Exhibit 10.9
STOCK PURCHASE AGREEMENT
by and among
Linkwell Tech Group, Inc.
as Acquiror
Shanghai Likang Disinfectant High-Tech Company, Limited
as Acquiree
and
Shanghai Likang Pharmaceuticals High-Tech Company, Limited
the Shareholders of
Shanghai Likang Disinfectant High-Tech Company, Limited
June 30, 2004
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into this
30th day of June 2004 by and among Linkwell Tech Group, Inc., an Florida
corporation (hereinafter referred to as "Linkwell"), Shanghai Likang
Disinfectant High-Tech Company, Limited, a Chinese Limited Liability Company
(hereinafter referred to as the "Company" or "Likang"), and Shanghai Likang
Pharmaceuticals High-Tech Company, Limited, the shareholder of the Company
(hereinafter referred to as the "Shareholder").
RECITALS:
A. The Shareholder owns 90% of the issued and outstanding shares
of the capital stock of the Company.
B. Linkwell is willing to acquire 90% of the issued and
outstanding capital stock of the Company, making the Company a
subsidiary of Linkwell, and the Shareholders desire to
exchange 90% of his shares of the Company's capital stock for
shares of Linkwell authorized but unissued shares of Common
Stock as hereinafter provided.
C. The Company is doing business in China and related territories
with an address of
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxxxxx,
Xxxxxxxx, Xxxxx, 000000
Tel: 0000-00000000
Fax: 0000-00000000
Website: xxxx://xxx.xxxx.xxx/
D. It is the intention of the parties hereto that: (i) Linkwell
shall acquire 90% of the issued and outstanding capital stock
of the Company in exchange solely for 8,000,000 shares of
Linkwell authorized but unissued Common Stock set forth below
(the "Exchange"); and (ii) the Exchange shall qualify as a
transaction in securities exempt from registration or
qualification under the Securities Act of 1933, as amended,
(the "Act") and under the applicable securities laws of the
state or jurisdiction where the Shareholders reside.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange of Shares. Linkwell and the Shareholders hereby agree that
the Shareholders shall, on the Closing Date on June 30, 2004, exchange 90% of
his issued and outstanding shares of the capital stock of the Company (the
"Likang Shares") for 8,000,000 newly issued shares of Linkwell Common Stock,
$.001 par value (the "Linkwell Shares").
1.2 Delivery of Likang Shares. On the Closing Date, the Shareholder
will deliver to Linkwell the certificates representing 90% of the Likang Shares,
duly endorsed (or with executed stock powers) so as to make Linkwell the 90%
owner thereof. Linkwell shall deliver to the Shareholders 8,000,000 Linkwell
Shares to be delivered to the Shareholders or as the shareholders direct so as
to make the Shareholders or their nominee the sole owner thereof.
1.3 Investment Intent. 8,000,000 newly issued shares of Linkwell common
stock have not been registered under the Securities Act of 1933, as Amended, and
may not be resold unless the MAXZ Shares are registered under the Act or an
exemption from such registration is available. The Shareholder represents and
warrants that he is acquiring the Linkwell Shares for his own account, for
investment, and not with a view to the sale or distribution of such Shares. Each
certificate representing the Linkwell Shares will have a legend thereon
incorporating language as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The shares have been acquired for investment and may
not be sold or transferred in the absence of an effective
Registration Statement for the shares under the Act unless in
the opinion of counsel satisfactory to the Company,
registration is not required under the Act."
