AGREEMENT AND PLAN OF REORGANIZATION
Exhibit 10.1
1.1 Shares
Being Purchased. Subject
to the terms and conditions of this Agreement, at the closing provided for
in
Section 2 hereof (the “Closing”), the Control Stockholder shall sell, assign,
transfer and deliver to ASP the Sold Shares.
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) made and entered into as
of January 29, 2008 by and among, Max Nutrition, Inc., a Nevada corporation
(hereinafter referred to as the “Company” or “MXNU”), Xxxxxxxx Xxxxx (the
“Control Stockholder”) and American Spring Pharmaceutical, Inc., a Delaware
corporation (the “Buyer” or “ASP”).
RECITALS
WHEREAS,
the Control Stockholder owns a total of 8,200,000 restricted shares of the
Company’s common stock (“Control Stock”) which shares were not included in the
Company’s Registration Statement on Form SB-2 number 333-141327ordered effective
July 23, 2007 (the “Registration Statement”); and
WHEREAS,
ASP desires to (i) acquire 7,700,000 shares out of the Control Stock (the “Sold
Shares”) and the Control Stockholder desires to sell the Control Stock for
$183,000 (the “Purchase Price”)and (ii) contribute of 100% of the
registered capital of Gansu Dasheng Biology Science & Technology Stock Co.,
Ltd., a corporation organized under the laws of The People’s Republic of China
(“Gansu Dasheng” and the shares being hereinafter called the “Gansu Dasheng
Shares”) to the Company in exchange for 20,000,000 authorized, but unissued,
shares of the Company’s common stock (the “Contirbution””) and the Control
Stockholder desires to sell all of his Sold Shares to ASP for $183,000
conditioned upon the Contirbution and the Company is willing to accept the
Contribution on the terms hereinafter set forth .
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and in reliance upon the representations and warranties hereinafter
set
forth, the parties agree as follows:
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1.
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PURCHASE
OF THE SHARES AND CONSIDERATION
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1.2 Consideration.
Subject to the terms and conditions
of this Agreement and in consideration of the sale, assignment, transfer and
delivery of the Sold Shares to ASP, at the Closing ASP shall transfer the Gansu
Dasheng Shares to the Company and pay the Control Shareholder $183,000, said
$183,000 (the “Cash Portion”) has been deposited by ASP in an account maintained
by the attorney for the Control Stockholder to be applied solely in accordance
with this Agreement and upon closing shall be delivered in accordance with
the
written instructions of the Control Stockholder. If this Agreement shall be
terminated, the Cash Portion shall be returned to ASP.
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2.
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THE
CLOSING
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2.1 Time
and
Place. The closing of the
transactions contemplated by this Agreement shall be held at the offices of
Xxxx
X Xxxxx, 485 Madison Avenue – Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 at 2:00 p.m.
on January 29, 2008, or on such other date and at such other time and place
as
the parties may agree upon in writing (the “Closing”).
2.2 Deliveries
by the Control Stockholder. At the Closing, the
Control
Stockholder shall deliver to ASP the stock certificate(s) representing the
Sold
Shares, duly endorsed or accompanied by stock power(s) duly executed in blank
or
otherwise in form acceptable for transfer on the books of the
Company.
2.3 Deliveries
by ASP. At
the Closing, ASP shall deliver the Purchase Price to the Control
Shareholder and Gansu Dasheng Shares to the Company in form acceptable to
counsel to the Company.
2.4
At the Closing, the Company shall deliver a total of 27,700,000 shares of its
common stock to the parties and the amounts set forth on a schedule
hereto.
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3.
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INDIVIDUAL
REPRESENTATIONS AND WARRANTIES OF THE CONTROL
STOCKHOLDER
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The
Control Stockholder, represents and warrants to ASP as follows:
3.1 Title.
The Control Stockholder owns all of
the Control Shares and all of the Sold Shares, and shall transfer to ASP at
the
Closing good and valid title to the Sold Shares, free and clear of all
restrictions on transfer (other than any restrictions under federal and state
securities laws), liens, claims, options, charges, pledges, security interests,
and encumbrances of every kind, character or description. The Control
Stockholder 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.
