EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
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This Share Exchange Agreement, dated as of April 7, 2006, is made by and
among TECHEDGE, INC., a Delaware corporation (the "Acquiror"), Mr. Xiaodong Zhu,
a Chinese citizen who resides at 39 shuguang Lu, Building B, Hangzhou, 310007
China (the "Shareholder"), and China Biopharma Limited, a Cayman Islands company
(the "Company").
BACKGROUND
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The Company is a special purpose company which holds the rights to own 65%
of CBP Tianyuan Bio-Tech Development Co., Ltd., a vaccine research and marketing
company, and 35% of Zhejiang Tianyuan Bio-Pharmaceutical Co., Ltd., a vaccine
manufacturing company in China.
The Shareholder has agreed to transfer to the Acquiror, and the Acquiror
has agreed to acquire from the Shareholder, all of the Shares, which Shares
constitute 100% of the outstanding capital stock of the Company, in exchange for
3,000,000 unregistered shares of the Acquiror's Common Stock to be issued on the
Closing Date (the "Acquiror Shares"), on the terms and conditions as set forth
herein. The Acquiror Shares are unregistered shares
SECTION I
DEFINITIONS
Unless the context otherwise requires, the terms defined in this Section 1
will have the meanings herein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the terms herein
defined.
1.1 "Accredited Investor" has the meaning set forth in Regulation D under
the Securities Act.
1.2 "Acquired Companies" means, collectively, the Company and the Company
Subsidiaries.
1.3 "Acquiror Board" means the Board of Directors of the Acquiror.
1.4 "Acquiror Companies" means, collectively, the Acquiror and the
Acquiror Subsidiaries, if any.
1.5 "Acquiror's Common Stock" means the Techedge, Inc. common stock, par
value $0.0001 per share.
1.6 "Acquiror Subsidiaries" means all of the direct and indirect
Subsidiaries of the Acquiror.
Techedge-CBP Share Exchange Agreement
1.7 "Affiliate" means any Person that directly or indirectly controls, is
controlled by or is under common control with the indicated Person.
1.8 "Agreement" means this Share Exchange Agreement, including all
Schedules and Exhibits hereto, as this Share Exchange Agreement may be from time
to time amended, modified or supplemented.
1.9 "Closing Acquiror Shares" means the aggregate number of Acquiror
Shares issuable to the Shareholders at Closing.
1.10 "Closing Date" has the meaning set forth in Section 3.
1.11 "Commission" means the Securities and Exchange Commission or any
other federal agency then administering the Securities Act.
1.12 "Company Board" means the Board of Directors of the Company.
1.13 "Company Indemnified Party" has the meaning set forth in Section
12.2.1.
1.14 "Company Subsidiaries" means all of the direct and indirect
Subsidiaries of the Company, including, without limitation, China Quantum
Communications, Inc. and Quantum Communication (China) Co., Ltd.
1.15 "Exhibits" means the several exhibits referred to and identified in
this Agreement.
1.16 "GAAP" means, with respect to any Person, United States generally
accepted accounting principles applied on a consistent basis with such Person's
past practices.
1.17 "Material Adverse Effect" means, when used with respect to the
Acquiror Companies or the Acquired Companies, as the case may be, any change,
effect or circumstance which, individually or in the aggregate, would reasonably
be expected to (a) have a material adverse effect on the business, assets,
financial condition or results of operations of the Acquiror Companies or the
Acquired Companies, as the case may be, in each case taken as a whole or (b)
materially impair the ability of the Acquiror or the Company, as the case may
be, to perform their obligations under this Agreement, excluding any change,
effect or circumstance resulting from (i) the announcement, pendency or
consummation of the transactions contemplated by this Agreement, (ii) changes in
the United States securities markets generally, or (iii) changes in general
economic, currency exchange rate, political or regulatory conditions in
industries in which the Acquiror Companies or the Acquired Companies, as the
case may be, operate.
1.18 "Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative or
investigative) commenced, brought, conducted, or heard by or before, or
otherwise involving, any Governmental Authority.