1.4. Conditions Precedent. Completion of the Exchange shall be
conditional upon (a) the Shareholder completing a review of the financial,
trading and legal position of Linkwell in respect of Linkwell; (b) Linkwell has
obtained all the necessary consent, authorization and approval from the relevant
regulatory authorities, its board of directors and/or its shareholders; (c)
receipt by the Shareholder of a legal opinion that the Exchange qualifies as a
tax-free reorganization under Section 368(a)(1)(B) of the Internal Revenue Code
of 1986, as amended.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER
The Company and the Shareholders hereby represent and warrant as
follows:
2.1 Organization and Good Standing; Ownership of Shares. The Company
and its subsidiary are corporations duly organized, validly existing and in good
standing under the laws of China, and is entitled to own or lease its properties
and to carry on its business as and in the places where such properties are now
owned, leased or operated and such business is now conducted. The Company is
duly licensed or qualified and in good standing as a Chinese company where the
character of the properties owned by it or the nature of the business transacted
by it make such licenses or qualifications necessary. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating either
the Company or the Shareholder to issue, sell or transfer any stock or other
securities of the Company.
2.2 Ownership of Capital Stock. The Shareholders are the beneficial
owner of record and beneficially of all of the shares of capital stock of the
Company, all of which shares are free and clear of all rights, claims, liens and
encumbrances, and have not been sold, pledged, assigned or otherwise transferred
except pursuant to this Agreement.
2.3 Financial Statements, Books and Records. There has been previously
delivered to Linkwell the unaudited balance sheet of the Company as of May 31,
2004 (the "Balance Sheet"). The Balance Sheet is true and accurate and fairly
represents the financial position of the Company as at such date, and has been
prepared in accordance with generally accepted accounting principles
consistently applied.
2.4 No Material Adverse Changes. Since the date of the Balance
Sheet there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of the Company;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of the Company, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of the
Company's capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by the Company of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.5 Taxes. The Company has prepared and filed all appropriate tax
returns for all periods prior to and through the date hereof for which any such
returns have been required to be filed by it and has paid all taxes shown to be
due by said returns or on any assessments received by it or has made adequate
provision for the payment thereof.
2.6 Compliance with Laws. The Company has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of the Company.
2.7 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of the Company;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, the Company, or upon the properties or business of the Company; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of the Company.
2.8 Actions and Proceedings. There is no outstanding order,
judgment, injunction, award or decree of any court, governmental or regulatory
body or arbitration tribunal against or involving the Company.
2.9 Brokers or Finders. No broker's or finder's fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Shareholders.
2.10 Real Estate. The Company neither owns real property nor is a
party to any leasehold agreement.
2.11 Tangible Assets. The Company has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Company, any related capitalized items or
other tangible property material to the business of the Company (the "Tangible
Assets"). The Company holds all rights, title and interest in all the Tangible
Assets owned by it on the Balance Sheet or acquired by it after the date of the
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances. All of the
Tangible Assets are in good operating condition and repair taking into account
the age of the tangible assets and subject to fair wear and tear, and are usable
in the ordinary course of business of the Company and conform to all applicable
laws, ordinances and governmental orders, rules and regulations relating to
their construction and operation.
2.12 Liabilities. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
2.13 Operations of the Company. From the date of the Balance Sheet on
May 31, 2004 and through the Closing Date on June 30, 2004 hereof the Company
has not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of the Company except in the
ordinary course of business; or
(vi) materially increased the annual rate of compensation of
any executive employee of the Company;
(vii) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of the Company;
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
2.14 Capitalization. Likang has a registered capital of
10,000,000 RMB. There are three shareholders as recorded. Xx. XxxXxxx Xxxx
owns 56.25%, Mr. Xxx Xxxx owns 33.75%, and Shanghai Shanhai Group owns 10%.
2.15 Full Disclosure. No representation or warranty by the Company or
the Shareholder in this Agreement or in any document or schedule to be delivered
by them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to Linkwell pursuant hereto or in connection with
the negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the businesses of the Company.
2.16 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 2 shall be true and
complete on the Closing Date on June 30, 2004 with the same force and effect as
though such representations and warranties had been made on and as of the
Closing Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF LINKWELL
Linkwell hereby represents and warrants to the Company and the
Shareholders as follows:
3.1 Organization and Good Standing. Linkwell is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital stock of
Linkwell consists of 200,000,000 shares of Common Stock, of which zero shares
are presently issued and outstanding and 2,000,000 shares of preferred stock, of
which none is issued and outstanding. Linkwell is duly licensed or qualified and
in good standing as a foreign corporation where the character of the properties
owned by Linkwell or the nature of the business transacted by it make such
license or qualification necessary. Linkwell does not have any subsidiaries.