3.2 Valid
and Binding
Agreement. The Control Stockholder has the full and unrestricted right,
power and authority and capacity to execute and deliver this Agreement and
consummate the transactions contemplated herein. This Agreement has
been duly executed and delivered by the Control Stockholder and constitutes
the
valid and binding obligation of the Control Stockholder, enforceable in
accordance with its terms.
3.3 Non-contravention.
The execution and delivery of this Agreement and consummation of the
transactions contemplated hereby do not violate or conflict with or constitute
a
default under any contract, commitment, agreement, understanding, arrangement
or
restriction of any kind to which the Control Stockholder is a party or by which
the Control Stockholder or the Control Stockholder’s property is bound, or to
the knowledge of the Control Stockholder any existing applicable law, rule,
regulation, judgment, or court order. The Control Stockholder is not and will
not be required to give any notice to or obtain any consent from any Person
in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
3.4
Accurate
Information.
To the best of such Control Shareholders knowledge, after due investigation,
the
information filed by the Company pursuant to the Securities Act of 1933, as
amended (the “1933 Act”) and the Securities and Exchange Act of 1934, as amended
(the “1934 Act”) is true accurate and complete and does not omit any facts,
necessary to make such documents not misleading.
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4.
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REPRESENTATIONS
AND WARRANTIES OF ASP.
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ASP
represents and warrants to the Company and each of the Controlling Shareholders
as follows:
4.1 Authority.
ASP has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated herein. This Agreement constitutes the valid and binding obligation
of ASP, enforceable in accordance with its terms.
4.2 Information
Regarding The Buyer and The Gansu Dasheng Shares. The Buyer has delivered
to the Company
and the Control Stockholder a draft Form 8-K to be filed by the Company on
completion of the transactions contemplated by this Agreement (the “8-K Draft”).
The 8-K Draft accurately describes the Gansu Dasheng Shares and will not be
materially changed prior to filing. Counsel to the Company has confirmed the
8-K
Draft complies as to form and content with the rules and regulations of the
Securities and Exchange Commission (“SEC”) in all material
respects.
4.3 Litigation.
There is no claim, action suit or
proceeding, at law or in equity, pending or threatened against Buyer affecting
any of the Gansu Dasheng Shares, (nor, to the knowledge of the Buyer, is there
any basis therefore) that might result, either in any case or in the aggregate,
in any material adverse change in the business of Gansu Dasheng, nor is there
any judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against the Buyer or relating to the Gansu Dashing or the Gansu Dasheng Shares
having, or which insofar as can be reasonably foreseen, in the future may have,
any such effect. There is no claim, action, suit or proceeding by the Buyer
currently pending or which Buyer intends to initiate that might potentially
result in a counterclaim affecting the Gansu Dashing or the Gansu Dasheng
Shares.
4.4 No
Conflict. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not conflict with, or result
in
a breach of any term or provision of, or constitute a default under or result
in
a violation of any agreement, contract, lease, license or instrument to which
ASP is a party or by which it or any of his properties or assets are bound,
or
any judgment, decree, order, or writ by which ASP is bound or to which it or
any
of his properties or assets are subject.
4.5 Consent.
No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality is required by or with respect to ASP or the Gansu
Dasheng Shares in connection with the execution and delivery of this Agreement
or the consummation by ASP of the transactions contemplated herein.
4.6 Organization.
4.6(a) ASP
is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware;
has the corporate power and authority to carry on its business as presently
conducted; and is qualified to do business as a foreign corporation and is
in
good standing under the laws of each state in which either the ownership or
use
of the properties owned or used by it, or the nature of the activities conducted
by it, requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business or financial condition
of the Company.
