SHARE EXCHANGE AGREEMENT
Exhibit
99.2
This
SHARE EXCHANGE AGREEMENT
(this “Agreement”) is
entered into as of this 5th day of January, 2010, by and between Link Resources,
Inc., a Nevada corporation (hereinafter referred to as “Link”), Chance High
International Limited, a British Virgin Islands business company (“Chance High”) and the
shareholders of Chance High listed on Schedule A hereto
(collectively, the “Chance High
Shareholders”).
WHEREAS, Link is a publicly
reporting company organized under the laws of Nevada with no significant
operations;
WHEREAS, the Chance High
Shareholders collectively own 100% of the issued and outstanding capital stock
of Chance High;
WHEREAS, Chance High owns 100%
of the issued and outstanding capital stock of Yantai Shencaojishi
Pharmaceuticals Co., Ltd. (“WOFE”), a wholly foreign owned
enterprise incorporated under the laws of the People’s Republic of China (“PRC”);
WHEREAS, on December 7, 2009,
WOFE entered into a series of contractual agreements with Yantai Bohai
Pharmaceuticals Group Co., Ltd. (“Bohai Pharma”), a company
incorporated under the laws of the PRC, and its three shareholders, in which
WOFE effectively assumed management of the business activities of Bohai Pharma
and has the right to appoint all executives and senior management and the
members of the board of directors (Chance High, WOFE and Bohai Pharma shall be
referred to herein collectively as the “Group”);
WHEREAS, Link desires to
acquire 100% of the issued and outstanding equity securities of Chance High (the
“Chance High Shares”)
from the Chance High Shareholders in exchange (the “Exchange”) for the issuance by
Link to the Chance High Shareholders of an aggregate of 13,162,500 newly issued
shares of Link common stock, par value $0.001 per share (together with any
securities into which such shares may be reclassified, the “Common Stock”) and the Chance
High Shareholders desire to exchange its Chance High Shares for such shares of
Common Stock on the terms described herein;
WHEREAS, on the Closing Date,
and as a result of the transactions contemplated hereby, Chance High will become
a wholly-owned subsidiary of Link (which shall be renamed Bohai Pharmaceuticals
Group Inc. following the Closing Date);
WHEREAS, such Exchange is in
connection with the offering (the “Offering”) pursuant to a
Securities Purchase Agreement (the “Purchase Agreement”) between Link and certain
investors named in the Purchase Agreement in connection with a private placement
by Link of units (the “Units”), with each Unit
consisting of: (i) an eight (8%) percent convertible promissory note (each a
“Note,” and,
collectively, the “Notes”) of Link in the
aggregate principal amount of $2.00, which Note shall be convertible into shares
of Common Stock at $2.00 per share (subject to adjustment as set forth in the
Note) and (ii) a common stock purchase warrant (collectively, the “Warrants”) to purchase one (1)
share of Common Stock at an exercise price of $2.40 per share, in each case as
further described in the Confidential Private Placement Memorandum of Link,
dated December 10, 2009 (the “Memorandum”); and
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WHEREAS, the closing of the
Exchange is conditioned upon all of the conditions of the Offering being met,
and the Offering is conditioned upon the closing of the Exchange.
NOW THEREFORE, on the basis of
the foregoing stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
parties to be derived here from, and intending to be legally bound hereby, it is
hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF CHANCE HIGH
As an
inducement to, and to obtain the reliance of Link, except as set forth in the
Schedules of Chance High attached hereto (the “CH Disclosure Schedules”) or
in the Memorandum, Chance High hereby represents and warrants to Link as of the
Closing Date (as defined below) as follows. As used herein, the term “knowledge of the Group” or
similar language refers to the actual knowledge of the executive officers of
Bohai Pharma.
Section
1.01 Incorporation. Each
member of the Group is organized under the laws of the jurisdiction set forth in
Schedule
1.01(b) to the CH Disclosure Schedules, is duly formed or organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has the requisite power and authority to own, lease and operate
its assets and properties and to carry on its business as it is now being or
currently planned by each member of the Group to be conducted. Each
member of the Group is in possession of all governmental or third party
approvals necessary to own, lease and operate the properties it purports to own,
operate or lease, to carry on its business as it is now being conducted, to
consummate the transactions contemplated by this Agreement. No member
of the Group is in violation of any of the provisions of their respective
charter or organization documents. The ownership records (which have
been delivered to Link) of each Group member’s registered capital are true,
complete and accurate records of such ownership as of the date of such records
and contain all transfers of such registered capital since the time of their
respective organization. No member of the Group is required to
qualify to do business as a foreign corporation in any other jurisdiction,
except where the failure to so qualify would not have a material adverse effect
on: (i) the assets, liabilities, results of operations, condition (financial or
otherwise) or business of the Group taken as a whole; or (ii) the ability of
Chance High to perform its obligations hereunder, but, to the extent
applicable, shall exclude any circumstance, change or effect to the extent
resulting or arising from: (A) any change in general economic conditions in the
industries or markets in which the Group operates so long as the Group is not
disproportionately (in a material manner) affected by such changes; (x) national
or international political conditions, including any engagement in hostilities,
whether or not pursuant to the declaration of a national emergency or war, or
the occurrence of any military or terrorist attack so long as the Group is not
disproportionately (in a material manner) affected by such changes; (y) changes
in United States generally accepted accounting principles, or the interpretation
thereof; or (z) the entry into or announcement of this Agreement, actions
contemplated by this Agreement, or the consummation of the transactions
contemplated hereby (a “Material Adverse
Effect”).
Section
1.02 Authorized
Shares. Authorized
Shares. The number of shares which Chance High is authorized
to issue consists of 50,000 shares of a single class, par value US$ 1.00 per
share. There are 50,000 shares currently of Chance High issued and
outstanding. The issued and outstanding shares of Chance High are
validly issued, fully paid, and non-assessable and not issued in violation of
the preemptive or other rights of any person.
