SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this "Agreement") is dated
as of August 11, 2009 by and among Weikang Bio-Technology Group Company, Inc., a
Nevada corporation (the "Company"), ARC China,
Inc., a Shanghai corporation (the "Purchaser"), and for
purposes of Sections
2.1(b) and 2.1(c)
only, Corporate Stock Transfer, Inc. (the “Escrow
Agent”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act"), and
Rule 506 promulgated thereunder, the Company desires to issue and sell to the
Purchaser, and the Purchaser desires to purchase from the Company, up to an
aggregate of 4,768,877 shares of its newly-designated Series A Preferred Stock
and Warrants exercisable for up to 2,384,438 shares of its Common Stock for an
aggregate purchase price of up to $8,345,535 as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement: (a) capitalized terms
that are not otherwise defined herein have the meanings given to such terms in
the other Transaction Documents, and (b) the following terms have the meanings
indicated in this Section
1.1:
"Affiliate"
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a
Person, as such terms are used in and construed under Rule 144 under the
Securities Act.
"Business
Day" means any day other than a Saturday, Sunday or any day that is a
legal holiday or a day on which the New York Stock Exchange or commercial banks
located in New York, New York are permitted or required by law to
close.
"Certificate
of Designation" means the Certificate of Designation of the preferences,
rights, limitations, qualifications and restrictions of the Preferred Shares
attached hereto as Exhibit
A.
"Closing
Date" means the date on which a Closing occurs or is to occur as
described in Section
2.1.
"Common
Stock" means the common stock of the Company, par value $0.00001 per
Share, and any securities into which such common stock shall hereinafter have
been reclassified into.
"Exchange
Act" means the Securities Exchange Act of 1934, as
amended.
"Person"
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
“Preferred
Shares” means the
4,768,877 shares of Series A Preferred Stock of the Company offered hereby to
the Purchaser.
"Preferred
Stock" means the preferred stock of the Company, par value $0.01 per
share, and any securities into which such preferred stock shall hereinafter have
been reclassified into.
"Registration
Rights Agreement" means the Registration Rights Agreement attached hereto
as Exhibit
B dated as of the date hereof by among the Purchaser and the
Company.
“Securities”
means the Preferred Shares, Warrants and Warrant Shares.
"Securities
Act" means the Securities Act of 1933, as amended.
“Series A
Preferred Stock”
means the newly-designated Series A convertible preferred stock of the
Company, par value $0.01 per share.
“Share” means a share of the Common
Stock of the Company.
“Share
Certificate”
means any stock certificate representing some or all of the Preferred
Shares.
"Purchase
Price" has the meaning set forth in Section
2.1(b).
"Transaction
Documents" means this
Agreement, the Warrant Agreement, the Registration Rights Agreement and any
other documents or agreements executed in connection with the transactions
contemplated hereunder.
"Warrants"
means the 2,384,438 warrants to purchase Shares at $2.75 per Share for a
three-year period, pursuant to the terms of the Warrant Agreement attached
hereto as Exhibit
C.
"Warrant
Shares" means the 2,384,438 Shares underlying the Warrants.
ARTICLE
II
PURCHASE
AND SALE
2.1 Closing.
(a) Upon
the terms and subject to the conditions set forth herein, the Company agrees to
sell, and the Purchaser agrees to purchase, up to an aggregate of 4,768,877
Units at a purchase price of $1.75 per Unit, for an aggregate purchase price of
up to $8,345,535 (the "Purchase Price”).
Each "Unit"
shall consist of (i) one Preferred Share and (ii) one-half Warrant to purchase
one Share of Common Stock at an exercise price of $2.75 per Share. For purposes
of clarity, the Purchaser shall receive one full Warrant for every two Units
purchased. The Purchaser must subscribe for Units in multiples of
two.
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(b) Subject
to the satisfaction or waiver of the conditions set forth in Section
2.2, the Purchaser may purchase up to an aggregate of 4,768,877 Units
pursuant to one or more closings (each, a "Closing"), on such
dates as determined by the Purchaser and upon three days notice to the Company,
from the date hereof until September 15, 2009. At each Closing, the Purchaser
shall deliver to the Escrow Agent the Purchase Price for the number of Units
being subscribed for via wire transfer in accordance with the wire instructions
set forth on Exhibit
D, and the Company shall deliver to the Purchaser a Share Certificate and
Warrants for the number of Units being subscribed for. Subject to the
satisfaction or waiver of the conditions set forth in Section
2.2, the Purchaser expects to close on up to $1,000,000 in Units on or
about August 15, 2009, and hopes to close upon additional Units up to an
aggregate of 4,768,877 Units on or before August 31, 2009, but no later than
September 15, 2009.
