SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement ("Agreement") between Wickliffe International
Corporation, a Nevada corporation ("WICK"); Xxxxxxx X. XxxXxxxxx (the
"Shareholders Representative"), as representative of the persons listed in the
persons listed in EXHIBIT A hereof (the "Werke Shareholders"), being the owners
of record of all of the issued and outstanding stock of Werke Pharmaceuticals,
Inc., a Delaware corporation ("WERKE"); and Shenyang Tianwei Pharmaceutical
Factory, a Chinese corporation ("STPF"), is entered into as of June 20, 2002.
RECITALS
A. WERKE and STPF are currently the joint owners of Shenyang Tainwei
Werke Pharmaceutical Co., Ltd. ("STWP"), a Sino-foreign equity joint venture
company formed in 2001 to finance and expand an existing northern China-based
pharmaceutical manufacturing and sales company.
B. Currently, through the equity joint venture structure, 55% of
STWP is owned by STPF and 45% is owned by WERKE.
C. STPF has the right to convert its interest in STWP into equity in
WERKE so that WERKE will own a 100% interest in STWP.
D. STPF ntends to exercise its right to convert its interest in STWP
into equity in WERKE in order to facilitate the transactions contemplated by
this Agreement. Following such conversion, STPF and/or its principals will be
Shareholders of WERKE.
E. The Shareholders have authorized the Shareholders Representative,
pursuant to the Agreement to Appoint Shareholders Representative annexed hereto
as EXHIBIT B to sell to WICK, and WICK has agreed to purchase from the Werke
Shareholders 100% of the common stock of WERKE (the "WERKE Stock") in exchange
for shares of the outstanding common shares of WICK (the "WICK Stock"), pursuant
to the terms and conditions set forth in this Agreement.
F. WERKE will become a wholly owned subsidiary of WICK.
NOW THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
1. Exchange of Stock.
-----------------
(a) The Werke Shareholders agree to transfer to WICK, and WICK
agrees to purchase from the Werke Shareholders, all of the
Werke Shareholders' right, title and interest in the WERKE
Stock, representing 100% of the issued and outstanding stock
of WERKE, free and clear of all mortgages, liens, pledges,
security interests, restrictions, encumbrances, or adverse
claims of any nature.
1
(b) At the Closing (as defined in Section 2 below), upon surrender
by the Werke Shareholders of the certificates evidencing the
WERKE Stock, duly endorsed for transfer to WICK or accompanied
by stock powers executed in blank by the Werke Shareholders,
WICK will cause 11,000,000 shares (subject to adjustment for
fractionalized shares as set forth below) of the common voting
stock, par value $.001 of WICK (the "WICK Stock") to be issued
to the Werke Shareholders (or their designees), in full
satisfaction of any right or interest which each Shareholder
held in the WERKE Stock. The WICK Stock will be issued to the
Werke Shareholders on a pro rata basis, in the same proportion
as the percentage of their ownership interest in WERKE, as set
forth on EXHIBIT A (subject to adjustment as set forth below),
at the Closing. As a result of the exchange of the WERKE Stock
for the WICK Stock, WERKE will become a wholly owned
subsidiary of WICK.
(c) EXHIBIT A, may be amended by WERKE at or prior to the Closing
in order to give effect to the conversion by STPF of its
interest in STWP into equity in WERKE and to reflect other
changes in the capital structure of WERKE which may be caused
by investment into WERKE by third parties prior to the
Closing. Any additional shareholders which are added to
EXHIBIT A, at or prior to Closing will agree to be bound by
the terms of this Agreement, either directly or by signing the
Agreement to Appoint Shareholders Representative attached
hereto as EXHIBIT B, however, their failure to do so prior to
Closing will not effect the validity or enforceability of this
Agreement as between the present parties. In no event shall
WICK be required to issue any additional securities, other
than as set forth herein, as a result of any changes in the
capital structure of WERKE at or prior to the Closing.
