaction
and
authorizing the issuances of the shares hereto;
(c) a
certificate, in form reasonably acceptable to the Seller, signed by an
authorized officer of the Company dated the Closing Date, certifying that the
representations and warranties made by the Company shall be accurate in all
material respects as of the date hereof and as of the Closing Date and the
terms
and conditions of this Agreement to be performed and complied with by the
Company on or prior to the Closing Date shall have been performed and complied
with by the Company on or prior to the Closing Date;
(d) any
other
document reasonably requested by the Seller that it deems necessary for the
consummation of this transaction.
5.2 Items
to
be delivered by the Seller to the Company prior to or at Closing by
Seller:
(a) certificate
representing the Sales Shares with applicable stock powers;
(b) copies
of
board, and if applicable, shareholder resolutions approving this transaction
and
authorizing the transfer of the shares hereto;
(c) a
certificate, in form reasonably acceptable to the Company, signed by the Seller
dated the Closing Date, certifying that the representations and warranties
made
by the Seller shall be accurate in all material respects as of the date hereof
and as of the Closing Date and the terms and conditions of this Agreement to
be
performed and complied with by the Seller on or prior to the Closing Date shall
have been performed and complied with by the Seller on or prior to the Closing
Date; and
(d) any
other
document reasonably requested by the Company that it deems necessary for the
consummation of this transaction.
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ARTICLE VI
CONDITIONS
PRECEDENT
6.1 Conditions
Precedent to Closing.
The
obligations of the parties under this Agreement shall be and are subject to
fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) that
each
of the representations and warranties of the parties contained herein shall
be
true and correct at the time of the Closing Date as if such representations
and warranties were made at such time; and
(b) that
the
parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by
them
prior to or at the time of the Closing.
6.2 Conditions
to Obligations of the Seller.
The
obligations of the Seller shall be subject to fulfillment prior to or at the
Closing, of each of the following conditions:
(a) the
Company shall have paid all of its own costs and expenses associated with this
Agreement and the transactions contemplated herein;
(b) the
Company shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement;
6.3 Conditions
to Obligations of the Company.
The
obligations of the Company shall be subject to fulfillment prior to or at the
Closing, of each of the following conditions:
(a) The
Seller shall have paid all of their own costs and expenses associated with
this
Agreement and the transactions contemplated herein;
(b) The
Seller shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the
transactions contemplated by this Agreement.
ARTICLE VII
NO
PUBLIC
DISCLOSURE
Without
the prior written consent of the others, none of the Company or the Seller
will,
and will each cause their respective representatives not to, make any release
to
the press or other public disclosure with respect to either the fact that
discussions or negotiations have taken place concerning the transactions
contemplated by this Agreement, the existence or contents of this Agreement
or
any prior correspondence relating to this transactions contemplated by this
Agreement, except for such public disclosure as may be necessary, in the written
opinion of outside counsel (reasonably satisfactory to the other parties) for
the party proposing to make the disclosure not to be in violation of or default
under any applicable law, regulation or governmental order. If either party
proposes to make any disclosure based upon such an opinion, that party will
deliver a copy of such opinion to the other party, together with the text of
the
proposed disclosure, as far in advance of its disclosure as is practicable,
and
will in good faith consult with and consider the suggestions of the other party
concerning the nature and scope of the information it proposes to
disclose.
ARTICLE VIII
TERMINATION
This
Agreement may be terminated at any time before or, at Closing, by:
(a) the
mutual agreement of the parties;
(b) any
party
if:
(i) any
provision of this Agreement applicable to a party shall be materially untrue
or
fail to be accomplished;
(ii)
any
legal
proceeding shall have been instituted or shall be imminently threatening to
delay, restrain or prevent the
consummation
of this Agreement; or
(iii)
the
conditions precedents to Closing are not satisfied.
Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each said party shall bear all costs
and
expenses as each party has incurred and no party shall be liable to the
other.
