EXCHANGE AGREEMENT
EXHIBIT
10.1
This
EXCHANGE AGREEMENT, dated as of August 12, 2010 (the “Agreement”) by and among
TOP FLIGHT GAMEBIRDS, INC., a Delaware corporation (“Top Flight”), Global Pharma
Enterprise Group Limited (“Global Pharma”) and Xxx Xx Xxxx (“Xxxx”), the sole
shareholder of all the shares of common stock of Global Pharma.
WHEREAS,
Tsai owns 100% of the issued and outstanding shares of common stock, par value
$1 per share, of Global Pharma (the "GP Shares");
WHEREAS,
Tsai believes it is in her best interest to exchange the GP Shares for certain
restricted shares of common stock of Top Flight and Top Flight believes it is in
its best interests to acquire the GP Shares in exchange for its shares of common
stock, upon the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS,
it the intention of the parties that: (i) Top Flight shall acquire 100% of the
GP Shares in exchange solely for the restricted shares of Top Flight; (ii) said
exchange of shares of Top Flight for GP Shares shall not qualify as a
tax-free reorganization under Section 368(a)(1)(B) of the Internal Revenue Code
of 1986, as amended (the “Code”); and (iii) said exchange shall qualify as a
transaction in securities exempt from registration or qualification under the
Securities Act of 1933, as amended and in effect on the date of this Agreement
(the “Securities Act”).
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section
1.1 Agreement
to Exchange GP Shares for TF Shares. On the Closing Date (as hereinafter
defined) and upon the terms and subject to the conditions set forth in this
Agreement, Tsai shall sell, assign, transfer, convey and deliver the GP Shares
(representing 50,000 GP Shares, par value $1 per share or 100% of the issued and
outstanding GP Shares) to Top Flight, and Top Flight shall accept the GP Shares
from Tsai in exchange for the issuance to Tsai 1,800,000 restricted shares of
common stock of Top Flight (the “TF Shares”).
Section
1.2
Capitalization. On
the Closing Date, immediately before the transactions to be consummated pursuant
to this Agreement, Top Flight shall have authorized 100,000,000 shares of common
stock, par value $.001 per share, of which 26,000,000 shares shall be
issued and outstanding, all of which are duly authorized, validly issued and
fully paid.
Section
1.3 Closing. The closing
of the exchange to be made pursuant to this Agreement (the "Closing") shall take
place at 10:00 a.m. E.D.T. on the date of this Agreement and upon the conditions
to closing set forth in Articles V and VI have been satisfied or waived, or at
such other time and date as the parties hereto shall agree in writing (the
"Closing Date"), at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 00
Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000. At the Closing, Tsai shall deliver to Top Flight the stock
certificate(s) representing 100% of the GP Shares, duly endorsed in blank for
transfer or accompanied by appropriate stock powers duly executed in blank. In
full consideration and exchange for the GP Shares, Top Flight shall issue and
exchange with Tsai the TF Shares.
Section 1.4
Tax
Treatment. The exchange described herein is not intended to comply with
Section 368(a)(1)(B) of the Code, and all applicable regulations
thereunder.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF TOP FLIGHT
Top
Flight hereby represents, warrants and agrees as follows:
Section
2.1 Corporate
Organization
a. Top Flight
is a corporation duly organized, validly existing and in good standing under the
laws of Delaware, and has all requisite corporate power and authority to own its
properties and assets and to conduct its business as now conducted and is duly
qualified to do business in good standing in each jurisdiction in which the
nature of the business conducted by Top Flight or the ownership or leasing of
its properties makes such qualification and being in good standing necessary,
except where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of Top Flight (a "Top Flight
Material Adverse Effect");
b. Copies of the Articles of Incorporation
and By-laws of Top Flight, with all amendments thereto to the date hereof, have
been furnished by Top Flight to Tsai, and such copies are accurate and complete
as of the date hereof. The minute books of Top Flight are current as required by
law, contain the minutes of all meetings of the Board of Directors and
shareholders of Top Flight from its date of incorporation to the date of this
Agreement, and adequately reflect all material actions taken by the Board of
Directors and shareholders of Top Flight.