4.6(b) The
copies of the Articles of Incorporation, and all amendments thereto, of the
Company, as certified by the Secretary of State of Delaware, and the bylaws
of
ASP and all amendments thereto, as certified by the Secretary of SAP, which
will
be delivered to the Company for examination prior to the Closing, are complete
and correct copies of the Articles of Incorporation and bylaws of ASP in effect
on the date hereof. All minutes of meetings and actions in writing without
a
meeting of the Board of Directors and stockholders of ASP are contained in
the
minute book of ASP, which will be delivered to the Company for examination
prior
to the Closing, and no minutes or actions in writing without a meeting will
be
included in such minute book since delivery to the Company that will not also
be
delivered to the Company. The minute book of ASP contains complete and accurate
records of all meetings and other corporate actions of its Board of Directors
and stockholders.
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5.
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REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
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The
Company represents and warrants to ASP as follows:
5.1 Authority.
The Company has all requisite
corporate power and authority to enter into this Agreement and to consummate
the
transactions contemplated herein. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated herein, have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company, enforceable in accordance
with
its terms.
5.2 Organization
5.2(a) The
Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of
Nevada; has the corporate power and authority to carry on its business as
presently conducted; and is qualified to do business as a foreign corporation
and is in good standing under the laws of each state in which either the
ownership or use of the properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business or financial condition of the Company.
5.2(b) The
copies of the Articles of Incorporation, and all amendments thereto, of the
Company, as certified by the Secretary of State of Nevada, and the bylaws of
the
Company and all amendments thereto, as certified by the Secretary of the
Company, which will be delivered to ASP for examination prior to the Closing,
are complete and correct copies of the Articles of Incorporation and bylaws
of
the Company in effect on the date hereof. All minutes of meetings and actions
in
writing without a meeting of the Board of Directors and stockholders of the
Company are contained in the minute book of the Company, which will be delivered
to ASP for examination prior to the Closing, and no minutes or actions in
writing without a meeting will be included in such minute book since delivery
to
ASP that will not also be delivered to ASP. The minute book of the Company
contains complete and accurate records of all meetings and other corporate
actions of its Board of Directors and stockholders.
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5.3
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Capitalization.
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5.3(a) The
authorized capital stock of the
Company consists of 74,000,000 shares of Common Stock, $.0001 par value, of
which 10,000,000 shares are issued and outstanding and 1,000,000 shares of
Preferred Stock, $0.0001 par value, of which there are no shares issued and
outstanding. All of the issued and outstanding shares of Common Stock of the
Company which consist solely of 10,000,000 shares of common stock previously
issued and outstanding and 20,000,000 shares of common stock to be issued
hereunder are or on issuance pursuant to the terms of this Agreement shall
be
duly authorized, validly issued, fully paid and non-assessable, are not subject
to preemptive rights created by statute, the Company’s charter documents or
bylaws or any agreement to which the Company is a party or by which it is bound,
and were offered and sold in compliance with applicable state and Federal
securities laws.
5.3(b) There
are no outstanding options,
warrants, subscriptions, calls, rights, demands, commitments, convertible
securities or other agreements or arrangements of any character or nature
whatsoever to which the Company is a party or by which it is bound obligating
the Company to issue, deliver or sell, or cause to be issued, sold or delivered,
additional shares of capital stock of the Company or obligating the Company
to
grant, extend or enter into any such option, warrant, subscription, call, right,
demand, commitment, convertible security or other agreement.
5.4 Equity
Investments. The Company
does not own any capital stock or have any interest in any corporation,
partnership, or other form of business entity.
5.5 Financial
Statements. The Company
has delivered to ASP copies of its audited balance sheet for the fiscal year
ended October 31, 2006 (the “Balance Sheet”) and the related audited statements
of operations, changes in stockholders’ equity and cash flows for the year ended
October 31, 2006 together with appropriate notes to such financial statements,
a
copy of which is included in the Registration Statement filed by the Company
with the SEC, and copies of its unaudited balance sheet as of July 31, 2007
and
the related unaudited statements of operations, changes in stockholders’ equity
and cash flows for the three and nine month period ended July 31, 2007 (the
“Company Financial Statements”), a copy of which is included in the Company’s
Quarterly Report on Form 10-QSB for the three month period ended July 31, 2007
filed by the Company with the SEC. The Company Financial Statements
have been prepared in accordance with generally accepted accounting principles
consistently applied, and present fairly the financial condition and results
of
operations of the Company at the dates and for the periods covered by the
Company Financial Statements.