1.19 "Regulation S" means Regulation S under the Securities Act, as the
same may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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Techedge-CBP Share Exchange Agreement
1.20 "Rule 144" means Rule 144 under the Securities Act, as the same may
be amended from time to time, or any successor statute.
1.21 "Schedule 14(f) Filing" means an information statement flied by the
Acquiror on Schedule 14f-1 under the Exchange Act.
1.22 "Schedules" means the several schedules referred to and identified
herein, setting forth certain disclosures, exceptions and other information,
data and documents referred to at various places throughout this Agreement.
1.23 "Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same will be in effect at the time.
1.24 "Subsidiary" means, with respect to any Person, any corporation,
limited liability company, joint venture or partnership of which such Person (a)
beneficially owns, either directly or indirectly, more than 50% of (i) the total
combined voting power of all classes of voting securities of such entity, (ii)
the total combined equity interests, or (iii) the capital or profit interests,
in the case of a partnership; or (b) otherwise has the power to vote or to
direct the voting of sufficient securities to elect a majority of the board of
directors or similar governing body.
1.25 "Transaction Documents" means, collectively, all agreements,
instruments and other documents to be executed and delivered in connection with
the transactions contemplated by this Agreement.
1.26 "U.S." means the United States of America.
"U.S. person" has the meaning set forth in Regulation S under the
Securities Act and set forth on Exhibit A hereto.
SECTION II
EXCHANGE OF SHARES AND SHARE CONSIDERATION
2.1 Share Exchange. The Shareholder desires to transfer to, and the
Acquiror desires to acquire from each Shareholder, 100% of the outstanding
capital stock (50,000 shares) of the Company which is all owned by the
Shareholder, for the consideration and on the terms set forth in this Agreement.
The aggregate consideration for the Shares acquired by the Acquiror pursuant to
this Agreement will be 3,000,000 new shares of the Acquiror's Common Stock to be
issued.
2.2 Directors of the Company at Closing. After the Closing of the
transactions contemplated by this Agreement, the current directors of the
Company shall appoint Peter Wang, Ya Li, and Hainin Liu as additional members of
the Company Board. The new Board of Directors of the Company shall consist of a
total of three directors.
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Techedge-CBP Share Exchange Agreement
SECTION III
CLOSING
3.1 Closing. The closing (the "Closing") of the share exchange will occur
at the offices of Techedge Inc., in New Jersey, on April 7, 2006 or at such
later date as all of the closing conditions set forth in this Agreement have
been satisfied or waived (the "Closing Date"). At the Closing, each Shareholder
will deliver to the Acquiror certificate(s) evidencing the number of Shares held
by such Shareholder (as set forth in Exhibit B), along with executed stock
powers transferring such Shares to the Acquiror, against delivery to each
Shareholder by the Acquiror of a certificate evidencing the Acquiror Shares.
SECTION IV
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
4.1 Generally. Each Shareholder, severally and not jointly, hereby
represents and warrants to the Acquiror:
4.1.1 Accuracy of Company's Liability. The Company has no other
liability except its accounts payable in the amount of RMB 28,300 as provided to
the Acquiror in the Company's financial statement.
4.1.2 Authority. Such Shareholder has the right, power, authority
and capacity to execute and deliver this Agreement and each of the Transaction
Documents to which such Shareholder is a party, to consummate the transactions
contemplated by this Agreement and each of the Transaction Documents to which
such Shareholder is a party, and to perform such Shareholder's obligations under
this Agreement and each of the Transaction Documents to which such Shareholder
is a party. This Agreement has been, and each of the Transaction Documents to
which such Shareholder is a party will be, duly and validly authorized and
approved, executed and delivered by such Shareholder. Assuming this Agreement
and the Transaction Documents have been duly and validly authorized, executed
and delivered by the parties thereto other than such Shareholder, this Agreement
is, and as of the Closing each of the Transaction Documents to which such
Shareholder is a party will have been, duly authorized, executed and delivered
by such Shareholder and constitute or will constitute the legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with their respective terms, except as such enforcement is limited by
general equitable principles, or by bankruptcy, insolvency and other similar
Laws affecting the enforcement of creditors rights generally.