Section
2.2 Capitalization of Top
Flight. The authorized capital stock of Top Flight consists of
(a) 100,000,000 shares of common stock, par value $.001 per share, of which
26,000,000 shares are issued and outstanding, all of which are duly
authorized, validly issued and fully paid. As of the date of this Agreement
there are and as of the Closing Date, there will be, no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire any shares of capital
stock or any un-issued or treasury shares of capital stock of Top
Flight.
Section
2.3 Subsidiaries and Equity
Investments. Top Flight has no subsidiaries or equity interest in any
corporation, partnership or joint venture.
Section
2.4 Authorization
and Validity of Agreements. Top Flight has all corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Top Flight and the consummation by Top Flight
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action of Top Flight, and no other corporate proceedings on
the part of Top Flight are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.
Section 2.5 No Conflict
or Violation. The
execution, delivery and performance of this Agreement by Top Flight does not and
will not violate or conflict with any provision of its Articles of Incorporation
or By-laws, and does not and will not violate any provision of law, or any
order, judgment or decree of any court or other governmental or regulatory
authority, nor violate or result in a breach of or constitute (with due notice
or lapse of time or both) a default under, or give to any other entity any right
of termination, amendment, acceleration or cancellation of, any contract, lease,
loan agreement, mortgage, security agreement, trust indenture or other agreement
or instrument to which Top Flight is a party or by which it is bound or to which
any of their respective properties or assets is subject, nor will it result in
the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Top Flight, nor will it
result in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits to which Top Flight is bound.
Section
2.6 Consents and
Approvals. No consent, waiver, authorization or approval of any
governmental or regulatory authority, domestic or foreign, or of any other
person, firm or corporation, is required in connection with the execution and
delivery of this Agreement by Top Flight or the performance by Top Flight of its
obligations hereunder.
Section
2.7 Absence of
Certain Changes or Events.
Since its inception:
a. Top Flight has operated in the ordinary
course of business consistent with past practice and there has not been any
material adverse change in the assets, properties, business, operations,
prospects, net income or condition, financial or otherwise of Top Flight. As of
the date of this Agreement, Top Flight does not know or have reason to know of
any event, condition, circumstance or prospective development which threatens or
may threaten to have a material adverse effect on the assets, properties,
operations, prospects, net income or financial condition of Top
Flight;
b. there has not been any declaration,
setting aside or payment of dividends or distributions with respect to shares of
capital stock of Top Flight or any redemption, purchase or other acquisition of
any capital stock of Top Flight or any other of Top Flight’s
securities; and
c. there
has not been an increase in the compensation payable or to become payable to any
director or officer of Top Flight.
Section
2.8 Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of Top Flight in connection with the
transactions contemplated by this Agreement, when taken together, do not contain
any untrue statement of a material fact or omit any material fact necessary in
order to make the statements contained herein and/or therein not
misleading.
Section
2.9 Survival. Each of the representations and
warranties set forth in this Article II shall be deemed represented and made by
Top Flight at the Closing as if made at such time and shall survive the Closing
for a period terminating on the second anniversary of the date of this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF GLOBAL PHARM AND TSAI
Global
Pharam and Tsai, jointly and severally, represent, warrant and agree as
follows:
Section
3.1 Corporate
Organization.
a. Global
Pharma is a newly-formed corporation. It is duly organized, validly existing and
in good standing under the laws of the British Virgin Islands and has all
requisite corporate power and authority to own its properties and assets and to
conduct its business as now conducted and is duly qualified to do business in
good standing in each jurisdiction in where the nature of the business conducted
by Global Pharma or the ownership or leasing of its properties makes such
qualification and being in good standing necessary, except where the failure to
be so qualified and in good standing will not have a material adverse effect on
the business, operations, properties, assets, condition or results of operation
of Global Pharma (a "GP Material Adverse Effect").
b. Copies
of the Certificate of Incorporation and By-laws of Global Pharma, with all
amendments thereto to the date hereof, have been furnished to Top Flight, and
such copies are accurate and complete as of the date hereof. The minute books of
Global Pharma are current as required by law, contain the minutes of all
meetings of the Board of Directors and shareholders of Global Pharma, and
committees of the Board of Directors of Global Pharma from the date of
incorporation to the date of this Agreement, and adequately reflect all material
actions taken by the Board of Directors, shareholders and committees of the
Board of Directors of Global Pharma.