5.6 Absence
of
Liabilities. As of the
date of the date of Closing, the Company does will not have any debts,
liabilities, or obligations of any nature, including, but not limited to
expenses and costs, stock transfer fees and accounting fees in connection with
the Transaction contemplated by this agreement and any agreements relating
to
the Company or its shares entered into contemporaneously or substantially
contemporaneously herewith.
5.7 Tax
Returns. Within
the times and in the manner prescribed by law, the Company has filed all
federal, state, and local tax returns required by law and has paid in full
all
taxes, including, without limitation, all net income, gross receipts, sales,
use, withholding, payroll, employment, social security, unemployment, excise
and
property taxes, plus applicable penalties and interest thereon (all such items
are collectively referred to as “Taxes”) due to, or claimed to be due by, any
governmental authority. The Balance Sheet fully accrues all current and deferred
Taxes. The Company has not been delinquent in the payment of any Taxes and
has
no tax deficiency or claim outstanding, proposed or assessed against it, and
there is no basis for any such deficiency or claim. As of the date of Closing,
the Company will not have any liability for Taxes which has not been paid or
noted in the Company Financial Statements.
5.8 Litigation.
There is no claim, action, suit,
proceeding or investigation, at law or in equity, pending or threatened against
the Company affecting any of its properties or assets or, to the knowledge
of
the Company, against any officer or director of the Company that might result,
either in any case or in the aggregate, in any material adverse change in the
business, operations, affairs or condition of the Company or any of its
properties or assets, or that might call into question the validity of this
Agreement, or any action taken or to be taken pursuant hereto, nor is there
any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against the Company having, or which, insofar as can be reasonably foreseen,
in
the future may have, any such effect.
5.9 Compliance
with Applicable Law. The
Company has complied with all applicable laws, regulations, orders and other
requirements of all governmental entities having jurisdiction over it and its
assets, properties and operations, except in any case where the failure to
comply would not have a material adverse effect on the business, assets or
financial condition of the Company. The Company has not received any notice
of
any material violation of any such law, regulation, order or other legal
requirement, and is not in material default with respect to any order, writ,
judgment, award, injunction or decree of any governmental entity, applicable
to
the Company or any of its assets, properties or operations.
5.10 Contracts
and Agreements. The
Company is not a party to or bound by nor are any of its properties and assets
subject to any contract, instrument, lease, license, agreement, guaranty,
commitment or undertaking.
5.11 Employees;
Employee
Plans. The Company is not a party to or bound by any employment,
consulting, or retainer agreement, or any profit-sharing, deferred compensation,
bonus, savings, stock option, stock purchase, or incentive plan or
agreement.
5.12 No
Conflict. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not conflict with or result
in
a breach of any term or provision of, constitute a default under or result
in a
violation of, the Articles of Incorporation or bylaws of the Company, as
amended, any agreement, contract, instrument, lease, license, agreement or
undertaking to which the Company is a party or by which it or any of its assets
are bound, or any judgment, decree, order or writ by which the Company is bound
or to which it or any of its assets or properties are subject.
5.13 Consent.
The Company is not required to submit
any notice, report, statement, or other filing with and no consent, approval,
order or authorization by any Person is required to be obtained by the Company
in connection with the execution and delivery of this Agreement, other than
(a)
such consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under applicable state securities law and (b)
such other consents, approvals, orders, authorizations, registrations,
declarations and filings which if not obtained or made would not have a material
adverse effect on the Company.
5.14 Stockholder
List. A complete and
accurate list of the stockholders of record of the Company will be delivered
to
ASP prior to the Closing.
5.15 Registration
Rights. No Person has
demand or other rights to cause the Company to file any registration statement
under the Securities Act of 1933 relating to any securities of the Company
or
any right to participate in any such registration statement.
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5.16
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Compliance
with
Securities Laws.
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5.16(a)
All reports required to be filed by the Company with the Securities and Exchange
Commission (collectively, the “Reports”) have been properly filed and comply in
all material respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder with respect to such Reports. None of the
filed Reports contain any untrue statement of a material fact, or fail to state
any material fact required to be stated therein or necessary to make the
statements made therein not misleading.