4.1.3 No Conflict. Neither the execution or delivery by such
Shareholder of this Agreement or any Transaction Document to which such
Shareholder is a party, nor the consummation or performance by such Shareholder
of the transactions contemplated hereby or thereby will, directly or indirectly,
(a) contravene, conflict with, or result in a violation of any provision of the
Organization Documents of such Shareholder (if such Shareholder is not a natural
person); (b) contravene, conflict with, constitute a default (or an event or
condition which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or acceleration of, any agreement
or instrument to which such Shareholder is a party or by which the properties or
assets of such Shareholder are bound; or (c) contravene, conflict with, or
result in a violation of, any Law or Order to which such Shareholder, or any of
the properties or assets of such Shareholder, may be subject.
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Techedge-CBP Share Exchange Agreement
4.1.4 Ownership of Shares. Such Shareholder owns, of record and
beneficially, and has good, valid and indefeasible title to and the right to
transfer to the Acquiror pursuant to this Agreement, such Shareholder's Shares
free and clear of any and all Liens. There are no options, rights, voting
trusts, stockholder agreements or any other contracts or understandings to which
such Shareholder is a party or by which such Shareholder or such Shareholder's
Shares are bound with respect to the issuance, sale, transfer, voting or
registration of such Shareholder's Shares. At the Closing, the Acquiror will
acquire good, valid and marketable title to such Shareholder's Shares free and
clear of any and all Liens.
4.1.5 Litigation. There is no pending Proceeding against such
Shareholder that challenges, or may have the effect of preventing, delaying or
making illegal, or otherwise interfering with, any of the transactions
contemplated by this Agreement and, to the knowledge of such Shareholder, no
such Proceeding has been threatened, and no event or circumstance exists that is
reasonably likely to give rise to or serve as a basis for the commencement of
any such Proceeding.
4.1.6 No Brokers or Finders. Except as disclosed in Schedule 4.1.6,
no Person has, or as a result of the transactions contemplated herein will have,
any right or valid claim against such Shareholder for any commission, fee or
other compensation as a finder or broker, or in any similar capacity, and such
Shareholder will indemnify and hold the Acquiror harmless against any liability
or expense arising out of, or in connection with, any such claim.
4.2 Investment Representations. Each Shareholder, severally and not
jointly, hereby represents and warrants to the Acquiror:
4.2.1 Acknowledgment. Each Shareholder understands and agrees that
the Acquiror Shares have not been registered under the Securities Act or the
securities laws of any state of the U.S. and that the issuance of the Acquiror
Shares is being effected in reliance upon an exemption from registration
afforded either under Section 4(2) of the Securities Act for transactions by an
issuer not involving a public offering or Regulation S for offers and sales of
securities outside the U.S.
4.2.2 Status. By its execution of this Agreement, the Shareholder,
represents and warrants to the Acquiror as indicated on its signature page to
this Agreement, either that:
(a) it is an Accredited Investor; or
(b) it is not a U.S. person.
Each Shareholder severally understands that the Acquiror Shares are
being offered and sold to such Shareholder in reliance upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of such Shareholder set forth in this Agreement, in order that
the Acquiror may determine the applicability and availability of the exemptions
from registration of the Acquiror Shares on which the Acquiror is relying.
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4.2.3 Stock Legends. Each Shareholder hereby agrees with the
Acquiror as follows:
(a) Securities Act Legend - Accredited Investors. The certificates
evidencing the Acquiror Shares issued to those Shareholders who are
Accredited Investors, and each certificate issued in transfer thereof,
will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL
AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS.