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Section
1.03 Subsidiaries. Except
as set forth on Schedule 1.03 to the
CH Disclosure Schedules (which sets forth the corporate structure of the Group),
Chance High does not have any subsidiaries, and does not own, beneficially or of
record, any shares of any other entity.
Section
1.04 Financial
Statements.
(a) Included
in the Memorandum are: (i) the audited balance sheets of Bohai Pharma as of June
30, 2009 and June 30, 2008 and the related audited statements of operations,
stockholders’ equity and cash flows for the fiscal years ended June 30, 2009 and
June 30, 2008 together with the notes to such statements and the opinion of Xxxxxx Xxxxxxx CF H.K.
CPA Ltd., independent certified public accountants, and (ii) the unaudited
financial statements of Bohai Pharma for the quarter ended September 30, 2009
(the “Financial
Statements”).
(b) The
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved. The Bohai Pharma balance sheets included as part of the
Financial Statements are true and accurate and present fairly as of their
respective dates the financial condition of Bohai Pharma. As of the
date of such balance sheets, except as and to the extent reflected or reserved
against therein, Bohai Pharma had no liabilities or obligations (absolute or
contingent) which should be reflected in the balance sheets or the notes thereto
prepared in accordance with generally accepted accounting principles, and all
assets reflected therein are properly reported and present fairly the value of
the assets of Bohai Pharma, in accordance with generally accepted accounting
principles. The statements of operations, stockholders’ equity and
cash flows included as part of the Financial Statements reflect fairly the
information required to be set forth therein by generally accepted accounting
principles.
Section
1.05 Information. The
information concerning the Group set forth in this Agreement and the CH
Disclosure Schedules is complete and accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading.
Section
1.06 Options or
Warrants. Except as set forth in Schedule 1.06 to the
CH Disclosure Schedules, there are no existing options, warrants, calls, or
commitments of any character relating to the authorized and unissued stock of
any member of the Group.
Section
1.07 Absence of Certain Changes
or Events. Except as disclosed in the Memorandum, the CH
Disclosure Schedules or the Financial Statements (with respect to subsequent
events), since September 30, 2009:
(a) There
has not been any material adverse change in the business, operations,
properties, assets, or condition (financial or otherwise) of the
Group;
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(b) No
member of the Group has: (i) amended its memorandum of association or articles
of association or other organizational documents; (ii) declared or made, or
agreed to declare or make, any payment of dividends or distributions of any
assets of any kind whatsoever to stockholders or purchased or redeemed, or
agreed to purchase or redeem, any of its shares; (iii) made any material change
in its method of management, operation or accounting, (iv) entered into any
other material transaction other than sales in the ordinary course of its
business; or (v) made any increase in or adoption of any profit sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with its officers, directors, or
employees; and
(c) No
member of the Group has: (i) granted or agreed to grant any options, warrants or
other rights for its stocks, bonds or other corporate securities calling for the
issuance thereof, (ii) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or contingent)
except as disclosed herein and except liabilities incurred in the ordinary
course of business; (iii) sold or transferred, or agreed to sell or transfer,
any of its assets, properties, or rights or canceled, or agreed to cancel, any
debts or claims; or (iv) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock) except in connection with
this Agreement and the transaction contemplated hereby.
Section
1.08 Litigation and
Proceedings. Except as disclosed on Schedule 1.08 to the
CH Disclosure Schedules, there are no actions, suits, proceedings, or
investigations pending or, to the knowledge of the Group after reasonable
investigation, threatened by or against the Group or affecting the Group or
their respective properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. No member of the Group has any knowledge of
any material default on its part with respect to any judgment, order,
injunction, decree, award, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a
default.
Section
1.09 Contracts.
(a) All
“material” contracts, agreements, franchises, license agreements, debt
instruments or other commitments to which any member of the Group is a party or
by which it or any of its assets, products, technology, or properties are bound,
other than those incurred in the ordinary course of business, are set forth on
Schedule 1.09
to the CH Disclosure Schedules (the “Material
Contracts”). Such schedule contains any oral or written: (i)
contract for the employment of any officer or employee; (ii) profit sharing,
bonus, deferred compensation, stock option, severance pay, pension benefit or
retirement plan, (iii) agreement, contract, or indenture relating to the
borrowing of money, (iv) guaranty of any obligation; (vi) collective bargaining
agreement; or (vii) agreement with any present or former officer or director of
members of the Group.
(b) The
Material Contracts are valid and enforceable by the applicable members of the
Group party thereto in all respects, , except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
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Section
1.10 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, constitute a default under, or
terminate, accelerate or modify the terms of any Material Contract a member of
the Group is a party or to which any of their respective assets, properties or
operations are subject.
Section
1.11 Compliance With Laws and
Regulations. To the best of its knowledge, each member of the
Group has complied with all applicable statutes and regulations of any federal,
state, or other governmental entity or agency thereof, except to the extent that
noncompliance would not have a Material Adverse Effect.
Section
1.12 Approval of
Agreement. The Board of Directors of Chance High has
authorized the execution and delivery of this Agreement by Chance High and has
approved this Agreement and the transactions contemplated hereby.
Section
1.13 Valid
Obligation. This Agreement and all agreements and other
documents executed by Chance High in connection herewith constitute the valid
and binding obligation of Chance High, enforceable in accordance with its or
their terms, except as may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF LINK
As an
inducement to, and to obtain the reliance of Chance High and the Chance High
Shareholders, except as set forth in the Schedules of Link attached hereto (the
“Link Schedules”), Link
hereby represents and warrants to Chance High and the Chance High Shareholders,
as of the date hereof and as of the Closing Date, as follows. As used herein,
the term “knowledge of
Link” or similar language refers to the knowledge of Xxxxxxx Xxxxxxx any
any individual who has served as a named executive officer or director of Link
during the 36 month period prior to the execution of this
Agreement.