Section
3.2 Capitalization
of Global Pharma; Title to the GPShares. On the Closing Date, immediately
before the transactions to be consummated pursuant to this Agreement, Global
Pharm shall have authorized Fifty Thousand (50,000) GP Shares, of which 50,000
GP Shares will be issued and outstanding. The GP Shares are the sole outstanding
shares of capital stock of Global Pharma, and there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire any shares of capital
stock or any un-issued or treasury shares of capital stock of Global
Pharma.
Section
3.3 Subsidiaries and Equity
Investments; Assets. As of the date hereof and on the Closing Date,
except for Bionminal BioPharma, Inc. and Wisdom Fortune Medicine Holding Group
Limited, two wholly-owned Hong Kong-incorporated companies, and Anhui
Xuelingxian Pharmaceutical Co., Ltd., Tonghua Tongdetang Pharmaceutical and
Medicinal Materials Co., Ltd., and Shandong Global Pharm Co., Ltd., three
PRC-incorporated companies, Global Pharm does not and will not directly or
indirectly, own any shares of capital stock or any other equity interest in any
entity or any right to acquire any shares or other equity interest in any entity
and Global Pharma does not and will not have any assets or
liabilities.
Section
3.4 Authorization and Validity
of Agreements. Global Pharma has all corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Global Pharma and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no other corporate proceedings on the part of Global Pharma are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
Tsai has approved this Agreement on behalf of Global Pharma and no other
stockholder approvals are required to consummate the transactions contemplated
hereby.
Section
3.5 No Conflict
or Violation. The
execution, delivery and performance of this Agreement by Global Pharma and Tsai
do not and will not violate or conflict with any provision of the constituent
documents of Global Pharma, and do not and will not violate any provision of
law, or any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate, result in a breach of or constitute (with due
notice or lapse of time or both) a default under or give to any other entity any
right of termination, amendment, acceleration or cancellation of any contract,
lease, loan agreement, mortgage, security agreement, trust indenture or other
agreement or instrument to which Global Pharma or Tsai is a party or by which
it/her is bound or to which any of its/her respective properties or assets is
subject, nor result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
Global Pharma or Tsai, nor result in the cancellation, modification, revocation
or suspension of any of the licenses, franchises, permits to which Global Pharma
or Tsai is bound.
Section
3.6 Investment
Representations. (a) The
TF Shares will be acquired hereunder solely for the account of Tsai, for
investment, and not with a view to the resale or distribution thereof. Tsai
understands and is able to bear any economic risks associated with her
investment in the TF Shares. Tsai has had full access to all the
information Tsai considers necessary or appropriate to make an
informed investment decision with respect to the TF Shares to be acquired under
this Agreement. Tsai further has had an opportunity to ask questions and receive
answers from Top Flight’s directors regarding Top Flight and to obtain
additional information (to the extent Top Flight’s directors possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Tsai or to which Tsai had
access. Tsai (as such term is hereinafter defined) is an “accredited investor”
(as such term is defined in Rule 501(a) of Regulation D promulgated by the
Securities and Exchange Commission under the Securities
Act).
(b) No
offer to enter into this Agreement has been made by Top Flight to Tsai in the
United States. At the times of the offer and execution of this Agreement, Tsai
was domiciled and resided outside the United States. Tsai, nor any affiliate of
Tsai, nor any person acting on behalf of Tsai or on behalf of any such
affiliate, has engaged or will engage in any activity undertaken for the purpose
of, or that reasonably could be expected to have the effect of, conditioning the
markets in the United States for the TF Shares, including, but not limited to,
effecting any sale or short sale of securities through Tsai or any affiliate
of Tsai prior to the expiration of any restricted period contained in
Regulation S promulgated under the Securities Act (any such activity being
defined herein as a “Directed Selling Effort”). To the best knowledge of Tsai,
this Agreement and the transactions contemplated herein are not part of a plan
or scheme to evade the registration provisions of the Securities Act, and the TF
Shares are being acquired for investment purposes by Tsai. Tsai agrees that all
offers and sales of the TF Shares from the date hereof and through the
expiration of the any restricted period set forth in Rule 903 of Regulation S
(as the same may be amended from time to time hereafter) shall not be made to
U.S. Persons or for the account or benefit of U.S. Persons and shall otherwise
be made in compliance with the provisions of Regulation S and any other
applicable provisions of the Securities Act. Neither Tsai nor the
representatives of Tsai have conducted any Directed Selling Effort as
that term is used and defined in Rule 902 of Regulation S and Tsai will not
engage in any such Directed Selling Effort within the United States through the
expiration of any restricted period set forth in Rule 903 of Regulation
S.