(c) The
Company agrees that an aggregate of $100,000 of the Purchase Price will be
retained by the Escrow Agent from the proceeds received in a second Closing (the
"IR Cash"),
which along with an aggregate of 700,000 Warrants (the "IR Warrants") may be
allocated and released to Investor Relations firms for marketing purposes at the
sole discretion of the Purchaser. In addition, the Purchaser hereby agrees that
it will escrow 3% of the Preferred Shares being purchased (the "IR Shares"), which
will be held in escrow for release to investor relations firms at the sole
discretion of the Purchaser. Upon the receipt of written instructions executed
by the Purchaser, the Escrow Agent will release all or any portion of the IR
Cash, the IR Warrants or the IR Shares as designated by the Purchaser in its
sole discretion. If any portion of the IR Cash, IR Warrants or IR Shares remain
in the escrow account after a period of 12 months from the date of this
Agreement, such IR Cash or IR Warrants, if any, shall be released to the
Company, and such IR Shares, if any, shall be released to the Purchaser, upon
receipt of written request from the Company or the Purchaser, as
applicable.
2.2 Conditions to the
Closing. Each Closing shall be subject to the following conditions and
deliveries:
(a) At
or immediately following each Closing, unless otherwise indicated below, the
Company shall deliver or cause to be delivered to the Purchaser the
following:
(i) the
Share Certificate representing the number of Preferred Shares purchased pursuant
to such Closing;
(ii) Warrant
Agreements duly executed by the Company representing the appropriate number of
Warrants issued to the Purchaser at such Closing; and
(ii) the
Transaction Documents duly executed by the Company.
(b) At
or prior to each Closing, the Purchaser shall deliver or cause to be
delivered:
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(i) to
the Escrow Agent, the Purchase Price for the number of Units being purchased
pursuant to such Closing; and
(ii) to
the Company, the Transaction Documents, duly executed by each
Purchaser.
(c) The
obligations of the Purchaser to consummate the transactions to be effected at
each Closing and to pay the portion of the Purchase Price for the Units being
purchased pursuant to such Closing are subject to the fulfillment or waiver, on
or before each such Closing, of each of the conditions set forth
below:
(i) the
Company shall have adopted and filed the Certificate of Designation with the
Secretary of State of Nevada;
(ii) the
Company shall have authorized the issuance of (x) the Preferred Shares having
the rights, restrictions, privileges and preferences as set forth in the
Certificate of Designation and (y) the Warrants;
(iii) all
of the representations and warranties made by the Company in this Agreement,
shall be accurate in all material respects as of the date of this Agreement and
as of the Closing Date, and all covenants made by the Company and obligations of
the Company shall have been performed and complied with in all material respects
as of the Closing Date;
(iv) there
shall not be any existing or threatened action, proceeding or order, nor any
other material adverse change or event, involving the Company or the Purchaser
and which, in the reasonable opinion of the Purchaser, may have the effect of
preventing, limiting or delaying the transactions contemplated under this
Agreement; and
(v)
the Purchaser shall be satisfied in its sole discretion with the results of its
due diligence investigation of the Company, including, but not limited to, with
respect to the legal organization and good standing of the Company.
(d) The
obligations of the Company to consummate the transactions to be effected at each
Closing and to issue the Preferred Shares and the Warrants being purchased are
subject to the fulfillment or waiver, on or before each such Closing, of each of
the conditions set forth below:
(i) the
Escrow Agent shall have received the portion of the Purchase Price for the Units
being purchased pursuant to such Closing;
(ii) all
of the representations and warranties made by the Purchaser in this Agreement
shall be accurate in all material respects as of the date of this Agreement and
as of the Closing Date, and all covenants made by the Purchaser and obligations
of the Purchaser shall have been performed and complied with in all
material respects as of the Closing Date; and
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(iii) there
shall not be any existing or threatened action, proceeding or order, nor any
other material adverse change or event, involving the Company or the Purchaser
and which, in the reasonable opinion of the Company, may have the effect of
preventing, limiting or delaying the transactions contemplated under this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. The Company hereby makes the representations
and warranties set forth below to the Purchaser.
