SUBSCRIPTION AGREEMENT
EXHIBIT
10.15
This SUBSCRIPTION AGREEMENT
(this "Agreement") is made as of June 30,2008 by and between EFT BioTech
Holdings, Inc., a company incorporated and existing under the laws of Nevada,
USA ("Subscriber"), and Excalibur International Marine Corporation, a
company incorporated and existing under the laws of Taiwan, ROC (the
“Company”).
WHEREAS, as of the date
hereof, the Company has a paid-in share capital of Five Hundred Sixty Six
Million Six Hundred Sixty Two Thousand and Five Hundred New Taiwan dollars
($566,662,500) divided into Fifty Six Million Six Hundred Sixty Six Thousand and
Two Hundred Fifty (56,666,250) ordinary shares of NTD10 each ("Ordinary
Shares");
WHEREAS, the Company proposes
to issue and sell to the Subscriber and the Subscriber proposes to subscribe for
Fifty Eight Million Eight Hundred Thousand (58,800,000) Ordinary Shares
("Acquired Stock") on the Closing Date (as defined herein below) under the terms
and conditions set forth in this Agreement; and
WHEREAS, the parties hereto
will enter into a Shareholders’
Agreement upon Closing, pursuant to which the parties thereto are agreeing,
among other things, to restrict the transfer of Ordinary Shares
(“Shareholders’
Agreement”).
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE
1
Subscription
for Newly-issued Stock
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1.1
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Subscription and Sale
of Newly-issued Stock.
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At the
closing of the transactions-contemplated by this Agreement (the “Closing”), upon
the terms and subject to the conditions set forth in this Agreement, the Company
shall issue, sell, assign, transfer and convey to the Subscriber, and the
Subscriber shall purchase and acquire from the Company, 58,800,000 common shares
of the Company (“Acquired Stock”) which represents a total of 49% of the
issued and outstanding shares of the Company upon Closing. The Acquired Stock
shall be issued, credited as fully paid, and shall have the rights attached
thereto set out in the Memorandum and Articles of Association and the
Shareholders' Agreement
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1.2
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Time and Place of
dosing.
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The
Closing shall take place at the office of the Company at 15:00 P.M. on July
25, 2008 or on such other date as is mutually agreeable to the
Subscriber and the Company. The date of the Closing is herein referred to
as the "Closing Date." The parties acknowledge and understand the Subscriber or
its subsidiary will set up a company incorporated under the laws of Taiwan
to be the investment vehicle (“Investment Vehicle”) to implement the
transaction contemplated herein and the process and the timeframe of Foreign
Investment Application by Subscriber or its subsidiary will be subject to the
discretion of Taiwan authorities, Subscriber will use its best reasonable effort
to implement the investment via the Investment Vehicle in accordance with
applicable laws and regulation s of Taiwan, hi the event that the Investment
Vehicle is not able to pay the Subscription Price at Closing, the Closing Date
shall be extended to a maximum of 14 calendar days. The parties shall use their
best reasonable effort to work out an alternative way to pay the Subscription
Price. In the event that Subscriber is not likely to be able to pay the
Subscription Price upon Closing, the parties agree Subscriber may elect to make
a loan of the amount equal to the Subscription Price to the Company for the
payment of the Catamaran Car Cargo Ferry “Nixe 2”.
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1.3
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Subscription
Price.
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The
aggregate subscription price for the Acquired Stock (the “Subscription Price”)
shall be Five Hundred and Eight Two Million Four Hundred Fifty Two Thousand New
Taiwan Dollars (NT 582,452,000) in the forms of cash, payable notes and/or
other financing facilities. The Subscription Price to be provided are subject to
a result of due diligence on the Company that is satisfactory to the
Subscriber.
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1.4
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Manner of Payment of
Subscription Price.
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At the
Closing, the Subscriber or its subsidiary shall pay the Subscription Price by
cash, payable notes and/or other financing facilities to the Company, made to
such bank account or accounts, in the event of cash, as the Company shall
specify by written notice to the Subscriber delivered in sufficient time to
allow for the transfer to be so made an the ordinary course.
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1.5
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Manner of Delivery of
Shares and Shareholder
Registration.