Section
3.7 Brokers’ Fees. Neither Global Pharma
nor Tsai has any liability to pay any fees or commissions or other consideration
to any broker, finder, or agent with respect to the transactions contemplated by
this Agreement.
Section
3.8 Disclosure. This
Agreement, the schedules hereto and any certificate attached hereto or delivered
in accordance with the terms hereby by or on behalf of Global Pharma or Tsai in
connection with the transactions contemplated by this Agreement, when taken
together, do not contain any untrue statement of a material fact or omit any
material fact necessary in order to make the statements contained herein and/or
therein not misleading.
Section
3.8 Survival. Each of the representations and
warranties set forth in this Article III shall be deemed represented and made by
Global Pharma and Tsai at the Closing as if made at such time and shall survive
the Closing for a period terminating on the second anniversary of the date of
this Agreement.
ARTICLE
IV
COVENANTS
Section
4.1 Certain
Changes and Conduct of Business.
a. From and after the date of this
Agreement and until the Closing Date, Top Flight shall conduct its business
solely in the ordinary course consistent with past practices and, in a manner
consistent with all representations, warranties or covenants of Top Flight, and
without the prior written consent of Global Pharma will not, except as required
or permitted pursuant to the terms hereof:
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i.
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make any material change in the
conduct of its businesses and/or operations or enter into any transaction
other than in the ordinary course of business consistent with past
practices;
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ii.
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make any change in its Articles
of Incorporation or By-laws; issue any additional shares of capital stock
or equity securities or grant any option, warrant or right to acquire any
capital stock or equity securities or issue any security convertible into
or exchangeable for its capital stock or alter in any material term of any
of its outstanding securities or make any change in its outstanding shares
of capital stock or its capitalization, whether by reason of a
reclassification, recapitalization, stock split or combination, exchange
or readjustment of shares, stock dividend or
otherwise;
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iii.
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A.
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incur, assume or guarantee any
indebtedness for borrowed money, issue any notes, bonds, debentures or
other corporate securities or grant any option, warrant or right to
purchase any thereof, except pursuant to transactions in the ordinary
course of business consistent with past practices;
or
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B.
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issue any securities convertible
or exchangeable for debt or equity securities of Top
Flight;
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iv.
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make any sale, assignment,
transfer, abandonment or other conveyance of any of its assets or any part
thereof, except pursuant to transactions in the ordinary course of
business consistent with past
practice;
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v.
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subject any of its assets, or any
part thereof, to any lien or suffer such to be imposed other than such
liens as may arise in the ordinary course of business consistent with past
practices by operation of law which will not have an TF Material Adverse
Effect;
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vi.
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acquire any assets, raw materials
or properties, or enter into any other transaction, other than in the
ordinary course of business consistent with past
practices;
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vii.
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enter into any new (or amend any
existing) employee benefit plan, program or arrangement or any new (or
amend any existing) employment, severance or consulting agreement, grant
any general increase in the compensation of officers or employees
(including any such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment) or grant any increase in the
compensation payable or to become payable to any employee, except in
accordance with pre-existing contractual provisions or consistent with
past practices;
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viii.
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make or commit to make any
material capital
expenditures;
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ix.
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pay, loan or advance any amount
to, or sell, transfer or lease any properties or assets to, or enter into
any agreement or arrangement with, any of its
affiliates;
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x.
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guarantee any indebtedness for
borrowed money or any other obligation of any other
person;
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xi.
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fail to keep in full force and
effect insurance comparable in amount and scope to coverage maintained by
it (or on behalf of it) on the date
hereof;
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xii.
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take any other action that would
cause any of the representations and warranties made by it in this
Agreement not to remain true and correct in all material
aspect;
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xiii.
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make any material loan, advance
or capital contribution to or investment in any
person;
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xiv.