2. Closing.
-------
(a) The parties to this Agreement will hold a closing (the
"Closing") for the purpose of executing and exchanging all of
the documents contemplated by this Agreement and otherwise
effecting the transactions contemplated by this Agreement. The
Closing will be held as soon as possible and it is currently
anticipated that it will occur within one week following the
completion of the Audit of WERKE and STWP, at the offices of
the Company's agent in Rockville, Maryland, unless another
place or time is mutually agreed upon in writing by the
parties. All proceedings to be taken and all documents to be
executed and exchanged at the Closing will be deemed to have
been taken, delivered and executed simultaneously, and no
proceeding will be deemed taken nor documents deemed executed
or delivered until all have been taken, delivered and
executed. If agreed to by the parties, the Closing may take
place through the exchange of documents by fax and/or express
courier.
(b) With the exception of any stock certificates which must be in
2
their original form, any copy, fax, e-mail or other reliable
reproduction of the writing or transmission required by this
Agreement or any signature required thereon may be used in
lieu of an original writing or transmission or signature for
any and all purposes for which the original could be used,
provided that such copy, fax, e-mail or other reproduction is
a complete reproduction of the entire original writing or
transmission or original signature, and the originals are
promptly delivered thereafter.
3. Representations and Warranties of WICK.
--------------------------------------
WICK represents and warrants as follows:
(a) WICK is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Nevada and is
licensed or qualified as a foreign corporation in all states
in which the nature of its business or the character or
ownership of its properties makes such licensing or
qualification necessary.
(b) The authorized capital stock of WICK consists of (i)
25,000,000 shares of common stock, $0.001 par value per share,
of which, 1,669,180 shares are issued and outstanding as of
June 15, 2002; and (ii) no preferred stock. To the knowledge
of WICK, all issued and outstanding shares of WICK's common
stock are fully paid and nonassessable.
(c) Other than as set forth on SCHEDULE 3(C) attached hereto,
there are no subscription rights, options, warrants,
convertible securities, or other rights (contingent or
otherwise) presently outstanding, for the purchase,
acquisition, or sale of the capital stock of WICK, or any
securities convertible into or exchangeable for capital stock
of WICK or other securities of WICK, from or by WICK. There
are no outstanding obligations of WICK to repurchase, redeem
or otherwise acquire any of its shares and there will be none
of the foregoing outstanding at the Closing.
(d) WICK has no subsidiaries.
(e) Execution of this Agreement and performance by WICK hereunder
has been duly authorized by all requisite corporate action on
the part of WICK, and this Agreement constitutes a valid and
binding obligation of WICK, and WICK's performance hereunder
will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order,
judgment, decree, or, to WICK's knowledge any law or
regulation, to which any property of WICK is subject or by
which WICK is bound.
(f) Other than as set forth on SCHEDULE 3(F) attached hereto, WICK
has no assets or liabilities and the same will be represented
in audited financial statements of WICK for the fiscal year
ended June 30, 2001, and the unaudited financial statements
3
for any interim period which may be prepared prior to closing.
(g) There is no litigation or proceeding pending or to the
Company's knowledge threatened against or relating to WICK,
its properties or business.
(h) WICK is not a party to any material contract. For purposes of
this Agreement "material" shall mean any contract, debt,
liability, claim or other obligation valued or otherwise worth
$2,000 or more.
(i) Other than Xxxxxxx Xxxxx, XXXX has no officers, directors or
employees.
(j) No current officer, director, affiliate or person known to
WICK to be the record or beneficial owner of in excess of 5%
of WICK's common stock, or any person known to be an associate
of any of the foregoing is a party adverse to WICK or has a
material interest adverse to WICK in any material pending
legal proceeding.
(k) WICK has filed in correct form all federal, state, and other
tax returns of every nature required to be filed by it and has
paid all taxes and all assessments, fees and charges which it
is obligated to pay by federal, state or other taxing
authority to the extent that such taxes, assessments, fees and
charges have become due. WICK has also paid all taxes which do
not require the filing of returns and which are required to be
paid by it. To the extent that tax liabilities have accrued,
but have not become payable, they have been adequately
reflected as liabilities on the books of WICK.