3.2 The Linkwell Shares. The Linkwell Shares to be issued to the
Shareholders have been or will have been duly authorized by all necessary
corporate and stockholder actions and, when so issued in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements; Books and Records. There has been previously
delivered to the Company, the unaudited balance sheet of Linkwell as May 31,
2004 and the unaudited balance sheet as at May 31, 2004 (the " Balance Sheets")
and the related statements of operations for the periods then ended (the
"Financial Statements"). The Financial Statements are true and accurate and
fairly represent the financial position of the Company as at such dates and the
results of its operations for the periods then ended, and have been prepared in
accordance with generally accepted accounting principles consistently applied.
3.4 No Material Adverse Changes. Since the date of the Linkwell
Balance Sheet on May 31, 2004, there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of Linkwell;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of Linkwell, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of
Linkwell's capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by Linkwell of any properties or assets;
or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
3.5 Taxes. Linkwell has prepared and filed all appropriate federal,
state and local tax returns of every kind and category (including, without
limitation, income taxes, estimated taxes, excise taxes, sales taxes, inventory
taxes, use taxes, gross receipt taxes, franchise taxes and property taxes) for
all periods prior to and through the date hereof for which any such returns have
been required to be filed by it or the failure to make such filings and
resulting liability would not be material relative to the results of operations
of Linkwell. Linkwell has paid all taxes shown to be due by the said returns or
on any assessments received by it or has made adequate provision for the payment
thereof.
3.6 Compliance with Laws. Linkwell has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to their businesses,
including Federal and State securities laws, which, if not complied with, would
materially and adversely affect the business of Linkwell or the trading market
for the shares of Linkwell Common Stock.
3.7 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of Linkwell;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which Linkwell is a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, Linkwell or upon the properties or business of Linkwell; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a material adverse effect on the business or operations of Linkwell.
3.8 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Linkwell.
3.9 Brokers or Finders. No broker's or finder's fee will be payable by
Linkwell in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by Linkwell.
3.10 Assets The Company has full title and interest in all machinery,
equipment, furniture, leasehold improvements, fixtures, vehicles, structures,
owned or leased by the Company, any related capitalized items or other tangible
property material to the business of the Company (the "Tangible Assets"). The
Company holds all rights, title and interest in all the Tangible Assets owned by
it on the Balance Sheet or acquired by it after the date of the Balance Sheet,
free and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair taking into account the age of the tangible
assets and subject to fair wear and tear, and are usable in the ordinary course
of business of the Company and conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
3.11 Liabilities. Linkwell does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, Linkwell will not have any Liabilities,
other than Liabilities fully and adequately reflected on the Linkwell Balance
Sheet or Linkwell balance sheet dated May 31, 2004, except for Liabilities
incurred in the ordinary course of business.
3.12 Operations of Linkwell. Except as set forth on Schedule 3.11
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of Linkwell except in the ordinary
course of business; or
(vi) materially increased the annual level of compensation of
any executive employee of Linkwell;
(vii) increased, terminated amended or otherwise modified any
plan for the benefit of employees of Linkwell;
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
3.13 Authority to Execute and Perform Agreements. Linkwell has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully their obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of Linkwell, enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by Linkwell of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, the Stockholders of Linkwell, or the approval or consent of any
other person;
(ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with any notice or lapse of
time or both would constitute) a default under, any order, judgment or decree
applicable to Linkwell, or any instrument, contract or other agreement to which
Linkwell is a party or by or to which Linkwell is bound or subject; or
(iii) result in the creation of any lien or other encumbrance
on the assets or properties of Linkwell.