(a) Organization and
Qualification. The Company is an entity duly incorporated, validly
existing and in good standing under the laws of the State of Nevada, with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. The Company is not in violation of
any of the provisions of its Articles of Incorporation or other organizational
or charter documents. The Company is duly qualified to do business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not, individually or in the aggregate: (i)
adversely affect the legality, validity or enforceability of any Transaction
Document, (ii) have or result in or be reasonably likely to have or result in a
material adverse effect on the results of operations, assets, prospects,
business or condition (financial or otherwise) of the Company taken as a whole,
or (iii) adversely impair the Company's ability to perform fully on a timely
basis its obligations under any of the Transaction Documents.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by each of the
Transaction Documents and otherwise to carry out its obligations hereunder or
thereunder. The execution and delivery of each of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated hereby
or thereby have been duly authorized by all necessary action on the part of the
Company and no further consent or action is required by the Company, its Board
of Directors or its stockholders. Each of the Transaction Documents has been (or
upon delivery will be) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally and general principles of equity.
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(c) Capitalization of the
Company. The entire authorized capital stock and other equity securities
of the Company consist of 100,000,000 Shares and 50,000,000 shares of Preferred
Stock. As of the date of this Agreement, there are 25,479,800 Shares issued and
outstanding, no shares of Preferred Stock issued and outstanding and no warrants
to purchase Shares of Common Stock issued and outstanding. On the date of (and
after giving effect to) the Closing (assuming all Units have been purchased),
there shall be no more than 25,479,800 Shares issued and outstanding, 4,768,877
shares of Preferred Stock and warrants to purchase an aggregate of 3,084,438
Shares of Common Stock issued and outstanding. Except as set forth in this Section
3.1(c), there is as of the date of this Agreement, and there shall be on
the date of the Closing, no outstanding options, warrants, subscriptions,
conversion rights, or other rights, agreements, or commitments obligating the
Company to issue any additional Shares, shares of Preferred Stock or any other
securities convertible into, exchangeable for, or evidencing the right to
subscribe for or acquire from the Company any Shares, shares of Preferred Stock
or other securities of the Company.
(d) Issuance of
Securities. The issuance of the Securities is duly authorized and is free
from all taxes, pre-emptive rights, liens and charges with respect to the
issuance thereof. The Securities, when issued, sold and delivered in accordance
with the terms of this Agreement will be duly and validly issued, fully paid and
nonassessable, and will be free of liens, taxes, encumbrances, preemptive
rights, rights of first refusal, restrictions on voting or restrictions on
transfer, other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws, and the Purchaser will be entitled
to all rights, privileges and preferences as set forth in the Certificate of
Designation in force as of the Closing Date. Upon conversion, the Preferred
Shares will convert into Shares entitled to the voting and other rights set
forth in the Articles of Incorporation. Upon exercise of the Warrants, the
Warrant Shares will be duly and validly issued, fully paid and nonassessable.
Assuming the accuracy of each of the representations and warranties set forth in
Section
3.2 of this Agreement, the offer and issuance by the Company of the
Preferred Shares and Warrants is exempt from registration under the Securities
Act.
(e) No General
Solicitation. Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf, including, without limitation, any Person
related to Purchaser, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer or
sale of the Preferred Shares and Warrants.
(f) No Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby do
not and will not: (i) conflict with or violate any provision of the Company’s
Articles of Incorporation, Bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not, individually or in the aggregate, have or result in a
material adverse effect on the Company.
