Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is entered into
this 22nd day of August, 2003, to be deemed effective the 2nd day of September,
2003 (the "Effective Date"), by and among Strategika, Inc., a corporation
organized under the laws of the State of Delaware ("Strategika"); Tianshi
International Holdings Group Limited, a corporation organized under the laws of
the British Virgin Islands ("TIANSHI"); Jin Xxxx Xx, Xxxx Xxx Jun, and Xxx Xx
Peng, each a Chinese national who are the sole stockholders of TIANSHI (the
"TIANSHI Stockholders").
WITNESSETH:
RECITALS
WHEREAS, the respective Boards of Directors of Strategika and TIANSHI
have adopted resolutions pursuant to which Strategika shall acquire and the
TIANSHI Stockholders shall exchange for shares of the common capital stock of
Strategika 100% of the outstanding common stock of TIANSHI ( the TIANSHI
Shares"); and
WHEREAS, the sole consideration for the exchange of the TIANSHI Shares
shall be the receipt by the TIANSHI Stockholders of shares of the common capital
stock of Strategika, $.001 par value per share, as more particularly set forth
in Exhibit "A" hereto. The shares of Strategika's common stock shall be deemed
"restricted securities" as defined in Rule 144 of the Securities Act of 1933, as
amended ( the "Act"); and
WHEREAS, on August 18, 2003, Strategika completed a 6.5-for-one forward
spilt (the "Forward Split") of its common capital stock and as such, all share
numbers contained herein that relate to the common capital stock of Strategika,
have been adjusted for the Forward Split; and
WHEREAS, the TIANSHI Stockholder shall acquire in exchange such
"restricted securities" of Strategika in a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended, and/or
any other "tax free" exemptions thereunder that may be available for this
exchange, if and only to the extent that the Internal Revenue Code applies to
this Agreement and the transactions contemplated thereby;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, it is agreed:
Section 1
Exchange of Stock
1.1 Transfer and Number of Shares. The TIANSHI Stockholders agree to
transfer to Strategika at the closing (the "Closing") the TIANSHI Shares, in
exchange for 68,495,000 newly issued and restricted shares of common stock of
Strategika, as outlined in Exhibit A. After the Closing, there will be
71,998,302 outstanding shares of common stock of the reorganized Strategika,
which takes into account the cancellation of 29,000,000 shares of Strategika's
common stock held in the name of Xxxx Xxxxxxx as outlined in Section 1.5 hereof.
1.2 Exchange of Certificates by TIANSHI Stockholders. The transfer of
the TIANSHI Shares shall be effected by the delivery to Strategika at the
Closing of stock certificates duly endorsed in blank or accompanied by stock
powers executed in blank with all signatures witnessed or guaranteed to the
satisfaction of Strategika and with all necessary transfer taxes and other
revenue stamps affixed and acquired at the TIANSHI Stockholders' expense.
1.3 Further Assurances. At the Closing and from time to time
thereafter, the TIANSHI Stockholders shall execute such additional instruments
and take such other action as Strategika may request in order to exchange and
transfer clear title and ownership in the TIANSHI Shares to Strategika.
1.4 Cancellation of Shares in the Name of Xxxx Xxxxxxx. Effective
simultaneously with the Closing, Xxxx Xxxxxxx returned to Strategika and
Strategika duly cancelled 29,000,000 shares of Strategika's common stock held by
Xx. Xxxxxxx. These shares were canceled on the books and records of Strategika's
transfer agent, Securities Transfer Corporation at 0000 Xxxxxx Xxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, and have been returned to the status of authorized and
unissued securities of Strategika.
1.5 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. On the Effective Date, the
present directors and executive officers of Strategika shall designate the
directors and executive officers nominated by the TIANSHI Stockholders to serve
in their place and stead, until the next respective annual meeting of the
stockholders and the Board of Directors of the reorganized Strategika, and until
their respective successors shall be elected and qualified or until their
respective prior resignations or terminations. The following shall be appointed
directors and officers of Strategika upon the closing of the transactions
contemplated herein: Jin Xxxx Xx, Director/President and Chief Executive
Officer; Wen Jun Jiao, Director/Secretary/Chief financial Officer; Xxx Xx Peng,
Director, Gangji Qian, Director, and Xxxxxx Xxxx, Director. The current
directors and executive officers shall resign, in seriatim, on the Effective
Date.