5.16(b)
No formal or informal investigation or examination by the Securities and
Exchange Commission or by the securities administrator of any state is pending
or threatened against the Company.
5.16(c)
The Company has not been convicted of any felony or misdemeanor in connection
with the purchase and sale of any security or involving the making of any false
filing with the Securities and Exchange Commission.
5.16(d)
The Company is not subject to any order, judgment or decree of any court of
competent jurisdiction, temporarily or preliminarily restraining or enjoining,
or subject to any order, judgment or decree of any court of competent
jurisdiction, permanently restraining or enjoining, the Company from engaging
in
or continuing any conduct or practice in connection with the purchase or sale
of
any security or involving the making of any false filing with the Securities
and
Exchange Commission.
5.16(e)
The Company does not have a class of securities registered under and is not
subject to Section 12(g) of the Securities Exchange Act of 1934.
5.17 Investment
Company. The Company is
not required to be registered as an investment company under the Investment
Company Act of 1940, as amended, and neither the Company nor its officers or
directors are required to be registered as investment advisors under the
Investment Advisor Act of 1940, as amended.
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6.
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COVENANTS
RELATING TO CONDUCT OF BUSINESS OF THE
COMPANY
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During
the period from the date of this Agreement and continuing until the Closing,
the
Company agrees (except as expressly contemplated by this Agreement or to the
extent that ASP shall otherwise consent in writing) that:
6.1 Ordinary
Course. The
Company shall not conduct any business or engage in any activities other than
activities related to the closing of the transactions contemplated by this
Agreement. In such connection, the company further represents and
warrants to ASP that since July 31, 2007,
(a) there
has not been any Material Adverse Change in the business, operations,
properties, assets, or condition of MNXU;
(b) MNXU
has not (i) amended its Articles of Incorporation; (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 outstanding capital stock; (iii) made any
material change in its method of management, operation, or accounting; (iv)
entered into any material transaction; or (v) made any accrual or arrangement
for payment of bonuses or special compensation of any kind or any severance
or
termination pay to any present or former officer or employee;
(c) MNXU
has
not (i) 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; (ii) paid any material
obligation or liability (absolute or contingent) other than current liabilities
reflected in or shown on the most recent MNXU balance sheet, and current
liabilities incurred since that date in the ordinary course of business; (iii)
sold or transferred, or agreed to sell or transfer, any material assets,
properties, or rights, or canceled, or agreed to cancel, any material debts
or
claims; or (iv) made or permitted any material amendment or termination of
any
contract, agreement, or license to which it is a party;
(d) Notwithstanding
anything to the contrary in the foregoing, MXNU shall have divested itself
of
all of its assets and have not liabilities on the date of the Closing and all
of
the business operations of MXNU as described in the MXNU prospectus shall have
been discontinued.
6.2 Dividends;
Changes in
Stock. The Company shall not and shall not propose to (i) declare or pay
any dividends on or make other distributions in respect of any of its capital
stock, (ii) split, combine or reclassify any of its capital stock or issue
or
authorize the issuance of any other securities in respect of, in lieu of or
in
substitution for shares of capital stock of the Company, or (iii) repurchase
or
otherwise acquire any shares of its capital stock or rights to acquire any
shares of its capital stock.
6.3 Issuance
of
Securities. The Company
shall not issue, deliver or sell or authorize or propose the issuance, delivery
or sale of, any shares of its capital stock of any class or securities
convertible into, or rights, warrants or options to acquire, any such shares
or
other convertible securities.
6.4 Governing
Documents. The Company
shall not amend its Articles of Incorporation or Bylaws.
6.5 No
Contracts or Undertakings.
The Company shall not become a party to or become bound by or agree to become
a
party to or become bound by any contract, instrument, lease, license, agreement,
commitment or undertaking.
6.6 No
Obligations or Liabilities. The Company shall
not incur or agree
to incur any amount of long or short-term debt for money borrowed, or indemnify
or agree to indemnify others, or incur or agree to incur any debts, obligations
or liabilities whatsoever.