Section
2.01 Organization. Link
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada and has the corporate power and is duly authorized under all
applicable laws, regulations, ordinances, and orders of public authorities to
carry on its business in all material respects as it is now being
conducted. Attached as Schedule 2.01 to the
Link Schedules are complete and correct copies of the certificate of
incorporation and bylaws of Link as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Link’s
certificate of incorporation or bylaws. Link has taken all action
required by law, its certificate of incorporation, its bylaws, or otherwise to
authorize the execution and delivery of this Agreement, and Link has full power,
authority, and legal right and has taken all action required by law, its
certificate of incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated.
5
Section
2.02 Capitalization.
(a) Link’s
authorized capitalization consists of (a) 150,000,000 shares of Common Stock, of
which 3,450,000 shares are issued and outstanding prior to the transactions
described in the Memorandum, and (b) 10,000,000 shares of preferred stock, par
value $0.001 per share, none of which are issued and outstanding. All
issued and outstanding shares of Common Stock are legally issued, fully paid,
and non-assessable and not issued in violation of the preemptive or other rights
of any person or entity. As of the Closing Date, no shares of Common
Stock were reserved for issuance upon the exercise of outstanding options or
warrants to purchase the Common Stock or other equity-linked securities of Link
(except with respect to the Notes and the Warrants) and no shares of preferred
stock were reserved for issuance to any party. All outstanding Common
Stock have been issued and granted in compliance with: (i) all applicable
securities laws and (in all material respects) other applicable laws and
regulations, and (ii) all requirements set forth in any material contracts,
agreements, franchises, license agreements, debt instruments or other
commitments to which Link is a party or by which it or any of its assets or
properties are bound, all of which are set forth on Schedule 2.02 to the
Link Disclosure Schedules (the “Link Material
Contracts”).
(b) There
are no equity securities, partnership interests or similar ownership interests
of any class of any equity security of Link, or any securities exchangeable or
convertible into or exercisable for such equity securities, partnership
interests or similar ownership interests, issued, reserved for issuance or
outstanding. Except as contemplated by this Agreement or as set
forth in Schedule
2.02 to the Link Disclosure Schedules, there are no subscriptions,
options, warrants, equity securities, partnership interests or similar ownership
interests, calls, rights (including preemptive rights), commitments or
agreements of any character to which Link is a party or by which it is bound
obligating Link to issue, deliver or sell, or cause to be issued, delivered or
sold, or repurchase, redeem or otherwise acquire, or cause the repurchase,
redemption or acquisition of, any shares of capital stock, partnership interests
or similar ownership interests of Link or obligating Link to grant, extend,
accelerate the vesting of or enter into any such subscription, option, warrant,
equity security, call, right, commitment or agreement. There is no
plan or arrangement to issue Common Stock or preferred stock of Link except as
set forth in this Agreement and in the Memorandum.
(c) Except
as contemplated by this Agreement or the Memorandum and except as set forth in
Schedule 2.02
to the Link Disclosure Schedules, there are no registration rights, and there is
no voting trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which Link is a party or by which it is bound with respect to
any equity security of any class of Link, and there are no agreements to which
Link is a party, or which Link has knowledge of, which conflict with this
Agreement or the transactions contemplated herein or otherwise prohibit the
consummation of the transactions contemplated hereunder.
Section
2.03 Subsidiaries and Predecessor
Corporations. Link does not have any predecessor
corporation(s) or subsidiaries, and does not own, beneficially or of record, any
shares of any other entity.
6
Section
2.04 SEC Filings; Financial
Statements.
(a) Link
has made available to the Chance High Shareholders a correct and complete copy,
or there has been available on the XXXXX system maintained by the U.S.
Securities and Exchange Commission (the “SEC”), copies of each report,
registration statement and definitive proxy statement filed by Link with the SEC
for the 36 months prior to the date of this Agreement (the “Link SEC Reports”), which, to
Link’s knowledge, are all the forms, reports and documents filed by Link with
the SEC for the 36 months prior to the date of this Agreement. As of
their respective dates, to Link’s knowledge, the Link SEC Reports: (i) were
prepared in accordance and complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case
may be, and the rules and regulations of the SEC thereunder applicable to such
Link SEC Reports, and (ii) did not at the time they were filed (and if amended
or superseded by a filing prior to the date of this Agreement then on the date
of such filing and as so amended or superceded) contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Each
set of financial statements (including, in each case, any related notes thereto)
contained in the Link SEC Reports comply as to form in all material respects
with the published rules and regulations of the SEC with respect thereto, were
prepared in accordance with U.S. generally accepted accounting principles,
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto or, in the case of unaudited statements, do not
contain footnotes as permitted by Form 10-Q promulgated under the Exchange Act)
and each fairly presents in all material respects the financial position of Link
at the respective dates thereof and the results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal adjustments which were not or are not
expected to have a material adverse effect on: (i) the assets, liabilities,
results of operations, condition (financial or otherwise) or business of Link;
or (ii) the ability of Link to perform its obligations hereunder, but, to
the extent applicable, shall exclude any circumstance, change or effect to the
extent resulting or arising from: (A) any change in general economic conditions
in the industries or markets in which Link operates so long as Link is not
disproportionately (in a material manner) affected by such changes; (x) national
or international political conditions, including any engagement in hostilities,
whether or not pursuant to the declaration of a national emergency or war, or
the occurrence of any military or terrorist attack so long as Link is not
disproportionately (in a material manner) affected by such changes; (y) changes
in United States generally accepted accounting principles, or the interpretation
thereof; or (z) the entry into or announcement of this Agreement, actions
contemplated by this Agreement, or the consummation of the transactions
contemplated hereby (a “Link Material Adverse Effect”).
(c) As
of the date of all balance sheets included in the Link SEC Reports, except as
and to the extent reflected or reserved against therein, Link had no liabilities
or obligations (absolute or contingent) which should be reflected in the balance
sheets or the notes thereto prepared in accordance with U.S. generally accepted
accounting principles, and all assets reflected therein are properly reported
and present fairly the value of the assets of Link, in accordance with U.S.
generally accepted accounting principles. All statements of
operations, stockholders’ equity and cash flows included in the Link SEC Reports
reflect fairly the information required to be set forth therein by U.S.
generally accepted accounting principles.