1.6 Assets and Liabilities of Strategika at Closing. Strategika shall
have no assets and no liabilities at Closing, and all costs incurred by
Strategika incident to the Agreement shall have been paid or satisfied.
1.7 Employee Stock Option Plan. Strategika agrees to recognize and
adopt the employee stock option plans of TIANSHI such that the shares of TIANSHI
reserved for issuance thereunder, shall be replaced by 13,500,000 shares of
Strategika common stock.
1.8 Present Outstanding Securities of Strategika . TIANSHI will not
contest the validity of any of the presently outstanding shares of Strategika
common stock.
1.9 Condition Precedent to the Closing. On or before the Effective Date
the following conditions will have been satisfied by TIANSHI: (a) the TIANSHI
Stockholders and TIANSHI shall have provided Strategika with
satisfactory evidence that TIANSHI has acquired eighty (80%) of the ownership of
Tianjin Tianshi Bio Development Company , a Chinese registered Sino-Foreign
Joint Venture Company ("Tianshi China"), and that the 80% ownership of Tianshi
China has been owned by TIANSHI, (b) an opinion of counsel confirming that
TIANSHI has an 80% controlling interest in Tianshi China shall be delivered to
Strategika, and (c) the TIANSHI Financial Statements (as hereinafter defined),
with the signed auditor's report, as applicable, shall be delivered to
Strategika .
1.10 Closing. This Agreement will be deemed to be completed on the
execution and delivery of the Agreement by all the parties herein (the "Closing
Date"), and the transactions contemplated herein deemed effective on the
Effective Date, subject to the satisfaction by TIANSHI of the conditions set
forth in Section 1.9 above.
Section 2
Closing
The Closing contemplated by Section 1 shall be held at the offices of
Xxxxxx Xxxxxxx, Esq., Suite 6000, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, unless
another place or time is agreed upon in writing by the parties. The Closing may
also be accomplished by wire, express mail or other courier service, conference
telephone communications or as otherwise agreed by the respective parties or
their duly authorized representatives.
Section 3
Representations and Warranties of Strategika
Strategika represents and warrants to, and covenants with, the TIANSHI
Stockholders and TIANSHI as follows:
3.1 Corporate Status: Compliance with Securities Laws. Strategika is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is licensed or qualified as a foreign corporation
in all jurisdictions in which the nature of its business or the character or
ownership of its properties makes such licensing or qualification necessary.
Strategika is a publicly-held company; and Strategika is not in violation of any
applicable federal or state securities laws, rules or regulations. Strategika's
common stock is quoted on the OTC Bulletin Board of the National Association of
Securities Dealers, Inc. (the "NASD") under the symbol "SGKA," though there is
at present no "established trading market" for its securities. The shares of
Strategika common stock issuable to the TIANSHI Stockholders hereunder will be
eligible for resale in reliance upon Rule 144 of the Act, without registration
under the Act, after satisfaction by the TIANSHI Stockholders of the one year
holding period established by Rule 144 and other requirements imposed by each of
Rule 144, the Act, generally, and the Securities Exchange Act of 1934.
3.2 Capitalization. The current authorized capital stock of Strategika
consists of 250,000,000 shares of $.001 par value common voting stock, of which
approximately 32,503,302 shares are issued and outstanding, all fully paid and
non-assessable. Except as otherwise provided herein, there are no outstanding
options, warrants or calls pursuant to which any person has the right to
purchase any authorized and un-issued common or other securities of Strategika.
3.3 Financial Statements. The financial statements of Strategika
furnished to the TIANSHI Stockholders and TIANSHI, consisting of audited
financial statements for the years ended December 31, 2001 and 2002, and
unaudited financial statements for the period ended June 30, 2003, as on file
with the SEC and incorporated herein by reference, are correct and fairly
present the financial condition of Strategika at such dates and for the periods
involved; such statements were prepared in accordance with generally accepted
accounting principles consistently applied, and no material change has occurred
in the matters disclosed therein. Such financial statements do not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading.
3.4 Undisclosed Liabilities. Strategika has no liabilities of any
nature except to the extent reflected or reserved against in its balance sheets,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due.