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ARTICLE IX
MISCELLANEOUS
9.1 Survival
of Representations, Warranties and Agreements.
All
representa-tions and warranties and statements made by a party to in this
Agreement or in any document or certificate de-livered pursuant hereto shall
survive the Closing Date for so long as the applicable statute of limitations
shall remain open. Each of the parties hereto is executing and carrying out
the
provisions of this agreement in reliance upon the representations, warranties
and covenants and agreements contained in this agreement or at the closing
of
the transactions herein provided for and not upon any investigation which it
might have made or any representations, warranty, agreement, promise or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
9.2 Access
to Books and Records.
During
the course of this transaction through Closing, each party agrees to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. The parties further agree to keep confidential and not
use for their own benefit, except in accordance with this Agreement any
information or documentation obtained in connection with any such
investigation.
9.3 Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that any
further deeds, assignments or assurances in law or that any other things are
necessary, desirable or proper to complete the merger in accordance with the
terms of this agreement or to vest,
perfect or confirm, of record or otherwise, the title to any property or rights
of the parties hereto, the parties agree that their proper officers and
directors shall execute and deliver all such proper deeds, assignments and
assurances in law and do all things necessary, desirable or proper to vest,
perfect or confirm title to such property or rights and otherwise to carry
out
the purpose of this Agreement, and that the proper officers and directors the
parties are
fully
authorized to take any and all such action.
9.4 Notice.
All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
If
to the Company:
00/X.,
Xxxxx Xxx, Xxxxx Xxxxxx
0
Xxxxxxxx Xxxxxx,
Xxxxxxxx
Xxx, Xxxx Xxxx
Attn:
Xx.
Xxxxxx Xxx
Telecopy:
852.2573.2930
with
a copy to:
Xxxxxx
X.
Xxxxxx, Esq.
Xxxxxx
& Xxxxxxxxx, P.A.
00000
Xxxxxx Xxxxx,
Xxxxx
000X
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telecopy:
704.895.1528
If
to the Seller:
Flat
A,
5/F., Mei Foo Sun Chuen
000
Xxxxxxxx,
Xxxxxxx,
Xxxx Xxxx
Attn:
Xx.
Xxxx Xxxxx XXX
Telecopy:
852.2890.9484
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9.5 Entire
Agreement.
This
Agreement, and any instruments and agreements to be executed pursuant to this
Agreement, sets forth the entire understanding of the parties hereto with
respect to its subject matter, merges and supersedes all prior and
contemporaneous understandings with respect to its subject matter and may not
be
waived or modified, in whole or in part, except by a writing signed by each
of
the parties hereto. No waiver of any provision of this Agreement in any instance
shall be deemed to be a waiver of the same or any other provision in any other
instance. Failure of any party to enforce any provision of this Agreement shall
not be construed as a waiver of its rights under such provision.
9.6 Successors
and Assigns.
This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent of
the
other parties, which consent shall not be unreasonably withheld.
9.7 Governing
Law.
This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of Delaware as applicable to agreements made and fully
to
be performed in such state, without giving effect to conflicts of law
principles.
9.8 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
9.9 Construction.
Headings contained in this Agreement are for convenience only and shall not
be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. As used herein, the singular includes the plural, and the
masculine, feminine and neuter gender each includes the others where the context
so indicates.
9.10 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, this Agreement shall be interpreted and enforceable
as
if such provision were severed or limited, but only to the extent necessary
to
render such provision and this Agreement enforceable.
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IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as
of
the date first set forth above.
PHYSICAL
SPA & FITNESS INC.
By:
/s/
Xxxxxx Xxx
Name:
Xxxxxx Xxx
Its:
Chief Financial Officer
Seller:
NGAI XXXXX XXX
By:
/s/
Ngai Xxxxx Xxx
Name:
Ngai Xxxxx Xxx
(In
His
Individual Capacity)
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