(l) WICK is a publicly reporting company pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Act")
and is in compliance with all reporting requirements of the
Act. WICK's Form 10-KSB for the period ending December 31,
2000, its Form 10-QSB for the period ending June 30, 2001, its
Form 10-QSB for the period ending September 30, 2001, its Form
10-QSB for the period ending December 31, 2001, its 10-QSB for
the period ending March 31, 2001, and any other periodic
filings made by WICK as filed with the SEC, including all
exhibits, documents and attachments thereto, are true and
correct in all material respects and do not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make any
statement therein not materially misleading.
(m) WICK's common stock currently trades on the over-the-counter
market bulletin board marker commonly referred to as the
"OTCBB." WICK is not aware of any fact or circumstance that
would jeopardize or otherwise impair the ability of WICK's
common stock to continue trading on the OTCBB.
(n) WICK has had the opportunity to perform all due diligence
investigations of WERKE, STPF and STWP and their respective
businesses as it has deemed necessary or appropriate and to
4
ask questions of the officers and directors of WERKE, STPF and
STWP and has received satisfactory answers to all of its
questions. WICK has had access to all documents and
information about WERKE, STPF and STWP and has reviewed
sufficient information to allow them to evaluate the merits
and risks of the transactions contemplated by this Agreement.
(o) WICK is acquiring the WERKE shares to be transferred to it
under this Agreement for investment and not with a view to the
sale or distribution thereof.
4. Representations and Warranties of the Werke Shareholders.
--------------------------------------------------------
The Werke Shareholders, jointly and severally, represent and warrant as
follows:
(a) WERKE is a corporation duly organized, validly existing, and
in good standing under the laws of Delaware and is licensed or
qualified as a foreign corporation in all places in which the
nature of its business or the character or ownership of its
properties makes such licensing or qualification necessary.
(b) There are no agreements purporting to restrict the transfer of
the WERKE Shares, nor any voting agreements, voting trusts or
other arrangements restricting or affecting the voting of the
WERKE Shares. The WERKE Shares held by the Werke Shareholders
are duly and validly issued, fully paid and non-assessable,
and issued in full compliance with all federal, state, and
local laws, rules and regulations. Other than as described
herein, there are no subscription rights, options, warrants,
convertible securities, or other rights (contingent or
otherwise) presently outstanding, for the purchase,
acquisition, or sale of the capital stock of WERKE, or any
securities convertible into or exchangeable for capital stock
of WERKE or other securities of WERKE, from or by WERKE.
5
(c) The Werke Shareholders have full right, power and authority to
sell, transfer and deliver the WERKE Shares, and upon delivery
of the certificates therefor as contemplated in this
Agreement, the Werke Shareholders will transfer to WICK valid
and marketable title to the WERKE Shares, including all voting
and other rights to the WERKE Shares free and clear of all
pledges, liens, security interests, adverse claims, options,
rights of any third party, or other encumbrances. Each of the
Werke Shareholders, subject to adjustment at or prior to
Closing as set forth in paragraph 1(c), owns and holds that
the number or percentage of WERKE Shares that are listed
opposite their names on EXHIBIT A attached hereto.
(d) There is no litigation or proceeding pending, or to any Werke
Shareholder's knowledge, threatened, against or relating to
WERKE or to the WERKE Shares.
(e) WERKE has filed in correct form all tax returns of every
nature required to be filed by it in its home jurisdiction or
otherwise and has paid all taxes as shown on such returns and
all assessments, fees and charges received by it to the extent
that such taxes, assessments, fees and charges have become
due. WERKE has also paid all taxes which do not require the
filing of returns and which are required to be paid by it. To
the extent that tax liabilities have accrued, but have not
become payable, they have been adequately reflected as
liabilities on the books of WERKE.