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make any material change in any
method of accounting or accounting principle, method, estimate or
practice;
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xv.
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settle, release or forgive any
claim or litigation or waive any
right;
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xvi.
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commit itself to do any of the
foregoing.
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b.
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From
and after the date of this Agreement, Global Pharma
will:
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1.
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continue to maintain, in all
material respects, its properties in accordance with present practices in
a condition suitable for its current
use;
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2.
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file, when due or required,
federal, state, foreign and other tax returns and other reports required
to be filed and pay when due all taxes, assessments, fees and other
charges lawfully levied or assessed against it, unless the validity
thereof is contested in good faith and by appropriate proceedings
diligently conducted;
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3.
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continue to conduct its business
in the ordinary course consistent with past
practices;
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4.
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keep its books of account,
records and files in the ordinary course and in accordance with existing
practices; and
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5.
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continue to maintain existing
business relationships with
suppliers.
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Section 4.2
Access to
Properties and Records. Global Pharma shall afford Top
Flight’s accountants, counsel and authorized representatives, and Top flight
shall afford to Global Pharma’s accountants, counsel and authorized
representatives full access during normal business hours throughout the period
prior to the Closing Date (or the earlier termination of this Agreement) to all
of such parties’ properties, books, contracts, commitments and records and,
during such period, shall furnish promptly to the requesting party all other
information concerning the other party's business, properties and personnel as
the requesting party may reasonably request, provided that no investigation or
receipt of information pursuant to this Section 4.2 shall affect any
representation or warranty of or the conditions to the obligations of any
party.
Section
4.3 Negotiations. From and after the date hereof until
the earlier of the Closing or the termination of this Agreement, no party to
this Agreement nor its officers or directors (subject to such director's
fiduciary duties) nor anyone acting on behalf of any party or other persons
shall, directly or indirectly, encourage, solicit, engage in discussions or
negotiations with, or provide any information to, any person, firm, or other
entity or group concerning any merger, sale of substantial assets, purchase or
sale of shares of capital stock or similar transaction involving any party. A
party shall promptly communicate to any other party any inquiries or
communications concerning any such transaction which they may receive or of
which they may become aware of.
Section
4.4 Consents
and Approvals. The parties
shall:
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i.
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use their reasonable commercial
efforts to obtain all necessary consents, waivers, authorizations and
approvals of all governmental and regulatory authorities, domestic and
foreign, and of all other persons, firms or corporations required in
connection with the execution, delivery and performance by them of this
Agreement; and
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ii.
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diligently assist and cooperate
with each party in preparing and filing all documents required to be
submitted by a party to any governmental or regulatory authority, domestic
or foreign, in connection with such transactions and in obtaining any
governmental consents, waivers, authorizations or approvals which may be
required to be obtained connection in with such
transactions.
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Section
4.5 Public Announcement.
Unless otherwise required by applicable law, the parties hereto shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement and shall not issue any such press
release or make any such public statement prior to such
consultation.
Section
4.6 Stock Issuance. From
and after the date of this Agreement until the Closing Date, neither Top Flight
nor Global Pharma shall issue any additional shares of its capital
stock.
Section
4.7 Notwithstanding anything to the
contrary contained herein, it is herewith understood and agreed that both Top
Flight and Global Pharma may enter into and conclude agreements and/or financing
transactions as same relate to and/or are contemplated by any separate written
agreements either: (a) annexed hereto as exhibits; or (b) entered into by Top
Flight with Global Pharma executed by both parties subsequent to the date
hereof. These Agreements shall become, immediately upon execution, part of this
Agreement and subject to all warranties, representations and conditions
contained herein.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF GLOBAL PHARMA AND TSAI
The
obligations of Global Pharma and Tsai to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or before the
Closing Date, of the following conditions, any one or more of which may be
waived by both Global Pharma and Tsai in their sole discretion:
Section
5.1 Representations and
Warranties of Top Flight. All representations and warranties made by Top
Flight in this Agreement shall be true and correct on and as of the Closing Date
as if again made by Top Flight as of such date.
Section
5.2 Agreements and
Covenants. Top Flight shall have performed and complied in all material
respects to all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
Section
5.3 Consents
and Approvals. Consents,
waivers, authorizations and approvals of any governmental or regulatory
authority, domestic or foreign, and of any other person, firm or corporation,
required in connection with the execution, delivery and performance of this
Agreement shall be in full force and effect on the Closing
Date.