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At the
Closing, the Company shall deliver to the Subscriber an irrevocable instruction
letter to its transfer agent with respect to the issue to the
Subscriber of stock certificates representing all of the Acquired Stock (the
"Instruction Letter"), or share certificates representing the Acquired Stock
subscribed by the Subscriber or its subsidiary on the Closing Date, as
applicable. As soon as practicable after the Closing, Subscriber or it's
designated subsidiaries/ legal entities shall be registered as a general Common
Shareholders with the same voting rights of the previous and current Common
Shareholders of the Company.
ARTICLE
2
Conditions
to the Obligations of the Subscriber to Closing
On me
Closing Date, the obligation of the Subscriber to subscribe for the Acquired
Stock and to perform any obligations hereunder shall be subject to the
satisfaction of the following conditions on or before the “Closing Date”
(subject to any waiver of any such condition by me
Subscriber):
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2.1
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Representations and
Warranties.
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The
representations and warranties of the Company contained in Article 3 hereof
shall be true and correct at and as of the Closing Date as if made at and as of
such date.
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2.2
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Compliance with tills
Agreement.
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The
Company shall have performed and complied with all of the agreements and
conditions set forth or contemplated herein that are required to be performed or
complied with on or before the Closing Date. Furthermore, the due diligence on
the Company conducted by the Subscriber is satisfactory to me
Subscriber.
2
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2.3
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Subscription Permitted
by Applicable Laws.
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The
subscription including payment for the Acquired Stock to be subscribed by the
Subscriber hereunder and the consummation of the transactions contemplated
hereby for the Closing Date 0 shall not be prohibited by any Requirement of Law,
(ii) shall not subject the Subscriber to any penalty or, in their
reasonable judgment, any other onerous condition under or pursuant to any
Requirement of Law, and (iii) shall be permitted by all Requirements of Law to
which they or the transactions contemplated by or referred to herein are
subject; and the Subscriber shall have received such certificates or other
evidences as it may request to establish compliance with this
condition.
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2.4
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Litigation.
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There
shall be no legal actions, suits, judgments, proceedings, investigations, claims
or disputes pending or, to the Company's knowledge, threatened, at law, in
equity, in arbitration or before any Governmental Authority against or affecting
the Company which will hinder; obstruct, impede or impair the transaction
contemplated in this Agreement or Shareholders’ Agreement
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2.5
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Consents and
Approvals.
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All
approvals, consents, exemptions, authorizations, or other actions by, or notices
to, or filings with, Governmental Authorities and other Persons in respect of
all Requirements of Law and Contractual Obligations of the Company necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the issuance of Acquired Stock) by the Company, or
enforcement against the Company, of the Transaction Documents to which it is a
party, and the transactions contemplated thereby for the Closing Date shall have
been obtained and be in full force and effect, and the Subscriber shall have
been furnished with appropriate evidence thereof, and all applicable waiting
periods shall have lapsed without extension or the imposition of any conditions
or restrictions.
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2.6
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Memorandum and
Articles of
Association.
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The
Memorandum and Articles of Association of the Company shall be in form and
substance satisfactory to me Subscriber and shall be unchanged from such form
and substance as of the Closing Date.
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2.7
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Board Approval of
Subscriber.
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Approvals
from the board of Subscriber necessary or required under applicable laws in
connection with the execution, delivery or performance of this Agreement shall
have been obtained.
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ARTICLE
3
Representations
and Warranties of the Company
The
Company hereby represents and warrants to the Subscriber as
follows:
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3.1
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Corporate-Existence
and Power.
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(a) The
Company is an entity duly organized, validly existing and in good standing under
the laws of the Taiwan, ROC.
(b) The
Company has all requisite power to own its properties and to carry on its
business as it is now being conducted and is duly licensed or qualified to
do business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such license or qualification
necessary, except where the failure to effect or obtain such qualification,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on the Company.
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3.2
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Corporate
Authorization; No
contravention.