3.5 Interim Changes. Since the dates of its balance sheets, there have
been no (i) changes in financial condition, assets, liabilities or business of
Strategika which, in the aggregate, have been materially adverse; (ii) damages,
destruction or losses of or to property of Strategika, payments of any dividend
or other distribution in respect of any class of stock of Strategika, or any
direct or indirect redemption, purchase or other acquisition of any class of any
such stock; or (iii) increases paid or agreed to in the compensation, retirement
benefits or other commitments to its employees.
3.6 Title to Property. Strategika has good and marketable title to all
properties and assets, real and personal, reflected in its balance sheets, and
the properties and assets of Strategika are subject to no mortgage, pledge, lien
or encumbrance, with respect to which no default exists.
3.7 Litigation. There is no litigation or proceeding pending, or to the
knowledge of Strategika, threatened, against or relating to Strategika, its
properties or business. Further, no officer, director or person who may be
deemed to be an "affiliate" of Strategika is party to any material legal
proceeding which could have an adverse effect on Strategika (financial or
otherwise), and none is party to any action or proceeding wherein any has an
interest adverse to Strategika.
3.8 Books and Records. Strategika will deliver to the TIANSHI
Stockholders and TIANSHI or their respective representatives all of Strategika's
books, records, contracts and other corporate .
3.9 Tax Returns. Strategika has filed all United States federal and
state income or franchise tax returns required to have been filed by it or its
predecessors.
3.10 Confidentiality. Strategika's current directors and officers and
their representatives will keep confidential any information which they obtain
from the TIANSHI Stockholders or from TIANSHI concerning the properties, assets
and business of TIANSHI.
3.11 Corporate Authority. Strategika has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to the TIANSHI Stockholder and TIANSHI or their
respective representatives at the Closing a certified copy of resolutions of its
Board of Directors authorizing execution of this Agreement by Strategika's
officers and performance thereunder, and that the directors adopting and
delivering such resolutions are the duly elected and incumbent directors of
Strategika.
3.12 Due Authorization. Execution of this Agreement and performance by
Strategika hereunder have been duly authorized by all requisite corporate action
on the part of Strategika, and this Agreement constitutes a valid and binding
obligation of Strategika and performance hereunder will not violate any
provision of the Certificate of Incorporation or other documents, Bylaws,
agreements, mortgages or other commitments of Strategika, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application now or
hereafter in effect relating to or affecting the enforcement of creditors' right
generally and the application of general equitable principles in any action,
legal or equitable.
3.13 Environmental Matters. Strategika has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of Strategika. In
addition, to the best knowledge of Strategika, there are no substances or
conditions which may support a claim or cause of action against Strategika or
any of Strategika' current or former officers, directors, agents or employees,
whether by a governmental agency or body, private party or individual, under any
Hazardous Materials Regulations. "Hazardous Materials" means any oil or
petrochemical products, PCB's, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, solid or hazardous wastes, chemicals, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" under any applicable
federal or state laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14 Access to Information Regarding TIANSHI. Strategika acknowledges
that it has been delivered copies of what has been represented to be
documentation containing all material information respecting TIANSHI (including
its 80% owned subsidiary, Tianshi China), and TIANSHI's present and contemplated
business operations, potential acquisitions, management and other factors; that
it has had a reasonable opportunity to review such documentation and discuss it,
to the extent desired, with its legal counsel, directors and executive officers;
that it has had, to the extent desired, the opportunity to ask questions of and
receive responses from the directors and executive officers of TIANSHI, and with
the legal and accounting firms of TIANSHI, with respect to such documentation;
and that to the extent requested, all questions raised have been answered to
Strategika's complete satisfaction.
Section 4
Representations, Warranties and Covenants of TIANSHI
and the TIANSHI Stockholders
TIANSHI and the TIANSHI Stockholders represent and warrant to, and
covenant with, Strategika as follows:
4.1 Ownership of TIANSHI. The TIANSHI Stockholders own the TIANSHI
Shares free and clear of any liens or encumbrances of any type or nature
whatsoever, and have full right, power and authority to convey the TIANSHI
Shares that are owned by them without qualification.
4.2 Ownership of Tianshi China. TIANSHI owns 80% of the Tianshi China,
free and clear of any liens or encumbrances of any type or nature whatsoever,
and has full right, power and authority to convey its Tainshi China ownership
that it owns without qualification.