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7.
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ADDITIONAL
AGREEMENTS
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| 7.1 | Access to Information. |
(a) ASP
shall afford to the Company and
shall cause its independent accountants to afford to the Company, and its
accountants, counsel and other representatives, reasonable access during normal
business hours during the period prior to the Closing to all information
concerning the Gansu Dasheng and the Gansu Dasheng Shares, as the Company may
reasonably request, provided that ASP shall not be required to disclose any
information which he is legally required to keep confidential. The Company
will
not use such information for purposes other than this Agreement and will
otherwise hold such information in confidence (and the Company will cause its
consultants and advisors also to hold such information in confidence) until
such
time as such information otherwise becomes publicly available, and in the event
of termination of this Agreement for any reason the Company shall promptly
return, or cause to be returned, to the disclosing party all documents obtained
from ASP, and any copies made of such documents, extracts and copies
thereof.
(b) The
Company shall afford to ASP and
shall cause its independent accountants to afford to ASP and his accountants,
counsel and other representatives, reasonable access during normal business
hours during the period prior to the Closing to all of the Company's properties,
books, contracts, commitments and records and to the audit work papers and
other
records of the Company's independent accountants. During such period, the
Company shall use reasonable efforts to furnish promptly to ASP such information
concerning the Company as ASP may reasonably request, provided that the Company
shall not be required to disclose any information that it is legally required
to
keep confidential. ASP will not use such information for purposes other than
this Agreement and will otherwise hold such information in confidence (and
ASP
will cause his consultants and advisors also to hold such information in
confidence) until such time as such information otherwise becomes publicly
available, and in the event of termination of this Agreement for any reason
ASP
shall promptly return, or cause to be returned, to the disclosing party all
documents obtained from the Company, and any copies made of such documents,
extracts and copies thereof.
7.2 Communications.
Between the date hereof and the Closing Date, the Company will not, without
the
prior written approval of ASP, furnish any communication to the public if the
subject matter thereof relates to the other party or to the transactions
contemplated by this Agreement, except as may be necessary, in the opinion
of
their respective counsel, to comply with the requirements of any law,
governmental order or regulation.
7.3 No
Shop. From the
date of this Agreement until the earlier of (i) the Closing Date, or (ii) the
termination of this Agreement; neither Company nor ASP shall cause their
respective shareholders, officers, directors, employees and other agents to
directly or indirectly, take any action to solicit, initiate or encourage any
offer or proposal or indication of interest in a merger, consolidation or other
business combination involving any equity interest in, or a substantial portion
of the assets of itself, other than in connection with the transactions
contemplated by this Agreement. Each of the parties hereto shall immediately
advise the other party of the terms of any offer, proposal or indication of
interest that it receives or otherwise becomes aware of.
7.4 Public
Announcements. The Company
and ASP shall consult with each other before issuing any press release or making
any public statement with respect to this Agreement or the transactions
contemplated hereby and will not issue any such press release or make any such
public statement prior to such consultation and without the written consent
of
the other party.
7.5 Notices
of
Certain Events. In
addition to any other notice required to be given by the terms of this
Agreement, each of the parties shall promptly notify the other party hereto
of:
(a) any
notice or other communication from
any person or entity alleging that the consent of such person or entity is
or
may be required in connection with any of the transactions contemplated by
this
Agreement;
(b) any
notice or other communication from
any governmental or regulatory agency or authority in connection with the
transactions contemplated by this Agreement; and
(c) any
actions, suits, claims,
investigations or proceedings commenced or, to its knowledge threatened against,
relating to or involving or otherwise affecting such party that, if pending
on
the date of this Agreement, would have been required to have been disclosed
pursuant to Sections 3,4 and 5 (as the case may be) or that relate to the
consummation of the transactions contemplated by this
Agreement
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8.
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CONDITIONS
PRECEDENT
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8.1 Conditions
to Obligations of the Company. The obligations of
the Company to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction on or before the date of Closing of the following conditions,
unless waived by the Company:
(a) Representations
and Warranties of ASP. The
representations and warranties of ASP and set forth herein shall be true and
correct in all material respects as of the date of this Agreement and on the
date of the Closing.