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(g) SEC Filings. The
Company has filed with the Securities and Exchange Commission (the "SEC") all forms and
reports required to be filed by it in accordance with the Securities Act (in
both form and substance), and no such form or report contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
3.2 Representations and
Warranties of the Purchaser. The Purchaser hereby represents and warrants
to the Company as follows:
(a) Authority. This
Agreement has been duly executed by the Purchaser, and when delivered by the
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
(b) Investment
Representation. The Purchaser is acquiring the Preferred Shares and the
Warrants (and upon conversion of the Preferred Shares, the Shares, and upon
exercise of the Warrants, the Warrant Shares) as principal for its own account
and not with a view to or for distributing or reselling such Securities or any
part thereof, subject, however, to the Purchaser's right (subject to the
provisions of this Agreement) at all times to sell or otherwise dispose of all
or any part of such Securities pursuant to an effective registration statement
under the Securities Act or under an exemption from such registration and in
compliance with applicable federal and state securities laws. Nothing contained
herein shall be deemed a representation or warranty by the Purchaser to hold the
Securities for any period of time or limit the Purchaser’s right to sell the
Securities pursuant to the Registration Statement (as defined in the
Registration Rights Agreement) or otherwise in compliance with applicable
federal and state securities laws. The Purchaser is acquiring the Securities
hereunder in the ordinary course of its business. The Purchaser does not have
any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Securities.
(c) Purchaser Status. At
the time the Purchaser was offered the Securities, it was, and as of the date
hereof it is, and on each date on which it exercises any Warrants it will be, an
"accredited investor" as defined in Rule 501(a) under the Securities Act. The
Purchaser has not been formed solely for the purpose of acquiring the
Securities. The Purchaser is not a registered broker-dealer under Section 15 of
the Exchange Act.
(d) Experience of
Purchaser. The Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. The Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a
complete loss of such investment.
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(e) General Solicitation.
The Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any
newspaper, magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions. The Securities may only be disposed of in compliance with
state and federal securities laws. Until the Registration Statement (as defined
in the Registration Rights Agreement) becomes effective, and at any time that
the Registration Statement is not effective thereafter for any reason, the
Company shall take all steps necessary to enable the Purchaser to rely on Rule
144 promulgated under the Securities Act ("Rule 144") to sell
the Securities when Rule 144 is available to the Purchaser, including, but not
limited to, providing upon the request of the Purchaser a legal opinion at the
Company's expense and maintaining current information on file with the
SEC.
4.2 Indemnification of the
Purchaser. The Company shall indemnify, defend, and hold harmless, to the
full extent of the law, the Purchaser and its directors, officers, stockholders,
employees, Affiliates and agents from, against, and in respect of any and all
Losses (as defined below) asserted against, relating to, imposed upon, or
incurred by the Purchaser or its directors, officers, stockholders, employees,
Affiliates and agents by reason of, resulting from, based upon or arising out
of:
(a) a
breach by the Company of any representation or warranty of the Company contained
in or made pursuant to any Transaction Document; or
(b) a
breach by the Company of any covenant or agreement of the Company made in or
pursuant to any Transaction Document.
For the
purposes of this Agreement, the terms “Loss” and “Losses” mean any and all
demands, claims, actions, losses, damages, liabilities (including any direct or
indirect indebtedness, guaranty, obligation or responsibility), costs, and
expenses, including without limitation, interest, penalties, fines and
reasonable attorneys fees (but excluding any and all punitive damages, and
consequential costs, liabilities, losses, judgments, penalties, fines or
expenses).
4.3 Covenants of the
Company.
(a) SEC Filings. The
Company hereby covenants and agrees that it will file with the SEC on Form 8-K
an announcement that it has entered into this Agreement within one day of its
execution, and further covenants and agrees that it will file with the SEC
additional Form 8-K's disclosing each Closing upon Units purchased hereunder
within one Business Day of each such Closing.
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(b) Funding Heilongjiang
Transaction. The Company hereby acknowledges and agrees that its
wholly-owned subsidiary, Sinary Bio-Technology Holdings Group, Inc. ("Sinary"), has not
paid in full the purchase price of 57 million Renminbi (the "Purchase Price") in
connection with the acquisition of Heilongjiang Weikang Biotechnology Group Co.,
Ltd. ("Heilongjiang"), which
must be paid on or before June 30, 2010 (such period, including any further
extensions, the "Extension Period").
The Company hereby covenants that it will use its best efforts and all available
resources to pay, or cause Sinary to pay, the Purchase Price before the end of
the Extension Period, which payment may only be made with the approval of the
Purchaser.