(b) Securities Act Legend - Non-U.S. Persons. The certificates
evidencing the Acquiror Shares issued to those Shareholders who are not
U.S. persons, and each certificate issued in transfer thereof, will bear
the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY
BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE
SECURITIES ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF
REGULATION S HAVE BEEN SATISFIED (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR
(3) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION
OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
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Techedge-CBP Share Exchange Agreement
(c) Other Legends. The certificates representing such Acquiror
Shares, and each certificate issued in transfer thereof, will also bear
any other legend required under any applicable Law, including, without
limitation, any U.S. state corporate and state securities law, or
contract.
(d) Opinion. No Shareholder will transfer any or all of the Acquiror
Shares pursuant to Regulation S or absent an effective registration
statement under the Securities Act and applicable state securities law
covering the disposition of such Shareholder's Acquiror Shares, without
first providing the Acquiror with an opinion of counsel (which counsel and
opinion are reasonably satisfactory to the Acquiror) to the effect that
such transfer will be made in compliance with Regulation S or will be
exempt from the registration and the prospectus delivery requirements of
the Securities Act and the registration or qualification requirements of
any applicable U.S. state securities laws.
SECTION V
REPRESENTATIONS AND WARRANTIES BY THE COMPANY
The Company represents and warrants to the Acquiror as follows:
5.1 Organization and Qualification. The Company is duly incorporated and
validly existing under the laws of the Cayman Islands, has all requisite
authority and power (corporate and other), governmental licenses,
authorizations, consents and approvals to carry on its business as presently
conducted and as contemplated to be conducted, to own, hold and operate its
properties and assets as now owned, held and operated by it, to enter into this
Agreement, to carry out the provisions hereof except where the failure to be so
organized, existing and in good standing or to have such authority or power will
not, in the aggregate, either (i) have a material adverse effect on the
business, assets or financial condition of the Company, or (ii) materially
impair the ability of the Company and the Shareholders each to perform their
material obligations under this Agreement (any of such effects or impairments, a
"Material Adverse Effect"). The Company is duly qualified, licensed or
domesticated as a foreign corporation in good standing in each jurisdiction
wherein the nature of its activities or its properties owned or leased makes
such qualification, licensing or domestication necessary, except where the
failure to be so qualified, licensed or domesticated will not have a Material
Adverse Effect. Set forth on Schedule 5.1 is a list of those jurisdictions in
which the Company presently conducts its business, owns, holds and operates its
properties and assets.
5.2 Subsidiaries. Except as set forth on Schedule 5.2, the Company does
not own directly or indirectly, any equity or other ownership interest in any
corporation, partnership, joint venture or other entity or enterprise.
5.3 Articles of Incorporation and Bylaws. The copies of the Articles of
Incorporation and bylaws of the Company (collectively, the "Organizational
Documents") that have been delivered to the Acquiror prior to the execution of
this Agreement are true and complete and have not been amended or repealed. The
Company is not in violation or breach of any of the provisions of the
Organizational Documents, except for such violations or breaches as, in the
aggregate, will not have a Material Adverse Effect.
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Techedge-CBP Share Exchange Agreement
5.4 Authorization and Validity of this Agreement. The execution, delivery
and performance by the Company of this Agreement and the recording of the
transfer of the Shares and the delivery of the Shares are within the Company's
corporate powers, have been duly authorized by all necessary corporate action,
do not require from the Board or Shareholders of the Company any consent or
approval that has not been validly and lawfully obtained, require no
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality of government that has not been validly and
lawfully obtained, filed or registered, as the case may be, except for those
that, if not obtained or made would not have a Material Adverse Effect.
5.5 No Violation. None of the execution, delivery or performance by the
Company of this Agreement or any other agreement or instrument contemplated
hereby to which the Company is a party, nor the consummation by the Company of
the transactions contemplated hereby will violate any provision of the
Organizational Documents, or violate or be in conflict with, or constitute a
default (or an event or condition which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination or acceleration
of, or result in the creation of imposition of any Lien under, any agreement or
instrument to which the Company is a party or by which the Company is or will be
bound or subject, or violate any laws.