4.3 Corporate Status of TIANSHI. TIANSHI is a corporation duly
organized, validly existing and in good standing under the laws of British
Virgin Islands, and is licensed or qualified as a foreign corporation in all
jurisdictions or foreign countries and provinces in which the nature of
TIANSHI's business or the character or ownership of TIANSHI properties makes
such licensing or qualification necessary. It has one subsidiary that is
80%-owned, Tianshi China.
4.4 Corporate Status of Tianshi China. Tianshi China is a Sino-Foreign
Joint Venture Company duly organized, validly existing and in good standing
under the laws of the People's Republic of China, and is licensed or qualified
as a foreign corporation in all states of the United States or foreign countries
and provinces in which the nature of its business or the character or ownership
of its properties makes such licensing or qualification necessary.
4.5 Capitalization of TIANSHI. The authorized capital stock of TIANSHI
consists of 5,000,000 shares of common stock, $0.01 par value per share, of
which 684,950 shares are issued and outstanding, and which is fully paid and
non-assessable. Except for an option for 135,000 shares that was reserved to its
employees, there are no outstanding options, warrants or calls pursuant to which
any person has the right to purchase any authorized and unissued common or other
securities of TIANSHI.
4.6 Capitalization of Tianshi China. The paid-in capital of Tianshi
China is $10,000,000, all fully paid and non-assessable. There are no
outstanding options, warrants or calls pursuant to which any person has the
right to purchase any authorized and unissued common or other equities of
Tianshi China.
4.7 Financial Statements. When delivered to Strategika, The financial
statements of TIANSHI (the "TIANSHI Financial Statements"), which consist solely
of the financial statements of Tianshi China furnished to Strategika, consisting
of an audited compiled balance sheet and income statement for the period ended
December 31, 2001, 2002, and unaudited financial statements for the period ended
June 30, 2003, shall be correct and fairly present the combined financial
condition of TIANSHI and Tianshi China as of these dates and for the periods
involved; such statements shall have been prepared in accordance with generally
accepted accounting principles consistently applied, and no material change
shall have occurred in the matters disclosed therein. The TIANSHI Financial
Statements do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
4.8 Undisclosed Liabilities of TIANSHI. TIANSHI has no material
liabilities of any nature except to the extent reflected or reserved against in
the Tianshi China balance sheet, whether accrued, absolute, contingent or
otherwise, including, without limitation, tax liabilities and interest due or to
become due.
4.9 Undisclosed Liabilities of Tianshi China. Tianshi China has no
material liabilities of any nature except to the extent reflected or reserved
against in its balance sheet, whether accrued, absolute, contingent or
otherwise, including, without limitation, tax liabilities and interest due or to
become due.
4.10 Interim Changes of TIANSHI. Since the dates of its balance sheet,
there have been no (i) changes in the financial condition, assets, liabilities
or business of TIANSHI, which in the aggregate, have been materially adverse;
(ii) damages, destruction or loss of or to the property of TIANSHI, payment of
any dividend or other distribution in respect of the capital stock of TIANSHI,
or any direct or indirect redemption, purchase or other acquisition of any such
stock; or (iii) increases paid or agreed to in the compensation, retirement
benefits or other commitments to their employees.
4.11 Interim Changes of Tianshi China. Since the dates of its balance
sheet, there have been no (i) changes in the financial condition, assets,
liabilities or business of Tianshi China, which in the aggregate, have been
materially adverse; (ii) damages, destruction or loss of or to the property of
Tianshi China, payment of any dividend or other distribution in respect of the
capital stock of Tianshi China, or any direct or indirect redemption, purchase
or other acquisition of any such stock; or (iii) increases paid or agreed to in
the compensation, retirement benefits or other commitments to their employees.
4.12 Title to Property of TIANSHI. TIANSHI has good and marketable
title to all properties and assets, real and personal, proprietary or otherwise,
reflected in the Tianshi China balance sheet.
4.13 Title to Property of Tianshi China. Tianshi China has good and
marketable title to all properties and assets, real and personal, proprietary or
otherwise, reflected in its balance sheet.
4.14 Litigation of TIANSHI. There is no litigation or proceeding
pending, or to the knowledge of TIANSHI, threatened, against or relating to
TIANSHI or its properties or business. Further, no officer, director or person
who may be deemed to be an affiliate of TIANSHI is party to any material legal
proceeding which could have an adverse effect on TIANSHI (financial or
otherwise), and none is party to any action or proceeding wherein any has an
interest adverse to TIANSHI.