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The
Company has all requisite corporate power and authority (a) to execute and
deliver this Agreement and any other Transaction Documents to which it is a
party, and (b) to perform its obligations hereunder (including, without
limitation, all right, power, capacity and authority to issue, sell and convey
the Acquired Stock as provided by this Agreement), and (c) to conduct its
business as and to the extent now conducted and to own, use and lease its assets and properties. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby have
been duly and validly approved by its Board of Directors/Shareholders Meeting,
and no other corporate proceedings on the part of the Company are necessary to
authorize the execution, delivery and performance of the Transaction Documents
by the Company and the consummation of the transactions contemplated
hereby. The Transaction Documents have been duly and validly executed and
delivered by the Company and constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms. The execution and
delivery by the Company of each Transaction Document to which it is a party
and the performance of the transactions contemplated hereby or thereby,
including, without limitation, the issuance of the Acquired Stock do hot
contravene the Company's Memorandum and Articles of
Association.
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3.3
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Binding
Effect.
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This
Agreement and the other Transaction Documents have been duly executed and
delivered by the Company.
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3.4
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Litigation.
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There are
no legal actions, suits, judgments, proceedings, investigations, claims or
disputes pending or, to the Company's knowledge, threatened, at law, in equity,
in arbitration or before any Governmental Authority against or affecting the
Company including, without limitation, any of its officers, directors,
employees, assets and properties that (1) impairs in any material respect the
ability of the Company to perform its obligations under this Agreement, (2)
restricts in any material respect or prohibits the sale of the Acquired Stock to
the Subscriber or (3) would reasonably be expected to have a Material Adverse
Effect on the Company. There are no injunctions, writs, temporary restraining
orders or the like in effect or, to the Company's knowledge, threatened that
could enjoin or restrain the execution, delivery or performance of the
Transaction Documents.
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3.5
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Compliance with
Laws.
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The
Company is in compliance in all material respects with all Requirements of Law,
the failure to comply with which would have a Material Adverse Effect on the
condition of the Company.
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3.6
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Consent.
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No
permit, consent, approval or authorization of, or declaration to or filing with,
any Governmental Authority or. other public or private third party is necessary
or required in connection with any of the execution, delivery or performance of
the Agreement by the Company or the consummation of any other transaction
contemplated thereby; or otherwise, such permit, consent, approval,
authorization, declaration or filing shall obtained by and before the Closing
Date.
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3.7
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No
Violations.
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Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated thereby by the Company, will contravene, violate,
accelerate, trigger, result in a breach of or constitute a default under (i) any
Applicable Law, (ii) any material provision of the charter or bylaws of the
Company, or (iii) any agreement, indenture or other instrument to which it is a
party or by which it or its properties may be bound or affected, except, with
respect to this clause (iii), for contraventions, violations, breaches or
defaults that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on the Company, or materially impair
or restrict the Company's ability to perform its obligations under the
Agreement
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3.8
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Disclosure.
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The
representations and warranties contained in this Agreement and in any other
information, documents furnished to the Subscriber by the Company in connection
with the due diligence and the transactions contemplated hereby do not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make any statement contained herein or therein, in the
light of the circumstances under which it was made, not
misleading.
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3.9
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Capitalization.
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(a) As
of the date of this Agreement, the authorized capital stock of the Company
divided into Seventy Million (70,000,000) Ordinary Shares of NTD 10
each. In order to implement the transaction contemplated herein, the
Company shall amend its Articles of Association to have an authorized
capital of NID 1,200,000,000.
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(b) As
of the date of this Agreement, there were (1) Fifty Six Million Six Hundred
Sixty Six Thousand and Two Hundred Fifty (56,666,250) Ordinary Shares issued and
outstanding, (2) no shares of preferred stock issued and outstanding, (3) no
Ordinary Shares reserved for issuance upon exercise of outstanding stock options
issued by the Company to current or former employees, directors and consultants
of the Company, and (4) no Ordinary Shares were reserved for issuance upon the
exercise of any warrants of the Company or upon the conversion or exchange of
any security of the Company. No options, warrants or convertible or exchangeable
securities of the Company are issued and outstanding.
(c) All
outstanding shares of the Ordinary Shares are, and all shares reserved for
issuance, when issued, will be, duly authorized, validly issued, fully paid and
non-assessable with respect to the issuance and delivery thereof. As of the date
hereof there are no outstanding subscriptions, options, warrants, rights
(including, but not limited to, stock appreciation rights), preemptive rights or
other contracts, commitments, understandings or arrangements, including, but not
limited to, any right of conversion or exchange under any outstanding security,
instrument or agreement (together, "OPHONS"), obligating the Company to issue or
sell any shares of capital stock of the Company or to grant, extend or enter
into any Option with respect thereto.