ARTICLE
V
MISCELLANEOUS
5.1 Entire Agreement. The
Transaction Documents and the LOI, together with the exhibits and schedules
hereto and thereto, contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
5.2 Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile or email (if designated) prior to 5:00 p.m. (Los
Angeles local time) on a Business Day with electronic confirmation of delivery,
(b) the next Business Day after the date of transmission, if such notice or
communication is delivered via facsimile or email (if designated) on a day that
is not a Business Day or later than 5:00 p.m. (Los Angeles local time) on any
Business Day, (c) one Business Day following the date of overnight delivery, if
sent by U.S. nationally-recognized overnight courier service, or (d) upon actual
receipt by the party to whom such notice is required to be given (or actual
delivery to such person’s address of record). The addresses for such notices and
communications are those set forth on the signature pages hereof, or such other
address as may be designated in writing hereafter, in the same manner, by such
Person.
5.3 Amendments; Waivers.
No provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Purchaser
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
5.4 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
5.5 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and permitted assigns. The Company may not
assign or transfer its rights and obligations hereunder without the prior
written consent of the Purchaser.
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The
Purchaser may freely assign and transfer its rights and obligations hereunder,
including its right to purchase the Units, without the prior written consent of
the Company.
5.6 No Third-Party
Beneficiaries. This Agreement is intended solely for the benefit of the
parties hereto and their respective successors and permitted
assigns.
5.7 Governing Law; Venue; Waiver
of Jury Trial. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Nevada, 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 and any other
Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in Las Vegas,
Nevada. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in Las Vegas, Nevada for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of any of the Transaction Documents), 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 or inconvenient venue for such proceeding. Each
party 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.
The parties hereby waive all rights to a trial by jury. If any party shall
commence an action or proceeding to enforce any provisions of the Transaction
Documents, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
5.8 Survival. The
representations and warranties contained herein shall survive the Closings and
the delivery of the Securities for the applicable statue of limitations. The
covenants set forth in Section
4.3 and the indemnification provisions set forth in Section
4.2 shall survive for a period of one year past the termination of the
Extension Period.
5.9 Execution. 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) such document
with the same force and effect as if such facsimile signature page were an
original thereof.
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5.10 Severability. If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.11 Replacement of Certificates
or other Instruments. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested.
5.12 Remedies. In addition
to being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, the Purchaser and the Company will be entitled to
specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
5.13 Fees and Expenses.
Each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of
this Agreement. The Company shall pay all transfer agent fees, stamp taxes and
other taxes and duties levied in connection with the issuance of any Securities
including fees associated with filling the Registration Statement.
[Remainder
of This Page Intentionally Left Blank; Signature Page to
Follow]
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IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first set forth above.
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WEIKANG
BIO-TECHNOLOGY GROUP
COMPANY,
INC.
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By:
|
|
|
|
Name:
Xxx Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
With
respect to Sections 2.1(b) and 2.1(c)
only:
|
||
|
CORPORATE
STOCK TRANSFER, INC.
|
||
|
By:
|
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
President
|
||
12
PURCHASER
SIGNATURE PAGE TO
WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC.
IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement
to be duly executed by its authorized signatory as of the date first set forth
above.
|
Name
of Purchaser:
|
ARC China,
Inc.
|
|
Signature of Authorized
Signatory of Purchaser:
|
|
Name
of Authorized Signatory:
|
Xxxx X.
Xxxxxxx
|
|
Title
of Authorized Signatory:
|
Founder & Chief Executive
Officer
|
|
Email
Address:
|
xx@xxxxxxxxxxxxxxxxxxxxx.xxx
|
|
Telephone
Number:
|
(000)
000-0000
|
|
Facsimile
Number:
|
x00 (00) 0000
0000
|
Address
of Purchaser:
|
23 on the Bund
|
|
|
The Bank of China Building, 14th
Floor
|
|
|
00 Xxxxxxxxx Xxxx Xx. 0
Xxxx
|
|
|
Xxxxxxxx 000000, P.R. China
|
|
|
|
Today’s
Date: ____________________
|
Number
of Units Subscribed for (subscribed for in multiples of
two):
|
|
|
Total
Purchase Price (US $1.75 per Unit):
|
|
13
Exhibit
A
Certificate
of Designation
Attached
hereto.
Exhibit
B
Registration
Rights Agreement
Attached
hereto.
Exhibit
C
Warrant
Agreement
Attached
hereto.
Exhibit
D
Company
Wire Instructions
[To
be provided.]