7
(d) For
the 36 month period prior to the date of this Agreement, Link has maintained a
system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with U.S. generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(e) Link
has no liabilities with respect to the payment of any federal, state, county,
local or other taxes (including any deficiencies, interest or penalties), except
for taxes accrued but not yet due and payable.
(f) Link
has timely filed all state, federal or local income and/or franchise tax returns
required to be filed by it from inception to the date hereof. Each of
such income tax returns reflects the taxes due for the period covered thereby,
except for amounts which, in the aggregate, are immaterial.
(g) The
books and records, financial and otherwise, of Link are in all material aspects
complete and correct and have been maintained in accordance with good business
and accounting practices.
Section
2.05 Exchange Act
Compliance. Link is in compliance with, and current in,
all of the reporting, filing and other requirements under the Exchange Act, the
Common Stock is registered under Section 12(g) of the Exchange Act, and Link is
in compliance with all of the requirements under, and imposed by, Section 12(g)
of the Exchange Act.
Section
2.06 Information. The
information concerning Link set forth in this Agreement, the Link Schedules and
the Link SEC Reports is complete and accurate in all material respects and does
not contain any untrue statements of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading. In addition, Link has fully
disclosed in writing to the Chance High Shareholders (through this Agreement or
the Link Schedules) all information relating to matters involving Link or its
assets or its present or past operations or activities which: (i) indicated or
may indicate, in the aggregate, the existence of a greater than $1,000
liability, (ii) have led or may lead to a competitive disadvantage on the part
of Link or (iii) either alone or in aggregation with other information covered
by this Section, otherwise have led or may lead to Link Material Adverse Effect,
including, but not limited to, information relating to governmental, employee,
environmental, litigation and securities matters or proceedings and transactions
with affiliates.
Section
2.07 Absence of Certain Changes
or Events. Since the date of the most recent Link balance
sheet included in the Link SEC Reports:
8
(a) there
has not been: (i) any material adverse change in the business, operations,
properties, assets or condition of Link or (ii) any damage, destruction or loss
to Link (whether or not covered by insurance) materially and adversely affecting
the business, operations, properties, assets or condition of Link;
(b) Link
has not: (i) amended its certificate of incorporation or bylaws except as
required by this Agreement; (ii) declared or made, or agreed to declare or make
any payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the aggregate
are outside of the ordinary course of business or material considering the
business of Link; (iv) made any material change in its method of management,
operation, or accounting; (v) entered into any transactions or agreements of any
kind or nature; (vi) made any accrual or arrangement for or payment of bonuses
or special compensation of any kind or any severance or termination
pay to any present or former officer or employee; (vii) increased the rate of
compensation payable or to become payable by it to any of its officers or
directors or any of its salaried employees whose monthly compensation exceed
$1,000; or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement, made to, for or with its officers, directors, or
employees;
(c) Link
has not: (i) granted or agreed to grant any options, warrants, or other rights
for its stock, bonds, or other corporate securities calling for the issuance
thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent); (iii)
paid or agreed to pay any material obligations or liabilities (absolute or
contingent) other than current liabilities reflected in or shown on the most
recent Link balance sheet and current liabilities incurred since that date in
the ordinary course of business and professional and other fees and expenses in
connection with the preparation of this Agreement and the consummation of the
transaction contemplated hereby; (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights, or canceled, or agreed to
cancel, any debts or claims; (v) made or permitted any amendment or termination
of any contract, agreement, or license to which it is a party if such amendment
or termination is material, considering the business of Link; or (vi) issued,
delivered or agreed to issue or deliver, any stock, bonds or other corporate
securities including debentures (whether authorized and unissued or held as
treasury stock), except in connection with this Agreement; and
(d) to
its knowledge, Link has not become subject to any law or regulation which
materially and adversely affects, or in the future, may adversely affect, the
business, operations, properties, assets or condition of the Group as described
in the Memorandum.
Section
2.08 Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of Link after reasonable
investigation, threatened by or against Link or affecting Link or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind
except as disclosed in the Schedule 2.08 to the
Link Schedules. Link has no knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator, or governmental agency or instrumentality
or any circumstance which after reasonable investigation would result in the
discovery of such default.
9
Section
2.09 Contracts. Except
for the Link Material Contracts:
(a) Link
is not a party to, and its assets or properties are not bound by, any contract,
franchise, agreement, debt instrument or other commitments whether such
agreement is in writing or oral;
(b) Link
is not a party to or bound by, and the properties of Link are not subject to any
contract, agreement, other commitment or instrument; any charter or other
corporate restriction; or any judgment, order, writ, injunction, decree, or
award; and
(c) Link
is not a party to any oral or written: (i) contract for the employment of any
officer or employee; (ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv) guaranty of any
obligation, (vi) collective bargaining agreement; or (vii) agreement with any
present or former officer or director of Link.
Section
2.10 No Conflict With Other
Instruments. The execution of this Agreement and the Purchase
Agreement and the consummation of the transactions contemplated hereby and
thereby will not result in the breach of any term or provision of, constitute a
default under, or terminate, accelerate or modify the terms of, any Link
Material Contracts or otherwise have a Link Material Adverse
Effect.
Section
2.11 Filings, Consents and
Approvals. Link is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other foreign, federal, state, local or other
governmental authority or other person or entity in connection with the
execution, delivery and performance by Link of this Agreement, the Purchase
Agreement or any document or instrument contemplated hereby or thereby, except
as expressly contemplated herein or in the Purchase Agreement.
Section
2.12 Compliance With Laws and
Regulations. To the best of its knowledge, Link has complied
with all applicable statutes and regulations of any federal, state, or other
applicable governmental entity or agency thereof. This compliance
includes, but is not limited to, the filing of all reports to date with federal
and state securities authorities.