(d) Assuming
consummation of the Closing, as of the Closing Date, 58,800,000 Ordinary Shares
will be issued and owned by the Subscriber or its subsidiary.
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3.10
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Shareholders.
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Schedule
I sets forth the shareholders, of the Company and the number of shares held by
them immediately prior to and subsequent to the Closing.
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3.11
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Financial
Information.
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The
audited consolidated financial statements and unaudited interim consolidated
financial statements (including, in
each case the notes, if any, thereto) included in the due diligence documents
(the "Company Financial Statements") complied as to form in all material
respects with the Requirements of Law with respect thereto, were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved and fairly present the consolidated financial
position of the Company as of the respective dates thereof and the consolidated
results of their operations and cash flows for the respective periods then
ended.
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3.12
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Absence of Undisclosed
Liabilities.
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Except
for matters reflected or reserved against in the balance sheet for the period
ended June 30,2008 included in the Company financial statements or as disclosed
made, the Company did not have at such date, or does not have incurred since
such date, any liabilities or obligations (whether absolute, accrued,
contingent, fixed or otherwise, or whether due or to become due) of any nature
mat would be required under Requirements of Law's generally accepted accounting
principles to be reflected on a consolidated balance sheet or the
Company.
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ARTICLE
4
Representations
and Warranties of the Subscriber
The
Subscriber hereby represents and warrants as follows:
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4.1
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Authorization; No
Contravention.
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The
execution, delivery and performance by the Subscriber of this Agreement (a) is
within the Subscriber's power and authority and has been duly authorized by all
necessary action, (b) does not contravene the teens of the Subscriber's
organizational documents or any amendment thereof and (c) will not violate,
conflict with or result in any breach or contravention of any Requirement of Law
applicable to the Subscriber.
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4.2
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Binding
Effect.
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This
Agreement and the other Transaction Documents to which the Subscriber is a party
have been duly executed and delivered by the Subscriber, and each constitutes
the legal, valid and binding obligation of the Subscriber enforceable against it
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
ARTICLE
5
Affirmative
Covenants
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5.1
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Operation of
Company.
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From and
after the date hereof through the Closing Date, the Company shall not enter into
any transaction or take any action other than in the ordinary course of
business, except mat the Company may enter into such transactions and take such
other actions outside of the ordinary course of business if specifically
approved in advance in writing by the Subscriber.
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5.2
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Cross Straight Ferry
Liner Permits.
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The
Company covenants that all the governmental licenses or permits, including but
not limited to the vessel earner permit, liner permit
and _____________, from both Taiwan and Mainland China necessary for
the operation of the cross Taiwan Straight ferry liners shall be obtained by the
Company before September 30.
ARTICLE
6
Shareholders
Agreement
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6.1
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Board of Directors and
Supervisors of the
Company
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As soon
as practicable after the Closing, and no later than August 15, 2008,
Subscriber and/or its designated legal entities shall acquire a total number of
5 among 9 directors at the Board of Directors and a total number of 2 among 3
supervisors
6.2 Subscriber
or its designated legal entity will have the Rights of First Refusal of any new
shares placement, shares dilution or similar changes of the Company's share
structure if the enlarged percentage of such possible event is equal or greater
than a three percent (3%) material changes over the existing situation of the
capitalized equity of the Company.
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6.3 On
any liquidation, dissolution or winding-up of the Company, the original issuer
of the “Notes”, BFT, will receive payment of 150% the aggregate face amount
thereof, plus all accrued and unpaid interest at a 10% default rate to be bound
by the default parties, before any payments or distributions are paid or
provided for the Company's Original Common Shareholders or any other
indebtedness made junior to the Subscriber.
6.4 In
the event of a sale of all or .substantially all the Companies stock or assets
whether tangible or intangible, the issuer of the Notes, EFT or shall become the
New Stock/ Shareholders will receive payment of 1.5 times the aggregate face
amount of the Notes thereof, plus all accrued and unpaid interest as stated in
this paragraph, before any payments or distributions are paid or provided for
the Companies if the Companies' would become a public trading Common Stock or
any other indebtedness.
6.5 The
Company shall cause its major shareholders to enter into a shareholders
agreement with Subscriber or its designated legal entities prior to
Closing.