3.14 Delivery of Periodic Reports; Compliance with 1934 Act. Linkwell
has provided the Company and the Shareholder with financial statements. All
reports filed pursuant to such Act are complete and correct in all material
respects. All material contracts relative to MAXZ are included in the Periodic
Reports. All material contracts and commitments for the provision or receipt of
services or involving any obligation on the part of Linkwell are included as
exhibits to such periodic reports or are listed on Schedule 3.13 hereto.
3.15 Capitalization. The authorized capital stock of Linkwell consists
of 200,000,000 shares of common stock, $.001 par value, of which zero shares are
presently issued and outstanding and 2,000,000 shares of preferred stock, of
which none is issued and outstanding. Except as indicated in Schedule 3.14
hereto, Linkwell has not granted, issued or agreed to grant, issue or make
available any warrants, options, subscription rights or any other commitments of
any character relating to the issued or unissued shares of capital stock of
Linkwell.
3.16 Full Disclosure. No representation or warranty by Linkwell in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
to the Company or the Shareholders pursuant hereto or in connection with the
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the business
of Linkwell.
3.17 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 3 shall be true and
complete on the Closing Date with the same force and effect as through such
representations and warranties had been made on and as of the Closing Date on
June 30, 2004.
SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDER
The Company and the Shareholders covenant to Linkwell as follows:
4.1 Conduct of Business. From the date hereof through the Closing Date,
the Shareholders and The Company shall conduct its business in the ordinary
course.
4.2 Preservation of Business. From the date May 31, 2004 through the
Closing Date, the Shareholder and the Company shall use its best efforts to
preserve its business organization intact, keep available the services of its
present employees, consultants and agents, maintain its present suppliers and
customers and preserve its goodwill.
4.3 Litigation. The Company shall promptly notify Linkwell of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against the Company or against any officer, director,
employee, consultant, agent, shareholder or other representative with respect to
the affairs of the Company.
4.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, the Shareholder and the Company shall
conduct its business in such a manner so that the representations and warranties
contained in Section 2 shall continue to be true and correct on and as of the
Closing Date and as if made on and as of the Closing Date, and shall:
(i) promptly give notice to Linkwell of any event, condition
or circumstance occurring from the date hereof through the Closing Date which
would render any of the representations or warranties materially untrue,
incomplete, insufficient or constitute a violation or breach of this Agreement;
and
(ii) supplement the information contained herein in order that
the information contained herein is kept current, complete and accurate in all
material respects.
SECTION 5. COVENANTS OF LINKWELL
MAXZ covenants to the Company and the Shareholder as follows:
5.1 Conduct of Business. From the date hereof through the Closing Date,
Linkwell shall conduct its business in the ordinary course and, without the
prior written consent of the Company, shall ensure that Linkwell does not
undertake any of the actions specified in Section 3.12 hereof.
5.2 Preservation of Business. From the date hereof through the Closing
Date, Linkwell shall preserve its business organization intact and use its best
efforts to preserve Linkwell goodwill.
5.3 Litigation. Linkwell shall promptly notify the Company of any
lawsuits, claims, proceedings or investigations that after the date hereof are
threatened or commenced against Linkwell or against any officer, director,
employee, consultant, agent, or stockholder with respect to the affairs of
Linkwell.
5.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, Linkwell shall conduct its business in
such a manner so that the representations and warranties contained in Section 3
shall continue to be true and correct on and as of the Closing Date and as if
made on and as of the Closing Date, and shall:
(i) promptly give notice to the Company of any event,
condition or circumstance occurring from the date hereof through the Closing
Date which would render any of the representations or warranties materially
untrue, incomplete, insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in order that
the information contained herein is kept current, complete and accurate in all
material respects.
5.5 No Other Negotiations. From the date hereof until the earlier of
the termination of this Agreement or consummation of this Agreement, Linkwell
will not permit and will not authorize any officer or director of Linkwell or
any other person on its behalf to, directly or indirectly, solicit, encourage,
negotiate or accept any offer from any party concerning the possible disposition
of all or any substantial portion of the capital stock by merger, sale or any
other means or any other transaction that would involve a change in control of
Linkwell, or any transaction in which Linkwell contemplates issuing equity or
debt securities.