5.6 Binding Obligations. Assuming this Agreement has been duly and validly
authorized, executed and delivered by the Acquiror, the Acquiror Shareholders
and the Shareholders, this Agreement is, and as of the Closing each other
agreement or instrument contemplated hereby to which the Company is a party,
will have been duly authorized, executed and delivered by the Company and will
be the legal, valid and binding Agreement of the Company and is enforceable
against the Company in accordance with its terms, except as such enforcement is
limited by general equitable principles, or by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors rights generally.
5.7 Capitalization and Related Matters.
5.7.1 Capitalization. The authorized capital stock of the Company
consists of 50,000 shares of Common Stock, of which 50,000 shares are issued and
outstanding. Except as set forth in Schedule 5.7.1, there are no outstanding or
authorized options, warrants, calls, subscriptions, rights (including any
preemptive rights or rights of first refusal), agreements or commitments of any
character obligating the Company to issue any shares of its Common Stock or any
other Equity Security of the Company. All issued and outstanding shares of the
Company's capital stock are duly authorized, validly issued, fully paid and
non-assessable and have not been issued in violation of any preemptive or
similar rights.
5.7.2 No Redemption Requirements. Except as set forth in Schedule
5.7.2, there are no outstanding contractual obligations (contingent or
otherwise) of the Company to retire, repurchase, redeem or otherwise acquire any
outstanding shares of capital stock of, or other ownership interests in, the
Company or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity.
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5.7.3 Duly Authorized. The exchange of the Shares has been duly
authorized and, upon delivery to the Acquiror of certificates therefor in
accordance with the terms of this Agreement, the Shares will have been validly
issued and fully paid and will be non-assessable, have the rights, preferences
and privileges specified, will be free of preemptive rights and will be free and
clear of all Liens and restrictions, other than Liens set forth on Schedule
5.7.3 or that might have been created by the Acquiror and restrictions on
transfer imposed by this Agreement and the Securities Act.
5.8 Shareholders. Exhibit B contains a true and complete list of the names
and addresses of the record and beneficial holders of all of the outstanding
Equity Securities of the Company. Except as expressly provided in this
Agreement, no Holder of Shares or any other security of the Company or any other
Person is entitled to any preemptive right, right of first refusal or similar
right as a result of the issuance of the shares or otherwise. There is no voting
trust, agreement or arrangement among any of the Holders of any Equity
Securities of the Company affecting the exercise of the voting rights of any
such Equity Securities.
5.9 Compliance with Laws and Other Instruments. Except as would not have a
Material Adverse Effect, the business and operations of the Company have been
and are being conducted in accordance with all applicable foreign, federal,
state and local laws, rules and regulations and all applicable orders,
injunctions, decrees, writs, judgments, determinations and awards of all courts
and governmental agencies and instrumentalities. Except as would not have a
Material Adverse Effect, the Company is not, and is not alleged to be, in
violation of, or (with or without notice or lapse of time or both) in default
under, or in breach of, any term or provision of the Organizational Documents or
of any indenture, loan or credit agreement, note, deed of trust, mortgage,
security agreement or other material agreement, lease, license or other
instrument, commitment, obligation or arrangement to which the Company is a
party or by which any of the Company's properties, assets or rights are bound or
affected. To the knowledge of the Company, no other party to any material
contract, agreement, lease, license, commitment, instrument or other obligation
to which the Company is a party is (with or without notice or lapse of time or
both) in default thereunder or in breach of any term thereof. The Company is not
subject to any obligation or restriction of any kind or character, nor is there,
to the knowledge of the Company, any event or circumstance relating to the
Company that materially and adversely affects in any way its business,
properties, assets or prospects or that prohibits the Company from entering into
this Agreement or would prevent or make burdensome its performance of or
compliance with all or any part of this Agreement or the consummation of the
transactions contemplated hereby or thereby.
5.10 Certain Proceedings. There is no pending Proceeding that has been
commenced against the Company and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated in this Agreement. To the Company's knowledge, no such
Proceeding has been threatened.