(b) Additional
Closing Documents. The
Company shall have received such other documents and instruments as are required
to be delivered pursuant to the provisions of this Agreement or otherwise
reasonably requested by the Company.
8.2 Conditions
to Obligations of
ASP. The obligations of ASP to consummate the transactions contemplated
by this Agreement are subject to the satisfaction on or before the date of
Closing of the following conditions unless waived by ASP:
(a) Representations
and Warranties of the Company. The representations
and warranties of
the Company set forth herein shall be true and correct in all material respects
as of the date of this Agreement and on the date of Closing, and ASP and shall
have received a certificate signed by an executive officer of the Company to
such effect.
(b) Election
of
Directors and Officers. Qi
Jinjun shall have been elected to the Board of Directors of the Company as
well
as its CEO and all of the Company’s officers and directors shall have
resigned.
(c) Additional
Closing
Documents. ASP shall have received the following documents and
instruments: (1) Certified resolutions of the Company's
Board of Directors (a) authorizing the execution and delivery of this Agreement
and the performance by the Company of its obligations hereunder, (b) electing
persons designated by ASP as the officers and directors of the Company effective
as of the date of Closing; (2) a current list of the Company's stockholders
certified by the Company's stock transfer agent; (3) an indemnification
agreement, in form and substance reasonably acceptable to ASP and its counsel
wherein the Control Shareholder agrees to indemnify, defend and hold harmless
each of ASP, the persons designated by ASP to receive shares of the Company’s
common stock hereunder and the Company and any subsidiary or
affiliate thereof and each person who is now, or has been at any time prior
to
the date hereof or who becomes prior to the Closing, a shareholder, officer,
director or partner of ASP, any subsidiary or affiliate thereof or an employee
of ASP, any subsidiary or affiliate thereof and their respective heirs, legal
representatives, successors and assigns (the “Dasheng Indemnified Parties”)
against all losses, claims, damages, costs, expenses (including reasonable
attorneys’ fees), liabilities or judgments or amounts that are paid in
settlement of or in connection with any threatened or actual third party claim,
action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of (i) any material breach of this Agreement
by
the Company or any subsidiary or affiliate thereof, including but not limited
to
inaccuracy or breach of any representation or warranty to be true and correct
at
or before the Closing, or (ii) any willful or grossly negligent act, omission
or
conduct of any officer, director or agent of the Company or any subsidiary
or
affiliate thereof prior to the Closing, whether asserted or claimed prior to,
at
or after, the Closing and (4) such other documents and instruments as are
required to be delivered pursuant to the provisions of this Agreement or
otherwise reasonably requested by ASP.
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9.
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SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
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The
representations and warranties contained herein shall survive the Closing,
but
shall expire on the first anniversary date following the date of Closing, unless
a specific claim in writing with respect to these matters shall have been made,
or any action at law or in equity shall have been commenced or filed before
such
anniversary date. Any investigations made by or on behalf of any of the parties
prior to the date of Closing shall not affect any of the parties’ obligations
hereunder. Completion of the transactions contemplated herein shall not be
deemed or construed to be a waiver of any right or remedy of any of the
parties.
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10.
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TERMINATION
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10.1 Termination.
This
Agreement may be terminated at any time prior to the Closing Date:
(a) by
mutual written consent of the Company, the Controlling Stockholders and
ASP;
(b) by
the Company or the Controlling Stockholders if there has been a material breach
of any representation, warranty, covenant or agreement contained in this
Agreement by ASP; or
(c) by
ASP if there has been a material breach of any representation, warranty,
covenant or agreement contained in this Agreement by the Company or the
Controlling Stockholder.
10.2 Effect
of
Termination. Termination of this Agreement in accordance with Section
11.1 may be effected by written notice from either the Company or ASP, as
appropriate, specifying the reasons for termination and shall not subject the
terminating party to any liability for any valid termination.
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11.
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MISCELLANEOUS
|
11.1 Further
Assurances.