SECTION 6. COVENANTS
6.1 Corporate Examinations and Investigations. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of the other party under this Agreement.
6.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
6.3 Further Assurances. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing on Jun 30, 2004, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the Closing.
6.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of one (1) year from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except due to the
action of the receiving party);
(iii) the receiving party had within its possession at the
time of disclosure.
(iv) the disclosure of which is required by law, the SEC or other competent
authority;
(v) which at the time of disclosure by one party written consents have been
obtained from the other parties.
SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATION OF LINKWELL TO CLOSE
The obligation of Linkwell to enter into and complete the Agreement is
subject, at the option of Linkwell, to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may be waived
by Linkwell in writing.
7.1 Representations and Covenants. The representations and warranties
of the Company and the Shareholders contained in this Agreement shall be true in
all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date. The Company and the
Shareholders shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by the Company and the Shareholders on or prior to the Closing Date. The
Company and the Shareholders shall have delivered to Linkwell, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
7.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Board of
Directors of the Company shall have approved the transactions contemplated by
this Agreement and the Company shall have delivered to Linkwell, if requested by
Linkwell, resolutions by its Board of Directors, certified by the Secretary of
the Company, authorizing the transactions contemplated by this Agreement.
7.3 Satisfactory Business Review. Linkwell shall have satisfied itself,
after Linkwell and its representatives have completed the review of the business
of the Company contemplated by this Agreement, that none of the information
revealed thereby or in the Balance Sheet has resulted in, or in the reasonable
opinion of Linkwell may result in, a material adverse change in the assets,
properties, business, operations or condition (financial or otherwise) of the
Company.
7.4 Certificate of Good Standing. Linkwell shall receive a certificate
of good standing dated 10 business days after the Closing Date to the effect
that the Company is in good standing under the laws of its jurisdictions of
incorporation.
7.5 Stock Certificates: At the Closing, the Shareholder will deliver
the certificates representing the Likang Shares, duly endorsed (or with executed
stock powers) so as to make Linkwell the 90% owner thereof within 10 business
days.
7.8 Other Documents. The Company and the Shareholder shall have
delivered such other documents, instruments and certificates, if any, as are
required to be delivered pursuant to the provisions of this Agreement or which
may be reasonably requested in furtherance of the provisions of this Agreement.
SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY AND
SHAREHOLDERS TO CLOSE
The obligation of the Company and the Shareholders to enter into and
complete the agreement is subject, at the option of the Company and the
Shareholders, to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived in writing by the
Company.
8.1 Representations and Covenants. The representations and warranties
of Linkwell contained in this Agreement shall be true in all material respects
on the Closing Date with the same force and effect as though made on and as of
the Closing Date. Linkwell shall have performed and complied with all covenants
and agreements required by the Agreement to be performed or complied with by
Linkwell on or prior to the Closing Date. Linkwell will deliver to the Company
and the Shareholders, if requested, a certificate, dated the Closing Date and
signed by an executive officer of Linkwell, to the foregoing effect within 10
business days after the closing.
8.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Agreement shall have been obtained. The Board of
Directors of Linkwell shall have approved the transactions contemplated by this
Agreement, and Linkwell will deliver to the Company and the Shareholder, if
requested, resolutions by their Board of Directors certified by the Secretary of
Linkwell authorizing the transactions contemplated by this Agreement within 10
business days after the closing.
8.3 Legal Opinion. Draong is to provide to the Company and the
Shareholders a legal opinion that the Exchange qualifies as a tax-free
reorganization under Section 368(1)(1)(B) of the Internal Revenue Code of 1986,
as amended.
8.4 Third Party Consents. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with Linkwell
which may be required in connection with the performance by Linkwell of their
obligations under such contracts or other agreements after the Closing shall
have been obtained.