Section
5.4 No
Violation of Orders. No
preliminary or permanent injunction or other order issued by any court or
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
Top Flight shall be in effect; and no action or proceeding before any court or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section
5.5 Other
Closing Documents. Global
Pharma shall have received such other certificates, instruments and documents in
confirmation of the representations and warranties of Top Flight or in
furtherance of the transactions contemplated by this Agreement as Global Pharma
or its counsel may reasonably request.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF TOP FLIGHT
The
obligations of Top Flight to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by Top Flight in
its sole discretion:
Section
6.1 Representations and
Warranties of Global Pharma. All representations and warranties made by
Global Pharma in this Agreement shall be true and correct on and as of the
Closing Date as if again made by Global Pharma on and as of such
date.
Section
6.2 Agreements and
Covenants. Global Pharma shall have performed and complied in all
material respects to all agreements and covenants required by this Agreement to
be performed or complied with by it on or prior to the Closing
Date.
Section
6.3 Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and shall be in
full force and effect on the Closing Date.
Section
6.4 No
Violation of Orders. No
preliminary or permanent injunction or other order issued by any court or other
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, domestic or foreign, that
declares this Agreement invalid or unenforceable in any respect or which
prevents the consummation of the transactions contemplated hereby, or which
materially and adversely affects the assets, properties, operations, prospects,
net income or financial condition of Global Pharma, taken as a whole, shall be
in effect; and no action or proceeding before any court or government or
regulatory authority, domestic or foreign, shall have been instituted or
threatened by any government or governmental or regulatory authority, domestic
or foreign, or by any other person, or entity which seeks to prevent or delay
the consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
Section
6.5. Other
Closing Documents. Top
Flight shall have received such other certificates, instruments and documents in
confirmation of the representations and warranties of Global Pharma
or in furtherance of the transactions contemplated by this Agreement as Top
Flight or its counsel may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION
7.1 Methods of
Termination. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time before the Closing:
a. By the mutual written consent of Tsai,
Global Pharma and Top Flight;
b.
ByTop Flight, upon a material
breach of any representation, warranty, covenant or agreement on the part of
Global Pharma or Tsai set forth in this Agreement, or if any representation or
warranty of Global Pharma or Tsai shall become untrue, in either case such that
any of the conditions set forth in Article VI hereof would not be satisfied (an
"GP Breach"), and such breach shall, if capable of cure, has not been cured
within ten (10) days after receipt by the party in breach of a notice from the
non-breaching party setting forth in detail the nature of such
breach;
c.
By Global Pharma , upon a
material breach of any representation, warranty, covenant or agreement on the
part of Top Flight set forth in this Agreement, or, if any representation or
warranty of Top Flight shall become untrue, in either case such that any of the
conditions set forth in Article V hereof would not be satisfied (a
"TF Breach"), and such breach shall, if capable of cure, not have
been cured within ten (10) days after receipt by the party in breach of a
written notice from the non-breaching party setting forth in detail the nature
of such breach;
d.
By either Top Flight or Global
Pharma, if the Closing shall not have consummated before ninety (90) days after
the date hereof; provided, however, that this Agreement may be extended by
written notice of either Top Flight or Global Pharma, if the Closing shall not
have been consummated as a result of Top Flight or Global Pharma having failed
to receive all required regulatory approvals or consents with respect to this
transaction or as the result of the entering of an order as described in this
Agreement; and further provided, however, that the right to terminate this
Agreement under this Section 7.1(d) shall not be available to any party whose
failure to fulfill any obligations under this Agreement has been the cause of,
or resulted in, the failure of the Closing to occur on or before this
date.
e.
By either Global Pharma or Top
Flight if a court of competent jurisdiction or governmental, regulatory or
administrative agency or commission shall have issued an order, decree or ruling
or taken any other action (which order, decree or ruling the parties hereto
shall use its best efforts to lift), which permanently restrains, enjoins or
otherwise prohibits the transactions contemplated by this
Agreement.