(f) The financial statements that have been provided to WICK have
been prepared consistent with Generally Accepted Accounting
Principles ("GAAP") as recognized by the Peoples Republic of
China and other than those adjustments necessitated by
conversion from Chinese GAAP to U.S. GAAP in order to
consolidate such financial statements with the financial
statements of WERKE prior to Closing, will not deviate
substantially upon such consolidation.
(g) The current residence address or principal place of business
(for any non-individual shareholder) of the Werke Shareholders
is as listed on EXHIBIT A attached hereto.
(h) The Werke Shareholders have had the opportunity to perform all
due diligence investigations of WICK and its business as they
have deemed necessary or appropriate and to ask questions of
WICK's officers and directors and have received satisfactory
answers to all of their questions. The Werke Shareholders have
had access to all documents and information about WICK and
have reviewed sufficient information to allow them to evaluate
the merits and risks of the acquisition of the WICK Stock.
(i) The Werke Shareholders are acquiring the WICK Stock for their
own account (and not for the account of others) for investment
and not with a view to the distribution therefor. The Werke
Shareholders will not sell or otherwise dispose of the WICK
Stock without registration under the Securities Act of 1933,
6
as amended, or an exemption therefrom, and the certificate or
certificates representing the WICK Stock will contain a legend
to the foregoing effect.
5. Conduct Prior to the Closing.
----------------------------
WICK and the Werke Shareholders covenant that between the date of this
Agreement and the Closing as to each of them:
(a) Other than as contemplated herein, no change will be made in
the charter documents, by-laws, or other corporate documents
of WICK or WERKE.
(b) WICK and WERKE will each use its best efforts to maintain and
preserve its business organization, employee relationships,
and goodwill intact, and will not enter into any material
commitment except in the ordinary course of business.
(c) None of the Werke Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the WERKE
Shares owned by them.
(d) WERKE and STPF will use their best efforts to maintain and
preserve the business organization, employee relationships and
goodwill intact of STWP, and will not allow STWP to enter into
any material commitment except in the ordinary course of
business.
(e) Other than as contemplated herein, WERKE and STPF will not
sell, transfer, assign, hypothecate, lien, or otherwise
dispose, encumber or dilute their interest in STWP.
(f) STPF will convert its interest in STWP into equity in WERKE so
that at Closing WERKE will own a 100% interest in STWP.
6. Conditions to Obligations of the Werke Shareholders and STPF.
------------------------------------------------------------
The Werke Shareholders and STPF's obligations to complete the transactions
contemplated herein are subject to fulfillment on or before the Closing of each
of the following conditions, unless waived in writing by the Werke Shareholders
or STPF, as appropriate:
(a) The representations and warranties of WICK set forth herein
will be true and correct at the Closing as though made at and
as of that date, except as affected by the transactions
contemplated hereby.
(b) WICK will have performed all covenants required by this
Agreement to be performed by it on or before the Closing.
7
(c) This Agreement will have been approved by the Board of
Directors of WICK.
(d) WICK will have delivered to the Werke Shareholders and STPF
the documents set forth below in form and substance reasonably
satisfactory to counsel for the Shareholders, to the effect
that:
(i) WICK is a corporation duly organized, validly
existing, and in good standing;
(ii) WICK's authorized capital stock is as set forth
herein;
(iii) Certified copies of the resolutions of the board of
directors of WICK authorizing the execution of this
Agreement and the consummation hereof; and
(iv) Any further document as may be reasonably requested
by counsel to the Shareholders and STPF in order to
substantiate any of the representations or warranties
of WICK set forth herein.
(e) There will have occurred no material adverse change in the
business, operations or prospects of WICK.
(f) WICK shall have prepared audited financial statements for the
period ending June 30, 2002. Such financial statements shall
be prepared in accordance with US GAAP and shall present
fairly the financial condition of the Company for that period.
(g) WICK will have received written consent (in a form acceptable
to counsel for the Shareholders and WERKE) from the
Shareholders listed on Schedule 6(g) attached hereto agreeing
to cancel back to WICK at or prior to Closing those shares
listed opposite their names on Schedule 6(g).