8.5 Satisfactory Business Review. The Company and the Shareholders
shall have satisfied themselves, after the Company, the Shareholders and their
representatives and advisers have completed the review of business of Linkwell
and the information provided hereby or in connection herewith, or following any
discussions with management or representatives of Linkwell that none of the
information revealed thereby has resulted in or in the reasonable opinion of the
Company may result in a material adverse change in the assets, properties,
business, operations or condition (financial or otherwise) of Linkwell.
8.6 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or
a discovery order in connection with such transactions, or which has or may in
the reasonable opinion of the Company and the Shareholder, have a materially
adverse effect on the assets, properties, business, operations or condition
(financial or otherwise) of Linkwell.
8.7 Certificate of Good Standing. The Company and the Shareholders
shall receive a certificate of good standing within 10 business days after the
Closing Date to the effect that the Company is in good standing under the laws
of its jurisdictions of incorporation.
8.8 Stock Certificates. At the Closing, the Shareholder shall receive
certificates representing the Linkwell Shares to be received pursuant hereto and
subject to the conditions previously described within 10 business days.
8.9 Other Documents. Linkwell shall have delivered such other
instruments, documents and certificates, if any, as are required to be delivered
pursuant to the provisions of this Agreement or which may be reasonably
requested in furtherance of the provisions of this Agreement.
SECTION 9. INDEMNIFICATION
9.1 Obligation of Linkwell to Indemnify. Subject to the limitations on
the survival of representations and warranties contained in Section 9, Linkwell
hereby agrees to indemnify, defend and hold harmless the Company and the
Shareholder from and against any losses, liabilities, damages, deficiencies,
costs or expenses (including interest, penalties and reasonable attorneys' fees
and disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of Linkwell contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
9.2 Obligation of the Company and the Shareholder to Indemnify. Subject to the
limitations on the survival of representations and warranties contained in
Section 10, the Company and the Shareholder agree to indemnify, defend and hold
harmless Linkwell from and against any Loss, based upon, arising out of or
otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement made by any of them and contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
SECTION 10. THE CLOSING
The Closing shall take place not later than June 30, 2004. At the
Closing, the parties shall provide each other with such documents as may be
necessary or appropriate in order to consummate the transactions contemplated
hereby including evidence of due authorization of the Agreement and the
transactions contemplated hereby.
SECTION 11. MISCELLANEOUS
11.1 Waivers. The waiver of a breach of this Agreement or the failure
of any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
11.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
11.3 Assignment. This Agreement is not assignable except by
operation of law.
11.4 Notices. Until otherwise specified in writing, the mailing
addresses of both parties of this Agreement shall be a follows:
Linkwell
Linkwell Tech Group, Inc.
0000 Xxxxxx Xxxx, #000
Xxxx Xxxxx, XX 00000
Likang: Shanghai Likang Disinfectant
High-Tech Company, Limited
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxxxxx,
Xxxxxxxx, Xxxxx, 000000
Shareholder:
Shanghai Likang Pharmaceuticals
High-Tech Company, Limited
X/X Xxxxxxx Xxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxxxxx,
Xxxxxxxx, China, 200436
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address that shall have been furnished in
writing to the addressor.
11.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
applicable of the laws of any other jurisdiction.
11.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party except as required
to stay in compliance with the Linkwell reporting obligations under the
Securities Exchange Act of 1934.
11.7 Entire Agreement. This Agreement and the collateral agreements
executed in connection with the consummation of the transactions contemplated
herein contain the entire agreement among the parties with respect to the
purchase and issuance of the Linkwell Shares and the Linkwell Shares and related
transactions, and supersede all prior agreements, written or oral, with respect
thereto.
11.8 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
11.9 Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Linkwell Tech Group, Inc.
By:
--
Name:
Its:
Shanghai Likang Disinfectant High-Tech Company, Limited
By:
---------------------
Name:
Its: President
Shanghai Likang Pharmaceuticals High-Tech Company, Limited
-------------------
Name:
Its: President
6217-0100 324437.1