Section
7.2
Procedure
Upon Termination. In the
event of termination and abandonment of this Agreement by Top Flight or Global
Pharma pursuant to Section 7.1, written notice thereof shall forthwith be given
to the other parties and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action. If this
Agreement is terminated as provided herein, no party to this Agreement shall
have any liability or further obligation to any other party to this Agreement;
provided, however, that no termination of this Agreement pursuant to this
Article VII shall relieve any party of liability for a breach of any provision
of this Agreement occurring before such termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section
8.1
Consistency
in Reporting. Each party
hereto agrees that if the characterization of any transaction contemplated in
this agreement or any ancillary or collateral transaction is challenged, each
party hereto will testify, affirm and ratify that the characterization
contemplated in such agreement was the characterization intended by the party;
provided, however, that nothing herein shall be construed as giving rise to any
obligation if the reporting position is determined to be incorrect by final
decision of a court of competent jurisdiction.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.1
Survival of
Provisions. The respective
representations, warranties, covenants and agreements of each of the parties to
this Agreement (except covenants and agreements which are expressly required to
be performed and are performed in full on or before the Closing Date) shall
survive the Closing Date and the consummation of the transactions contemplated
by this Agreement, subject to Sections 2.9, 3.8 and 8.2. In the event of a
breach of any of such representations, warranties or covenants, the party to
whom such representations, warranties or covenants have been made shall have all
rights and remedies for such breach available to it under the provisions of this
Agreement or otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
Section
9.2 Publicity. No party
shall cause the publication of any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby without the
consent of the other parties, unless a press release or announcement is required
by law. If any such announcement or other disclosure is required by law, the
disclosing party agrees to give the non-disclosing parties prior notice and an
opportunity to comment on the proposed disclosure.
Section
9.3 Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
Section 9.4
Fees and
Expenses. Except as otherwise expressly provided in this Agreement, all
legal and other fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees, costs or expenses.
Section 9.5
Notices.
All notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been given or made if in writing and
delivered personally or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following
addresses:
If to
Global Pharma or Tsai, to:
Room 2404
Xxx Xxxxx Xxxxx (Xxxxx X),
Xxx Xxx
Xxxxx,
Xxxxxxx,
Xxxx Xxxx
If to Top
Flight, to:
Top
Flight Gambirds, Inc.
25/F New
World Center,
No. 6009
Yitian Road,
Futian
District, Shenzhen,
People’s
Republic of China 518026
or to
such other persons or at such other addresses as shall be furnished by any party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change in
any of such addresses shall be effective insofar as notices under this Section
9.5 are concerned unless such changed address is located in the United States of
America and notice of such change shall have been given to such other party
hereto as provided in this Section 9.5
Section
9.6 Entire
Agreement. This Agreement,
together with the exhibits hereto, represents the entire agreement and
understanding of the parties with reference to the transactions set forth herein
and no representations or warranties have been made in connection with this
Agreement other than those expressly set forth herein or in the exhibits,
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section
9.7
Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible so as to be valid and
enforceable.
Section
9.8 Titles and Headings.
The Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section
9.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
Section
9.10 Convenience
of Forum; Consent to Jurisdiction. The parties to this Agreement, acting
for themselves and for their respective successors and assigns, without regard
to domicile, citizenship or residence, hereby expressly and irrevocably elect as
the sole judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of New York located in County of New
York, and/or the United States District Court for the Southern District of New
York, in respect of any matter arising under this Agreement. Service of process,
notices and demands of such courts may be made upon any party to this Agreement
by personal service at any place where it may be found or giving notice to such
party as provided in Section 9.5.
Section
9.11 Enforcement
of the Agreement. The
parties hereto agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereto, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section
9.12 Governing
Law. This Agreement shall
be governed by and interpreted and enforced in accordance with the laws of the
State of New York without giving effect to the choice of law provisions
thereof.
Section
9.13 Amendments
and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all
of the parties hereto.. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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By:
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/s/
Yunlu Yin
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Yunlu
Yin
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Title:
Chief Executive Officer
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GLOBAL
PHARMA ENTERPRISE GROUP LIMITED
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By:
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/s/
Xxx Xx Xxxx
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Xxx
Xx Xxxx
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Title:
Chief Executive Officer
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XXX
XX TSAI
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By:
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/s/
Xxx Xx Xxxx
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