(h) WERKE and STPF will have received approval from the Chinese
Securities and Regulatory Commission and any other necessary
Chinese governmental approvals of the transactions
contemplated by this Agreement.
7. Conditions to Obligations of WICK.
---------------------------------
WICK's obligation to complete the transaction contemplated herein will be
subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by the WICK, as appropriate:
(a) The representations and warranties of the Werke Shareholders
set forth herein will be true and correct at the Closing as
though made at and as of that date, except as affected by the
8
transactions contemplated hereby.
(b) The Werke Shareholders and STPF will have performed all
covenants required by this Agreement to be performed by them
on or before the Closing.
(c) The Werke Shareholders will have delivered to WICK the
documents set forth below in form and substance reasonably
satisfactory to counsel for WICK, to the effect that:
(i) WERKE is a corporation duly organized, validly
existing, and in good standing;
(ii) WERKE's authorized capital stock is owned as set
forth herein and in EXHIIBIT A, subject to adjustment
as set forth in paragraph 1(c); and
(iii) Any further document as may be reasonably requested
by counsel to the WICK in order to substantiate any
of the representations or warranties of the Werke
Shareholders or STPF set forth herein.
(d) There will have occurred no material adverse change in the
business, operations or prospects of WERKE, STPF or STWP.
8. Additional Covenants.
--------------------
(a) Between the date of this Agreement and the Closing, the Werke
Shareholders, with respect to WERKE, STPF with respect to
itself and WICK, with respect to itself, will, and will cause
their respective representatives to, (i) afford the other
parties and their representatives access to their personnel,
properties, contracts, books and records, and other documents
and data, as reasonably requested by the other party; (ii)
furnish the other parties and their representatives with
copies of all such contracts, books and records, and other
existing documents and data as they may reasonably request in
connection with the transaction contemplated by this
Agreement; and (iii) furnish the other parties and their
representatives with such additional financial, operating, and
other data and information as they may reasonably request. The
Werke Shareholders will cause WERKE to and STPF and WICK will
provide each other, with complete copies of all material
contracts and other relevant information on a timely basis in
order to keep the other parties fully informed of the status
of their respective business and operations.
(b) WICK will deliver WICK's corporate books and records,
including all records relating to WICK's audited financial
statements, to the Shareholders at Closing.
(c) The parties agree that they will not make, and the Werke
Shareholders will not permit WERKE to make, any public
9
announcements relating to this Agreement or the transactions
contemplated herein without the prior written consent of the
other parties, except as may be required upon the written
advice of counsel to comply with applicable laws or regulatory
requirements after consulting with the other parties hereto
and seeking their consent to such announcement.
(d) WICK, STPF and the Werke Shareholders will cooperate with each
other in the preparation of a Form 10KSB for the period ending
June 30, 2002 and Form 8-K to be filed with the SEC describing
the transaction contemplated by this Agreement and such other
items as are required by the SEC rules and regulations.
(e) Each of the WICK officers and directors will deliver a written
statement to WICK resigning from all officer and director
positions held by them at WICK.
9. Termination.
-----------
This Agreement may be terminated (1) by mutual consent in writing; or
(2) by either the Shareholders or WICK if there has been a material
misrepresentation or material breach of any warranty or covenant by any other
party that is not cured by August 30, 2002 or such later date as agreed by the
parties.
10. Expenses.
--------
Whether or not the Closing is consummated, each of the parties will pay
all of his, her, or its own legal and accounting fees and other expenses
incurred in the preparation of this Agreement and the performance of the terms
and provisions of this Agreement.
11. Survival of Representations and Warranties.
------------------------------------------
The representations and warranties of the Shareholders and Wick set out
in this Agreement will survive Closing for a period twelve months.
12. Waiver.
------
Any failure on the part of the parties hereto to comply with any of
their obligations, agreements, or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
13. Brokers.
-------
Each party agrees to indemnify and hold harmless the other parties
10
against any fee, loss, or expense arising out of claims by brokers or finders
employed or alleged to have been employed by the indemnifying party.