Section
2.13 Approval of
Agreements. The Board of Directors and the holders of at least
a majority of the issued and outstanding voting stock of Link have duly
authorized: (i) the execution and delivery of this Agreement by Link and the
transactions contemplated hereby and (ii) the execution and delivery of Purchase
Agreement, the Notes, the Warrants and all documents and instruments called for
under the Purchase Agreement by Link and the transactions contemplated each of
the aforesaid agreements and instruments.
Section
2.14 Material Transactions or
Affiliations. Except as disclosed in the Link SEC Reports or
on Schedule
2.14 to the Link Schedules, there exists no contract, agreement or
arrangement between Link and any predecessor and any person or entity who was at
the time of such contract, agreement or arrangement an officer, director, or
person owning of record or known by Link to own beneficially, 5% or more of the
issued and outstanding Common Stock of Link and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 5%
stockholders of Link has, or has had since inception of Link, any known
interest, direct or indirect, in any such transaction with Link which was
material to the business of Link. Link has no commitment, whether
written or oral, to lend any funds to, borrow any money from, or enter into any
other transaction with, any such affiliated person.
10
Section
2.15 Bank Accounts; Power of
Attorney. Set forth on Schedule 2.15 to the
Link Schedules is a true and complete list of: (a) all accounts with banks,
money market mutual funds or securities or other financial institutions
maintained by Link within the past twelve (12) months, the account numbers
thereof, and all persons authorized to sign or act on behalf of Link, (b) all
safe deposit boxes and other similar custodial arrangements maintained by Link
within the past twelve (12) months, (c) the check ledger for the last 12 months,
and (d) the names of all persons holding powers of attorney from Link or who are
otherwise authorized to act on behalf of Link with respect to any matter, other
than its officers and directors, and a summary of the terms of such powers or
authorizations.
Section
2.16 Valid
Obligation. This Agreement and the Purchase Agreement and all
agreements and other documents executed by Link in connection herewith and
therewith constitute the valid and binding obligation of Link, enforceable in
accordance with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
Section
2.17 Title to
Property. Link does not own or lease any real property or
personal property. There are no options or other contracts under
which Link has a right or obligation to acquire or lease any interest in real
property or personal property.
Section
2.18 Questionable
Payments. Neither
Link nor, to Link’s knowledge, any of its current or former stockholders,
directors, officers, employees, agents or other persons or entities acting on
behalf of Link, has on behalf of Link or in connection with Link’s business: (a)
used any corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity; (b) made any direct or
indirect unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or unrecorded fund
of corporate monies or other assets; (d) made any false or fictitious entries on
the books and records of Link; or (e) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment of any
nature.
Section
2.19 Solvency. Link
has not: (a) made a general assignment for the benefit of creditors; (b) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by its creditors; (c) suffered the appointment of a receiver to take
possession of all, or substantially all, of its assets; (d) suffered the
attachment or other judicial seizure of all, or substantially all, of its
assets; (e) admitted in writing its inability to pay its debts as they come due;
or (f) made an offer of settlement, extension or composition to its creditors
generally.
11
Section
2.20 OFAC. None
of Link nor, to the knowledge of Link, any director, officer, agent, employee,
affiliate or person acting on behalf of Link, is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and Link has not
heretofore engaged in any transaction to lend, contribute or otherwise make
available it funds or the funds of any joint venture partner or other person or
entity towards any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or
any other country sanctioned by OFAC or for the purpose of financing the
activities of any person or entity currently subject to any U.S. sanctions
administered by OFAC.
Section
2.21 Intellectual
Property. Link does not own, license or otherwise have any
right, title or interest in any intellectual property.
Section
2.22 Employees; Consultants,
etc.. Except as disclosed in the Link SEC Reports, Link has no
employees, officers, directors, agents or consultants. Link maintains
no employee benefit plans or programs of any kind or nature.
Section
2.23 Insurance. Link
does not hold or maintain, nor is Link obligated to hold or maintain, any
insurance on behalf for itself or its assets or for any officer, director,
employee or stockholder of Link.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
CHANCE HIGH SHAREHOLDERS
As an inducement to Link, each Chance
High Shareholder, severally but not jointly, hereby represent and warrant to
Link as follows.
Section
3.01 Chance High
Shares. The Chance High Shares represent 100% of the issued
and outstanding capital stock of Chance High. Such Chance High
Shareholder is the record and beneficial owner, and has good title to, the
Chance High Shares appearing next to such Chance High Shareholder’s name on
Schedule A
hereto. Such Chance High Shareholder has the right and authority to
sell and deliver its Chance High Shares, free and clear of all liens, claims,
charges, encumbrances, pledges, mortgages, security interests, options, rights
to acquire, proxies, voting trusts or similar agreements, restrictions on
transfer or adverse claims of any nature whatsoever, except as disclosed in the
Memorandum. Upon delivery of any certificate or certificates duly
assigned, representing the Chance High Shares as herein contemplated and/or upon
registering of Link as the new owner of the Chance High Shares in the share
register of Chance High, Link will receive good title to the Chance High Shares
owned by such Chance High Shareholder.
Section
3.02 Power and Authority.
Such Chance High Shareholder has the legal power, capacity and authority to
execute and deliver this Agreement to consummate the transactions contemplated
by this Agreement, and to perform his, her or its obligations under this
Agreement. This Agreement constitutes a legal, valid and binding
obligation of such Chance High Shareholder, enforceable against such Chance High
Shareholder in accordance with the terms hereof, except as may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought..
12
Section
3.03 No
Conflicts. The execution and delivery of this Agreement by
such Chance High Shareholder and the performance by such Chance High Shareholder
of its obligations hereunder in accordance with the terms hereof: (a) will not
require the consent of any third party or governmental entity under any laws;
(b) will not violate any laws applicable to such Chance High Shareholder and (c)
will not violate or breach any contractual obligation to which such Chance High
Shareholder is a party.
Section
3.04 Purchase Entirely for Own
Account. The Exchange Shares (as defined in Section 4.01
herein) proposed to be acquired by such Chance High Shareholder pursuant to the
terms hereof will be acquired for investment for such Chance High Shareholder’s
own account, and not with a view to the resale or distribution of any part
thereof.