From time to time, at the other party's request and without further
consideration, each of the parties will execute and deliver to the others such
documents and take such action as the other party may reasonably request in
order to consummate more effectively the transactions contemplated
hereby.
11.2 Payment
of Fees and
Expenses. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
that
action or proceeding, in addition to any other relief to which it or they may
be
entitled.
11.3 Parties
in
Interest. Except as
otherwise expressly provided herein, all the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective heirs, beneficiaries, personal and legal
representatives, successors and assigns of the parties
hereto.
11.4 Entire
Agreement; Amendments.
This Agreement, including the Schedules, Exhibits and other documents and
writings referred to herein or delivered pursuant hereto, which form a part
hereof, contains the entire understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may
be
amended only by a written instrument duly executed by the parties or their
respective successors or assigns.
11.5 Headings.
The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
11.6 Pronouns.
All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person, persons,
entity or entities may require.
11.7 Counterparts.
This Agreement may be executed in
several counterparts, each of which shall be deemed an original but all of
which
together shall constitute one and the same instrument.
11.8 Governing
Law. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York as they are applied to contracts executed, delivered and to be performed
entirely within such state.
11.9 Person.
For purposes of this Agreement, the
term “Person” shall mean any individual, corporation, partnership, joint venture
or other business enterprise or entity and any governmental agency, federal,
state or local.
11.10 Notices.
Any and all notices, demands or other
communications required or desired to be given hereunder by any party shall
be
in writing and shall be validly given or made to another party if given by
personal delivery, telex, facsimile, telegram or if deposited in the United
States mail, certified or registered, postage prepaid, return receipt requested.
If such notice, demand or other communication is given by personal delivery,
telex, facsimile or telegram, service shall be conclusively deemed made at
the
time of receipt. If such notice, demand or other communication is given by
mail,
such notice shall be conclusively deemed given forty-eight (48) hours after
the
deposit thereof in the United States mail addressed to the party to whom such
notice, demand or other communication is to be given as hereinafter set
forth:
|
If
to ASP:
|
At
the address set forth below his name on the signature page of this
Agreement.
|
|
|
If
to the Company:
|
At
the address set forth below its name on the signature page of this
Agreement.
|
|
|
|
|
|
Copy
to:
|
|
|
Xxxx
X. Xxxxx, P.C.
|
|
|
000
Xxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
If
to the Controlling Stockholders:
|
At
the address set forth below their name on the signature page of this
Agreement.
|
|
|
|
|
Copy
to:
|
Xxxxx
X Xxxxxxx, Esq.
|
|
| 0000 Xxxxx Xxxxx Xxxx | ||
| Xxxxx Xxxxxx, XX 00000 |
|
11.11
|
Payment
of
Expenses.
|
The
Company and ASP shall each bear their own fees and expenses (including legal
fees) incurred incident to the preparation and carrying out of the transactions
contemplated herein.
|
12.
|
APPOINTMENT
OF AGENT
|
The
Company and the Controlling Stockholder hereby irrevocably constitute and
appoint Xxxx X Xxxxx, P.C. as their true and lawful attorney (the “Agent”) with
full right and power in their names and stead to take any and all action by
and
on behalf of them necessary or desirable to consummate the transactions
contemplated by this Agreement, including without limitation, the right and
power to receive and distribute the Purchase Price upon their written
instruction.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
parties hereto as of the date first above written.
| Max Nutrition, Inc. | |
|
a
Nevada corporation
|
|
|
By: /s/
Xxxxxxxx
Xxxxx
|
|
| Name: Xxxxxxxx Xxxxx, President | |
| Adress: 0000 Xxxxx Xxxxxx Xxxx. | |
| Xxxx Xxxxxxxxx, XX 00000 | |
| American Springs Pharmaceuticals, Inc. |
|
a Delaware
corporation
|
|
|
By: /s/
Xxxxxxx
Xxxx
|
|
| Name: Xxxxxxx Xxxx, President |
| Address: 00 Xxxxxxxx Xxxxx | |
| Xxxx Xxxxxxx, XX 00000 |