ARTICLE
7
Miscellaneous
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7.1
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Termination.
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(a) This
Agreement may be terminated prior to the Closing Date, as to transactions
scheduled to take place on the Closing Date, as follows:
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(i)
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at
the election of the Company if any one or more of the conditions to its
obligation to close has hot been fulfilled as of the Closing
Date;
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(ii)
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at
the election of the Subscriber if any one or more of the conditions to its
obligation to close has not been fulfilled as of the Closing
Date;
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(iii)
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at
the election of the Subscriber if die Company has breached a covenant or
agreement contained in this Agreement, which breach cannot be or is not
cured by the Closing Date; or
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(iv)
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at
any time on or prior to me Closing Date, by mutual written consent of the
Company and the Subscriber.
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If this Agreement so terminates, it
shall become null and void and have no further force or effect, except as
provided in Section 9.1(b) hereof.
(b) If
this Agreement is terminated in accordance with Section 9.1(a) and any of the
transactions contemplated by this Agreement are not consummated, this
Agreement shall become null and void and of no further force and effect
with respect to those transactions not consummated.
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7.2
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Survival of
Representations and Warranties.
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All of
the representations and warranties made herein shall survive the execution and
delivery of this Agreement, any investigation by or on behalf of the Subscriber,
acceptance of the Ordinary Shares and payment, or termination of this Agreement
and shall remain in full force and effect until the second anniversary of the
Closing Date.
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7.3
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Notices.
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All
notices, demands and other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given when personally delivered or by overnight courier to
the parties at the following addresses or sent by facsimile, with confirmation
received, to the facsimile numbers below (or at such other address or facsimile
number for a party as shall be specified by like notice):
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(a)
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If
to the Company:
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Excalibur
International Marine Corporation
Address: 4F Xx.
000
Xxxxxxx 0, XxxXx Xx.
Xxxxxx, Xxxxxx
Tel No.: 000-0-0000-0000
Fax
No. 000-0-0000-0000
Attention:
Xx. Xxxxx Xxxxx
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(b)
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If
to the Subscriber:
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EFT
BioTech Holdings, Inc.
Address: 000
Xxxxxxx Xx.
Xxxx
xx Xxxxxxxx, XX 00000
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7.4
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Expenses.
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Except as
otherwise expressly provided herein, each party shall pay all of its own
expenses (including without limitation attorneys', consultants and accountants'
fees and expenses) incurred in connection with the negotiation of this
Agreement, the performance of their respective obligations hereunder and the
consummation of the transactions contemplated by this Agreement (whether
consummated or not).
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7.5
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Warranties of
Subscriber.
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Shall the
Subscriber fails to perform the obligation under Clause 1.2 regarding the
payment of the Subscription Price, Subscriber agree to compensate the Company in
the amount of EURO 1,600,000.
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7.6
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Governing
Law.
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All
matters relating to the interpretation, construction, validity and enforcement
of this Agreement shall be governed by and construed in accordance with the laws
of Taiwan without giving effect to any choice or conflict of law
provision.
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7.7
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Dispute
Resolution.
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In the
event of any dispute or controversy arising out of or relating to this
Agreement, the parties shall first attempt in good faith amicably to resolve
such dispute or controversy. If such attempt mils to resolve the dispute or
controversy within thirty (30) days of any written request from one of the
parties to try in good faith to resolve the dispute amicably, the dispute shall
be settled by arbitration in Taipei City, the Republic of China or any other
place agreeable by the Parties involved in such dispute, in accordance 'with
Arbitration Laws of Taiwan, and shall be conducted in the Chinese Language. The
number of arbitrators shall be three. The award rendered by the arbitrators
shall be final and binding upon the affected parties.
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7.8
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Entire
Agreement.
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This
Agreement and the other Transaction Documents are intended by the parties to be
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings other than those set forth or
referred to herein or therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed and delivered by their
duly authorized representatives as of the date first above
written.
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EFT
BIOTECH HOLDINGS, INC.
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By:
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/s/ Xxxx Xxx
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Xxxx
Xxx, President and CEO
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EXCALIBUR
INTERNATIONAL MARINE
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CORPORATION
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By:
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/s/ Jen-Ho Xxxxx
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Xxx-Xx
Xxxxx,
Chairman
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