Section
3.05 Acquisition of Exchange
Shares for Investment.
(a) Such
Chance High Shareholder is acquiring the Exchange Shares for investment purposes
and for such Chance High Shareholder’s own account and not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and such Chance High Shareholder has no present intention of selling, granting
any participation in, or otherwise distributing the same. Such Chance
High Shareholder further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Exchange Shares.
(b) Such
Chance High Shareholder represents and warrants that it: (i) can bear the
economic risk of his respective investments, and (ii) possesses such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the investment in Link and its
securities.
(c) Such
Chance High Shareholder is not a “U.S. Person” as defined in Rule 902(k) of
Regulation S of the Securities Act (“Regulation S”) and understands
that the Exchange Shares are not registered under the Securities Act and that
the issuance thereof to such Chance High Shareholder is intended to be exempt
from registration under the Securities Act pursuant to Regulation
S. Such Chance High Shareholder has no intention of becoming a U.S.
Person. At the time of the origination of contact concerning this
Agreement and the date of the execution and delivery of this Agreement, such
Chance High Shareholder was outside of the United States.
(d) Such
Chance High Shareholder acknowledges that neither the SEC, nor the securities
regulatory body of any state or other jurisdiction, has received, considered or
passed upon the accuracy or adequacy of the information and representations made
in this Agreement.
(e) Such
Chance High Shareholder understands that the Exchange Shares may not be sold,
transferred, or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Exchange Shares or any available exemption
from registration under the Securities Act, the Exchange Shares may have to be
held indefinitely.
13
ARTICLE
IV
PLAN
OF EXCHANGE
Section
4.01 The
Exchange.
(a) On
the terms and subject to the conditions set forth in this Agreement, on the
Closing Date (as defined in Section 4.03), each such Chance High Shareholder
shall assign, transfer and deliver, free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature, or
description, all of the Chance High Shares owned by such Chance High Shareholder
to Link, with the objective of such Exchange being the acquisition by Link of
100% of the issued and outstanding shares of capital stock of Chance
High.
(b) In
consideration of the transfer of the Chance High Shares to Link by the Chance
High Shareholders, Link shall issue to the Chance High Shareholder an aggregate
of 13,162,500 newly issued shares of Common Stock (the “Exchange Shares”), in the
amounts set forth on Schedule A hereto,
representing in the aggregate 81% of the issued and outstanding shares of Common
Stock prior to the consummation of the transaction contemplated by the Purchase
Agreement.
(c) At
the Closing Date, each Chance High Shareholder shall, on surrender of its
certificate or certificates representing the Chance High Shares owned by such
Chance High Shareholder to Link or its registrar or transfer agent, be entitled
to receive the Exchange Shares.
Section
4.02 Closing. The
closing of the transactions contemplated by this Agreement (the “Closing,” and the date of the
Closing, the “Closing
Date”) shall occur and shall be deemed to be effective immediately prior
to the transactions contemplated by the Purchase Agreement. Such
Closing shall take place at a mutually agreeable time and place, and be
conditioned upon all of the conditions to closing set forth in the Purchase
Agreement being met.
Section
4.03 Closing
Events. At the Closing, Link, Chance High and the Chance High
Shareholders shall execute, acknowledge, and deliver (or shall ensure to be
executed, acknowledged, and delivered), any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, rulings or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby.
Section
4.04 Termination. This
Agreement may be terminated by the parties only in the event that the parties do
not meet the conditions precedent set forth in Articles VI and
VII. If this Agreement is terminated pursuant to this section, this
Agreement shall be of no further force or effect, and no obligation, right or
liability shall arise hereunder.
ARTICLE
V
OTHER
AGREEMENTS AND COVENANTS
Section
5.01 Legends. Each
Chance High Shareholder acknowledges and agrees that each certificate
representing the Exchange Shares shall be endorsed with the following legends,
in addition to any other legend required to be placed thereon by applicable
federal or state securities laws:
14
“THE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”))
AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.”
“TRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
Section
5.02 Delivery of Books and
Records. At the Closing, Link shall deliver to the Chance High
Shareholders or their representatives the originals of the corporate minute
books, books of account, contracts, records, and all other books or documents of
Link which is now in the possession of Link or its representatives.
Section
5.03 Third Party Consents and
Certificates. Link and the Chance High Shareholder agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
Section
5.04 Director and
Officer. Concurrently with the Closing: (i) Xxxxxxx Xxxxxxx
and any other officer, director or employee of Link shall tender their
resignations, effective immediately, and (ii) Link shall appoint Hongwei Qu as
the Chief Executive Officer and sole director of Link.
Section
5.05 Sales of Securities Under
Rule 144, If Applicable.
(a) Link
will use its best efforts to at all times satisfy the current public information
requirements of Rule 144 promulgated under the Securities Act so that its
shareholders can sell restricted securities that have been held for the
applicable restricted period as required by Rule 144 as it is from time to time
amended.
(b) Upon
being informed in writing by any person holding restricted stock of Link that
such person intends to sell any shares under rule 144 promulgated under the
Securities Act (including any rule adopted in substitution or replacement
thereof), Link will certify in writing to such person that it is compliance with
Rule 144 current public information requirement to enable such person to sell
such person’s restricted stock under Rule 144, as may be applicable under the
circumstances.
15
(c) If
any certificate representing any such restricted stock is presented to Link’s
transfer agent for registration or transfer in connection with any sales
theretofore made under Rule 144, provided such certificate is duly endorsed for
transfer by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is accompanied
by a legal opinion that such transfer has complied with the requirements of Rule
144, as the case may be, Link will promptly instruct its transfer agent to
register such transfer and to issue one or more new certificates representing
such shares to the transferee and, if appropriate under the provisions of Rule
144, as the case may be, free of any stop transfer order or restrictive
legend.