14. Notices.
-------
All notices and other communications under this Agreement must be in
writing and will be deemed to have been given if delivered in person or sent by
prepaid first-class certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to WICK, to:
000-X Xxxx Xxxx #000
Xxxxxxxx, Xxxxx 00000
If to the Shareholders, Werke or STPF, to:
0000 Xxxxxxx Xxxxxx
Xxxxx xxx Xxx, Xxxxxxxxxx 00000
15. General Provisions.
------------------
(a) This Agreement will be governed by and under the laws of the
State of Delaware, USA without giving effect to conflicts of
law principles. If any provision hereof is found invalid or
unenforceable, that part will be amended to achieve as nearly
as possible the same effect as the original provision and the
remainder of this Agreement will remain in full force and
effect.
(b) The original of this agreement (the "Original") is drafted in
the English language. The Parties hereto acknowledge that they
may make copies of and translations of this agreement into
other languages, however, any disputes regarding the terms and
conditions of this agreement shall be resolved according to
the terms of the Original. The parties have participated
jointly, through the use of the English language, in the
negotiation and drafting of this agreement. In the event an
ambiguity or question of intent or interpretation arises, this
agreement shall be construed as if drafted jointly by the
parties in the English language and no presumption or burden
of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
(c) Any dispute arising under or in any way related to this
Agreement will be submitted to binding arbitration before a
single arbitrator by the American Arbitration Association in
accordance with the Association's commercial rules then in
11
effect. The arbitration will be conducted in the State of
Maryland. The decision of the arbitrator will set forth in
reasonable detail the basis for the decision and will be
binding on the parties. The arbitration award may be confirmed
by any court of competent jurisdiction.
(d) In any adverse action, the parties will restrict themselves to
claims for compensatory damages and/or securities issued or to
be issued and no claims will be made by any party or affiliate
for lost profits, punitive or multiple damages.
(e) This Agreement constitutes the entire agreement and final
understanding of the parties with respect to the subject
matter hereof and supersedes and terminates all prior and/or
contemporaneous understandings and/or discussions between the
parties, whether written or verbal, express or implied,
relating in any way to the subject matter hereof. This
agreement may not be altered, amended, modified or otherwise
changed in any way except by a written agreement, signed by
both parties.
(f) This Agreement will inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns;
provided, however, that any assignment by either party of its
rights under this Agreement without the written consent of the
other party will be void.
(g) The parties agree to take any further actions and to execute
any further documents which may from time to time be necessary
or appropriate to carry out the purposes of this Agreement.
(h) The headings of the Sections, paragraphs and subparagraphs of
this Agreement are solely for convenience of reference and
will not limit or otherwise affect the meaning of any of the
terms or provisions of this Agreement. The references in this
Agreement to Sections, unless otherwise indicated, are
references to sections of this Agreement.
(i) This Agreement may be executed in counterparts, each one of
which will constitute an original and all of which taken
together will constitute one document. This Agreement may be
executed by delivery of a signed signature page by fax to the
other parties hereto and such fax execution and delivery will
be valid in all respects.