4.15 Litigation of Tianshi China. There is no litigation or proceeding
pending, or to the knowledge of Tianshi China, threatened, against or relating
to Tianshi China or its properties or business. Further, no officer, director or
person who may be deemed to be an affiliate of Tianshi China is party to any
material legal proceeding which could have an adverse effect on Tianshi China
(financial or otherwise), and none is party to any action or proceeding wherein
any has an interest adverse to Tianshi China.
4.16 Books and Records of TIANSHI. The TIANSHI Stockholders have given
to Strategika and its representatives full access to all of its offices, books,
records, contracts and other corporate documents and properties so that
Strategika could inspect and audit them; and (ii) furnished such information
concerning the properties and affairs of TIANSHI as Strategika has requested.
4.17 Books and Records of Tianshi China. Tianshi China has (1) given to
Strategika and its representatives full access to all of its offices, books,
records, contracts and other corporate documents and properties so that
Strategika could inspect and audit them; and (2) furnished such information
concerning the properties and affairs of Tianshi China as Strategika requested.
4.18 Tax Returns of TIANSHI. TIANSHI has filed all income or franchise
tax returns required to be filed or has received currently effective extensions
of the required filing dates.
4.19 Tax Returns of Tianshi China. Tianshi China has filed all income
or other tax returns required to be filed in China or has received currently
effective extensions of the required filing dates.
4.20 Investment Intent. The TIANSHI Stockholders are acquiring the
securities to be exchanged and delivered to them under this Agreement for
investment and not with a view to the sale or distribution thereof, and they
have no commitment or present intention to sell or distribute the Strategika
securities to be received hereunder .
4.21 Corporate Authority of TIANSHI. TIANSHI and the TIANSHI
Stockholders have full corporate power and authority to enter into this
Agreement and to carry out their obligations hereunder and will deliver to
Strategika or its representative at the Closing certified copies of resolutions
of TIANSHI'S Board of Directors authorizing execution of this Agreement by its
officers and performance thereunder.
4.22 Due Authorization. Execution of this Agreement and performance by
TIANSHI and the TIANSHI Stockholders hereunder have been duly authorized by all
requisite corporate action on the part of TIANSHI and the TIANSHI Stockholders,
and this Agreement constitutes a valid and binding obligation of TIANSHI and the
TIANSHI Stockholders and performance hereunder will not violate any provision of
the Articles of Association or other Charter documents, Bylaws, agreements,
mortgages or other commitments of TIANSHI or the TIANSHI Stockholders, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application now or
hereafter in effect relating to or affecting the enforcement of creditors' right
generally and the application of general equitable principles in any action,
legal or equitable.
4.23 Environmental Matters. TIANSHI and Tainshi China have no knowledge
of any assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of TIANSHI or its
predecessors. In addition, to the best knowledge of TIANSHI and Tianshi China,
there are no substances or conditions which may support a claim or cause of
action against TIANSHI and Tianshi China or any of its current or former
officers, directors, agents, employees or predecessors, whether by a
governmental agency or body, private party or individual, under the current
Chinese laws.
4.24 Access to Information Regarding Strategika. TIANSHI and the
TIANSHI Stockholders acknowledge that they have been delivered copies of what
has been represented to be documentation containing all material information
respecting Strategika and its present and contemplated business operations,
potential acquisitions, management and other factors, by delivery to them and/or
by access to such information in the XXXXX Archives of the Securities and
Exchange Commission at xxx.xxx.xxx; that they have had a reasonable opportunity
to review such documentation and to discuss it, to the extent desired, with
their legal counsel, directors and executive officers; that they have had, to
the extent desired, the opportunity to ask questions of and receive responses
from the sole director and executive officer of Strategika, and with the legal
and accounting firms of Strategika, with respect to such documentation; and that
to the extent requested, all questions raised have been answered to their
complete satisfaction.
Section 5
Conditions Precedent to Obligations of TIANSHI and the TIANSHI Stockholders
All obligations of TIANSHI and the TIANSHI Stockholders under this
Agreement are subject, at their option, to the fulfillment, before or at the
Closing, of each of the following conditions:
5.1 Representations and Warranties True at Closing. The representations
and warranties of Strategika contained in this Agreement shall be deemed to have
been made again at and as of the Closing and shall then be true in all material
respects and shall survive the Closing.