Section
5.06 Payment of
Liabilities. Recognizing the need to extinguish all existing
liabilities of Link prior to the Exchange, the Chance High Shareholders have
indicated they will not enter into this Agreement unless Link has arranged for
the payment and discharge of all of Link’s liabilities, including all of Link’s
accounts payable and any outstanding legal fees incurred prior to the Closing
Date. Accordingly, Link has agreed to arrange for the payment and
discharge of all such liabilities.
Section
5.07 Assistance with Post-Closing
SEC Reports and Inquiries Upon the reasonable request of the Chance
High Shareholders, after the Closing Date, Link shall cause Xxxxxxx Xxxxxxx to
use his reasonable best efforts to provide such information available to him,
including information, filings, reports, financial statements or other
circumstances of Link occurring, reported or filed prior to the Closing, as may
be necessary or required by Link for the preparation of the reports that Link is
required to file after Closing with the SEC to remain in compliance and current
with its reporting requirements under the Exchange Act.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF LINK
The
obligations of Link under this Agreement are subject to the satisfaction, at or
before the Closing Date, of the following conditions:
Section
6.01 Accuracy of Representations
and Performance of Covenants. The representations and
warranties made by Chance High and the Chance High Shareholders in this
Agreement were true when made and shall be true at the Closing
Date. Chance High and the Chance High Shareholders shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by them prior to or at the
Closing.
Section
6.02 Officer’s
Certificate. Link shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized officer of Chance High to
the effect that no litigation, proceeding, investigation, or inquiry is pending,
or to the best knowledge of Chance High threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or, to the extent not disclosed in the CH Schedules, which might
result in any material adverse change in any of the assets, properties,
business, or operations of the Group.
Section
6.03 Good
Standing. Link shall have received a certificate of good
standing from The Registrar of Corporate Affairs of the British Virgin Islands,
dated as of no less than fifteen (15) business days prior the Closing Date,
certifying that Chance High is in good standing as a company in the British
Virgin Islands.
16
Section
6.04 No Governmental
Prohibition. No order, statute, rule, regulation, executive
order, injunction, stay, decree, judgment or restraining order shall have been
enacted, entered, promulgated or enforced by any court or governmental or
regulatory authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section
6.05 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of Chance High and the Group
after the Closing Date on the basis as presently operated shall have been
obtained.
ARTICLE
VII
CONDITIONS
PRECEDENT TO OBLIGATIONS OF
CHANCE
HIGH AND THE CHANCE HIGH SHAREHOLDERS
The
obligations of Chance High and the Chance High Shareholders under this Agreement
are subject to the satisfaction, at or before the Closing Date, of the following
conditions:
Section
7.01 Accuracy of Representations
and Performance of Covenants. The representations and
warranties made by Link in this Agreement were true when made and shall be true
as of the Closing Date with the same force and effect as if such representations
and warranties were made at and as of the Closing Date. Additionally,
Link shall have performed and complied with all covenants and conditions
required by this Agreement to be performed or complied with by
Link.
Section
7.02 Closing
Certificate. The Chance High Shareholders shall have been
furnished with certificates dated the Closing Date and signed by duly authorized
executive officers of Link, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of Link
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Link Schedules, by or against Link, which might
result in any material adverse change in any of the assets, properties or
operations of Link.
Section
7.03 Officer’s
Certificate. The Chance High Shareholders shall have been
furnished with certificates dated the Closing Date and signed by duly authorized
executive officers of Link, certifying that there are no existing liabilities as
of the Closing Date and that each representations and warranties of Link
contained in this Agreement shall be true and correct on and as of the Closing
Date.
Section
7.04 Secretary’s
Certificate. The Chance High Shareholders shall have been
furnished with a certificate dated the Closing Date and signed by the secretary
of Link, certifying to the Chance High Shareholders the resolutions adopted by
the Board of Directors of Link approving, as applicable, the transactions
contemplated by this Agreement and the issuance of the Exchange Shares,
certifying the current versions of its certificates of incorporation and bylaws
or other organizational documents and certifying as to the signatures and
authority of persons signing this Agreement and related documents on its
behalf.
17
Section
7.05 Good
Standing. The Chance High Shareholders shall have received a
certificate of good standing from the Secretary of State of Nevada, dated as of
a date within ten days prior to the Closing Date, certifying that Link is in
good standing as a corporation in the State of the Nevada and has filed all tax
returns required to have been filed by it to date and has paid all taxes
reported as due thereon.
Section
7.06 No Governmental
Prohibition. No order, statute, rule, regulation, executive
order, injunction, stay, decree, judgment or restraining order shall have been
enacted, entered, promulgated or enforced by any court or governmental or
regulatory authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section
7.07 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of Link after the Closing
Date on the basis as presently operated shall have been obtained.
Section
7.08 Existing
Shares. All 3,600,000 shares of Common Stock issued
outstanding as of September 30, 2009 shall have been validly cancelled prior to
the Closing Date.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Brokers. The
parties agree that, except as described in the Memorandum, there were no finders
or brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution or consummation of this Agreement. Link
and the Chance High Shareholders each agree to indemnify the other against any
claim by any third person other than those described in the Memorandum for any
commission, brokerage, or finder’s fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
Section
8.02 Governing Law;
Venue. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New
York. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
New York for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. EACH PARTY HERETO (INCLUDING ITS AFFILIATES, AGENTS,
OFFICERS, DIRECTORS AND EMPLOYEES) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
18
Section
8.03 Notices. All
notices, requests, demands and other communications provided in connection with
this Agreement shall be in writing and shall be deemed to have been duly given
at the time when hand delivered, delivered by express courier, or sent by
facsimile (with receipt confirmed by the sender’s transmitting device) in
accordance with the contact information provided below or such other contact
information as the parties may have duly provided by notice.
If
to Link:
000
Xxxxxx Xxxxx X.X.
Xxxxxxx,
Xxxxxxx
Xxxxxx
X0X 0X0
Attention:
Xxxxxxx Xxxxxxx
Fax Number: (000) 000-0000
with
a copy (which shall not constitute notice) to:
Synergen
Law Group
000
Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxx
Xxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Fax:
(000) 000-0000
If
to Chance High or the Chance High Shareholders, to:
x/x
Xxxxxx Xxxxx Pharmaceuticals Group Co. Ltd.