SIGNATURE PAGE FOLLOWS
12
EXECUTED:
WICKLIFFE INTERNATIONAL CORPORATION
By:
-------------------------
SHENYANG TIANWEI PHARMACEUTICAL FACTORY
By: /s/ Xxxxxxx X. XxxXxxxxx
--------------------
Xxxxxxx X. XxxXxxxxx
THE SHAREHOLDERS REPRESENTATIVE OF WERKE:
By: /s/ Xxxxxxx X. XxxXxxxxx
--------------------
Xxxxxxx X. XxxXxxxxx
13
EXHIBIT A
----------
TO
SHARE EXCHANGE AGREEMENT
--------------------------------------- ----------------------------- --------------------------
Number of WICK Shares to
% of Ownership be issued to
Shareholder of WERKE Shares Shareholder or designees
----------- --------------- ------------------------
--------------------------------------- ----------------------------- --------------------------
77.27
Xx. Xxxx Xxx Xxx 8,500,000
--------------------------------------- ----------------------------- --------------------------
4.31 475,000
Xxxxxxx XxxXxxxxx
--------------------------------------- ----------------------------- --------------------------
1.81 200,000
The XxxXxxxxx Group, Inc. 7.04 775,000
Xxxxx Xxxxxx 5.00 550,000
That Ngo Ph.D. 4.54 500,000
TriPoint Capital Advisors, LLC
--------------------------------------- ----------------------------- --------------------------
14
SCHEDULE 3(C)
TO
SHARE EXCHANGE AGREEMENT
SUBSCRIPTION RIGHTS, OPTIONS AND WARRANTS
-----------------------------------------
NONE
15
SCHEDULE 3(F)
TO
SHARE EXCHANGE AGREEMENT
ASSETS AND LIABILITIES
----------------------
$0.00 Assets
$2500.00 Liabilities to be paid by Xxxxxxx Xxxxx
16
SCHEDULE 6(G)
TO
SHARE EXCHANGE AGREEMENT
SHAREHOLDERS CANCELING BACK SHARES TO WICK
------------------------------------------
Xxxxxxxxx Consulting Inc. 567,500 Shares to be canceled**
** Remaining balance will be 432,500 of which 250,000 to be reissued to
Woodbridge Management, LTD, 157,500 to Xxxxxxx Xxxxx and 25,000 will be re
issued to Xxxxxx Xxxxx.
17
EXHIBIT B
---------
TO
SHARE EXCHANGE AGREEMENT
AGREEMENT TO APPOINT SHAREHOLDERS REPRESENTATIVE
AGREEMENT made this 15th day of June 2002, by and between the owners of record
(the "Shareholders") of all of the issued and outstanding stock of Werke
Pharmaceuticals, Inc., a Delaware corporation ("WERKE") and Xxxxxxx X. XxxXxxxxx
(the "Shareholders Representative").
RECITALS
A. The Shareholders currently own 2,500,000 shares of WERKE common
stock (the "Werke Stock") and constitute all the shareholders of
WERKE (the "Company");
B. The Shareholders wish to enter into a Share Exchange Agreement (the
"Share Exchange Agreement") with Wickliffe International
Corporation ("WICK"), pursuant to which WICK will purchase all of
the issued and outstanding shares of the Company's common stock
from the Shareholders in exchange for 11,000,000 shares of WICK
common shares.
C. It is the desire of the Shareholders to provide for a
representative to negotiate and enter into the Share Exchange
Agreement on their behalf.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the parties agree as follows:
1. Appointment of Shareholders Representative.
------------------------------------------
The parties to this Agreement hereby agree to the appointment of Xxxxxxx
XxxXxxxxx (the "Shareholders Representative") as representative of the parties
to this Agreement, for the purpose of negotiating and entering into the Share
Exchange Agreement on their behalf.
2. Escrow and Disbursement of Shares by Representative.
---------------------------------------------------
(a) At the Closing of the Share Exchange Agreement, WICK will provide or
cause to be provided the Common Stock to the Shareholders Representative.
(b) The Shareholders Representative shall, within a reasonable period of
time following the Closing, forward the shares of the Common Stock to the
18
Shareholders on a pro rata basis, in the same proportion as the percentage of
their ownership interest in the STWP Stock, as set forth on Schedule A annexed
hereto. Any fractional shares that will result due to such pro rata distribution
will be rounded up to the next highest whole number.
(c) Schedule A may be amended by the parties to this Agreement at or prior
to the Closing in order to give effect to the conversion by Shenyang Tianwei
Pharmaceutical Factory ("STPF") of its interest in Shenyang Tainwei Werke
Pharmaceutical Co., Ltd. ("STWP") into equity in WERKE and to reflect other
changes in the capital structure of WERKE which may be caused by investment into
WERKE by third parties prior to the Closing. Any additional shareholders which
are added to Schedule A, at or prior to Closing will agree to be bound by the
terms of this Agreement, however, their failure to do so prior to Closing will
not effect the validity or enforceability of this Agreement as between the
present parties.