5.2 Due Performance. Strategika shall have performed and complied with
all of the terms and conditions required by this Agreement to be performed or
complied with by it before the Closing.
5.3 Officers' Certificate. TIANSHI shall have been furnished with a
certificate signed by the President of Strategika, in such capacity, attached
hereto as Exhibit C and incorporated herein by reference, dated as of the
Closing, certifying (i) that all representations and warranties of Strategika
contained herein are true and correct; and (ii) that since the date of the
financial statements (Exhibits B and B-1 hereto), there has been no material
adverse change in the financial condition, business or properties of Strategika,
taken as a whole.
5.4 Assets and Liabilities of Strategika. Unless otherwise agreed,
Strategika shall have no assets and no liabilities at Closing, and all costs,
expenses and fees incident to the Agreement shall have been paid.
5.5 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. At or simultaneous with the
Closing, corporate resolutions of Strategika shall have adopted all action
necessary to accomplish the resignation of Strategika's directors and executive
officers and the designation of the nominees of the TIANSHI Stockholder to the
Board of Directors and to serve as officers as outlined in Section 1.5 hereof.
Section 6
Conditions Precedent to Obligations of Strategika
All obligations of Strategika under this Agreement are subject, at
Strategika's option, to the fulfillment, before or at the Closing or on the
Effective Date, as applicable, of each of the following conditions. It is
expressly understood by TIANSHI and the TIANSHI Stockholders that Strategika has
the right to terminate this Agreement in the event the conditions set forth in
Section 1.9 hereof are not satisfied on or before the Effective Date, and said
parties further agree to execute any and all documents and cooperate in all
manners necessary to ensure a proper unwinding of the transactions contemplated
herein.
6.1 Representations and Warranties True at Closing. The representations
and warranties of TIANSHI, the TIANSHI Stockholders and Tianshi China contained
in this Agreement shall be deemed to have been made again at and as of the
Closing and shall then be true in all material respects and shall survive the
Closing.
6.2 Due Performance. TIANSHI and the TIANSHI Stockholders shall have
performed and complied with all of the terms and conditions required by this
Agreement to be performed or complied with by them before the Closing or the
Effective Date, as applicable.
6.3 Officers' Certificate. Strategika shall have been furnished with a
certificate signed by the President of TIANSHI, in such capacity, attached
hereto as Exhibit D and incorporated herein by reference, dated as of the
Closing, certifying (i) that all representations and warranties of TIANSHI and
the TIANSHI Stockholders contained herein are true and correct; and (ii) that
since the date of the TIANSHI Financial Statements, there has been no material
adverse change in the financial condition, business or properties of TIANSHI,
taken as a whole.
Section 7
General Provisions
7.1 Further Assurances. At any time, and from time to time, after the
Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
7.2 Waiver. Any failure on the part of any party hereto to comply with
any its or their obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
7.3 Brokers. Each party represents to the other parties hereunder that
in the event brokers or finders in connection with this Agreement, each party
agrees to indemnify and hold harmless the other parties against any fee, loss or
expense arising out of claims by brokers or finders employed or alleged to have
been employed by he/she/it.
7.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class registered or certified mail, return receipt requested, as
follows:
If to Strategika's Management Prior to Closing:
Xx. Xxxx Xxxxxxx
0000 Xxxxxxx Xxx.
Xxxxxx, Xxxxx 00000
If to TIANSHI:
X.X. Xxx 000
Offshore Incorporations Center
Road Town, Tortola, British Virgin Islands
With a copy to:
Xxxxxxx Law, Esq.
King and Wood, LLP
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
If to the TIANSHI Stockholders: C/O TIANSHI
7.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
7.6 Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement
7.7 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware. Any actions
permitted hereunder shall be brought in the State of Delaware.
7.8 Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns.
7.9 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.10 Default. In the event of any default hereunder, the prevailing
party in any action to enforce the terms and provisions hereof shall be entitled
to recover reasonable attorney's fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan
of Reorganization effective the latest date hereof.
STRATEGIKA
By:_________________________________
Tianshi International Holdings Group
Limited
By:_________________________________
____________________________________
Jin Xxxx Xx
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Jiao Wen Jun
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Xxx Xx Peng