Xx. 0
Xxxxx Xxxx, Xxxxx Xxxxxxxx
Xxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxx
Attention:
Hongwei Qu
Fax
Number: x00-0000-0000000
19
with
a copy (which shall not constitute notice) to:
Ellenoff
Xxxxxxxx & Schole LLP
150 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
Fax
Number: (000) 000-0000
Any such
notice or communication shall be deemed to have been given: (i) upon receipt, if
personally delivered, (ii) on the day after dispatch, if sent by overnight
courier, (iii) upon dispatch, if transmitted by facsimile and receipt is
confirmed by printed receipt and (iv) three (3) days after mailing, if sent by
registered or certified mail.
Section
8.04 Confidentiality. Each
party hereto agrees with the other that, unless and until the transactions
contemplated by this Agreement have been consummated, it and its representatives
will hold in strict confidence all data and information obtained with respect to
another party or any subsidiary thereof from any representative, officer,
director or employee, or from any books or records or from personal inspection,
of such other party, and shall not use such data or information or disclose the
same to others, except: (i) to the extent such data or information is published,
is a matter of public knowledge, or is required by law to be published; or (ii)
to the extent that such data or information must be used or disclosed in order
to consummate the transactions contemplated by this Agreement. In the
event of the termination of this Agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
Section
8.05 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party’s schedules delivered pursuant to
this Agreement.
Section
8.06 No Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person or entity.
Section
8.07 Expenses. Whether
or not the Exchange is consummated, each of the parties hereto will bear their
own respective expenses, including legal, accounting and professional fees,
incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section
8.08 Entire
Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter thereof and supersedes all
prior agreements, understandings and negotiations, written or oral, with respect
to such subject matter.
Section
8.09 Survival;
Termination. The representations, warranties, and covenants of
the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for a period of two years.
20
Section
8.10 Counterparts. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
Section
8.01 Amendment or
Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is
intended.
Section
8.02 Best
Efforts. Subject to the terms and conditions herein provided,
each party shall use its best efforts to perform or fulfill all conditions and
obligations to be performed or fulfilled by it under this Agreement so that the
transactions contemplated hereby shall be consummated as soon as
practicable. Each party also agrees that it shall use its best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective this Agreement and the transactions
contemplated herein, both prior to and following the Closing.
[Signature
Page Follow]
21
IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, as of the date first-above
written.
LINK
RESOURCES, INC.
|
||
By:
|
/s/ Xxxxxxx Xxxxxxx
|
|
Name:
Xxxxxxx Xxxxxxx
|
||
Title:
President
|
||
CHANCE
HIGH INTERNATIONAL LIMITED
|
||
By:
|
/s/ Hongwei QU
|
|
Name:
Hongwei Qu
|
||
Title:
President
|
||
CHANCE
HIGH SHAREHOLDERS:
|
||
GLORY
PERIOD LIMITED
|
||
By:
|
/s/ Hongwei QU
|
|
Name:
Hongwei QU
|
||
Title:
President
|
||
/s/ Xxxx
Xxxxxxx
|
||
XXXX
Xxxxxxx
|
||
/s/ LIU
Shaocui
|
||
LIU
Shaocui
|
||
/s/ JIA Peicai
|
||
JIA
Peicai
|
||
/s/ ZHANG Xxxxxxx
|
||
XXXXX
Jingxin
|
22
/s/ XXXXX
Xxxxxx
|
|||
XXXXX
Xxxxxxx
|
|||
/s/ YU Bohai
|
|||
YU
Bohai
|
|||
/s/ AN
Zhongnan
|
|||
AN
Zhongnan
|
|||
/s/ XX Xxxxxxxxx
|
|||
XX
Xxxxxxxxx
|
|||
/s/ XXXX Xxx
|
|||
XXXX
Xxx
|
|||
/s/ LI Xxxxxx
|
|||
XX
Yanzhi
|
|||
/s/FU Wei
|
|||
FU
Wei
|
|||
/s/WANG
Zhizhen
|
|||
WANG
Zhizhen
|
|||
PORTSWEALTH
HOLDINGS LTD.
|
|||
By:
|
/s/Xxxxx Xxx
|
||
Name:
|
Xxxxx
Xxx
|
||
Title:
|
Manager
|
23
Schedule
A
Chance
High Shareholders
Name
|
Shares of Chance
High Held
|
Percentage of
Chance High
Shares Held
|
Shares of Link to
be Received Upon
Exchange
|
|||||||||
Glory
Period Limited
|
33,970 | 67.939 | % | 8,942,471 | ||||||||
XXXX
Xxxxxxx
|
2,469 | 4.94 | % | 650,228 | ||||||||
LIU
Shaocui
|
1,850 | 3.70 | % | 487,013 | ||||||||
JIA
Peicai
|
615 | 1.23 | % | 161,899 | ||||||||
ZHANG
Jingxin
|
615 | 1.23 | % | 161,899 | ||||||||
XXXXX
Xxxxxxx
|
615 | 1.23 | % | 161,899 | ||||||||
YU
Bohai
|
1,235 | 2.47 | % | 325,114 | ||||||||
AN
Zhongnan
|
615 | 1.23 | % | 161,899 | ||||||||
XX
Xxxxxxxxx
|
615 | 1.23 | % | 161,899 | ||||||||
XXXX
Xxx
|
308 | 0.617 | % | 81,213 | ||||||||
LI
Yanzhi
|
1,543 | 3.086 | % | 406,195 | ||||||||
FU
Wei
|
1,850 | 3.70 | % | 487,013 | ||||||||
WANG
Zhizhen
|
1,850 | 3.70 | % | 487,013 | ||||||||
Portswealth
Holdings Ltd.
|
1,850 | 3.70 | % | 486,745 | ||||||||
Total
|
50,000 | 100.000 | % | 13,162,500 |