3. Representations and Warranties of Shareholders.
----------------------------------------------
(a) The Shareholders agree and understand that they are appointing the
Shareholders Representative to negotiate the Shareholders Agreement on their
behalf and that, as a result, the Shareholders Representative may bind them to
the terms of such agreement in accordance with his reasonable judgement.
(b) The Shareholders agree and understand that the Shareholders Representative
may agree to representations, warranties and covenants on their behalf in
connection with the Share Exchange for which they may be subject to liability or
damages in the future should they breach such representations, warranties or
covenants.
(c) The Shareholders agree and understand that they will have no right to
review the final Share Exchange Agreement prior to its execution on their behalf
by the Shareholders Representative and hereby waive all right to such review.
4. Indemnification.
---------------
The Shareholders and the Company shall, to the fullest extent legally
permissible, indemnify the Shareholders Representative against any and all
liabilities and expenses incurred in connection with the defense or disposition
of any action, suit, or other proceeding by reason of the Shareholders
Representative having served in his capacity with respect to this Agreement, the
Share Exchange Agreement and any ancillary agreements thereto; except with
respect to any matter as to which the Shareholders Representative shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the parties
hereto.
5. General Provisions.
------------------
(a) This agreement shall be governed by and under the laws of the State of
19
Delaware, USA without giving effect to conflicts of law principles. If any
provision hereof is found invalid or unenforceable, that part shall be amended
to achieve as nearly as possible the same effect as the original provision and
the remainder of this agreement shall remain in full force and effect.
(b) Any dispute arising under or in any way related to this agreement shall be
submitted to binding arbitration by the American Arbitration Association in
accordance with the Association's commercial rules then in effect. The
arbitration shall be conducted in the State of Maryland. The arbitration shall
be binding on the parties and the arbitration award may be confirmed by any
court of competent jurisdiction.
(c) This agreement constitutes the entire agreement and final understanding of
the parties with respect to the subject matter hereof and supersedes and
terminates all prior and/or contemporaneous understandings and/or discussions
between the parties, whether written or verbal, express or implied, relating in
any way to the subject matter hereof. This agreement may not be altered,
amended, modified or otherwise changed in any way except by a written agreement,
signed by the parties.
(d) This agreement is entered into by the parties hereto for their exclusive
benefit. The Agreement is expressly not intended for the benefit of any other
party, including but not limited to, any creditor of the Company, the
Shareholders, WICK or any other person, and no third party shall have any rights
under this Agreement or otherwise.
(e) Any notice or other communication pursuant hereto shall be given to a party
at its address set forth in Schedule A annexed hereto, by (i) personal delivery,
(ii) commercial overnight courier with written verification of receipt, or (iii)
registered or certified mail. If so mailed or delivered, a notice shall be
deemed given on the earlier of the date of actual receipt or three (3) days
after the date of authorized delivery.
(f) This agreement may be executed in counterparts, each one of which shall
constitute an original and all of which taken together shall constitute one
document.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first written above.
Shenyang Tianwei Pharmaceutical Factory
By: /s/ Madam Wang Xxx Xxx
----------------------
Madam Wang Xxx Xxx,
Chairman
By: /s/ Xxxxxxx X. XxxXxxxxx
------------------------
Xxxxxxx X. XxxXxxxxx
Vice Chairman
20
Shareholders Representative
/s/ Xxxxxxx X. XxxXxxxxx
--------------------------------------
Xxxxxxx X. XxxXxxxxx
THE SHAREHOLDERS:
/s/ Xxxxxxx X. XxxXxxxxx
--------------------------------------
Name: Xxxxxxx XxxXxxxxx
/s/ Xxxxxxx X. XxxXxxxxx
--------------------------------------
Name: The XxxXxxxxx Group, Inc.
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
/s/ That Ngo
--------------------------------------
Name: That Ngo Ph.D.
/s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: TriPoint Capital Advisors, Inc.