5.11 No Brokers or Finders. Except as disclosed in Schedule 5.11, no
person has, or as a result of the transactions contemplated herein will have,
any right or valid claim against the Company for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, and the Company
will indemnify and hold the Acquiror harmless against any liability or expense
arising out of, or in connection with, any such claim.
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Techedge-CBP Share Exchange Agreement
5.12 Title to and Condition of Properties. The Company owns or holds under
valid leases or other rights to use all real property, plants, machinery and
equipment necessary for the conduct of the business of the Company as presently
conducted, except where the failure to own or hold such property, plants,
machinery and equipment would not have a Material Adverse Effect on the Company.
The material buildings, plants, machinery and equipment necessary for the
conduct of the business of the Company as presently conducted are structurally
sound, are in good operating condition and repair and are adequate for the uses
to which they are being put, in each case, taken as a whole, and none of such
buildings, plants, machinery or equipment is in need of maintenance or repairs,
except for ordinary, routine maintenance and repairs that are not material in
nature or cost.
5.13 Board Recommendation. The Board, at a meeting duly called and held,
has by unanimous vote of those directors present (who constituted 100% of the
directors then in office), determined that this Agreement and the transactions
contemplated by this Agreement, are advisable and in the best interests of the
Company's Shareholders.
SECTION VI
REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR
The Acquiror represents and warrants to the Shareholders and the Company
as follows:
6.1 Organization and Qualification. Each of the Acquiror Companies is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite authority and power (corporate
and other), governmental licenses, authorizations, consents and approvals to
carry on its business as presently conducted and to own, hold and operate its
properties and assets as now owned, held and operated by it, except where the
failure to be so organized, existing and in good standing, or to have such
authority and power, governmental licenses, authorizations, consents or
approvals would not have a Material Adverse Effect. Each of the Acquiror
Companies is duly qualified, licensed or domesticated as a foreign corporation
in good standing in each jurisdiction wherein the nature of its activities or
its properties owned, held or operated makes such qualification, licensing or
domestication necessary, except where the failure to be so duly qualified,
licensed or domesticated and in good standing would not have a Material Adverse
Effect. Schedule 6.1 sets forth a true, correct and complete list of each
Acquiror Company's jurisdiction of organization and each other jurisdiction in
which such Acquiror Company presently conducts its business or owns, holds and
operates its properties and assets.
6.2 Authorization. The Acquiror has all requisite authority and power
(corporate and other), governmental licenses, authorizations, consents and
approvals to enter into this Agreement and each of the Transaction Documents to
which the Acquiror is a party, to consummate the transactions contemplated by
this Agreement and each of the Transaction Documents to which the Acquiror is a
party and to perform its obligations under this Agreement and each of the
Transaction Documents to which the Acquiror is a party. The execution, delivery
and performance by the Acquiror of this Agreement and each of the Transaction
Documents to which the Acquiror is a party have been duly authorized by all
necessary corporate action and do not require from the Acquiror Board or the
stockholders of the Acquiror any consent or approval that has not been validly
and lawfully obtained.
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Techedge-CBP Share Exchange Agreement
6.3 No Violation. Neither the execution or delivery by the Acquiror of
this Agreement or any Transaction Document to which the Acquiror is a party, nor
the consummation or performance by the Acquiror of the transactions contemplated
hereby or thereby will, directly or indirectly, (a) contravene, conflict with,
or result in a violation of any provision of the Organizational Documents of any
Acquiror Company; (b) contravene, conflict with, constitute a default (or an
event or condition which, with notice or lapse of time or both, would constitute
a default) under, or result in the termination or acceleration of, or result in
the imposition or creation of any Lien under, any agreement or instrument to
which any Acquiror Company is a party or by which the properties or assets of
any Acquiror Company are bound; (c) contravene, conflict with, or result in a
violation of, any Law or Order to which any Acquiror Company, or any of the
properties or assets owned or used by any Acquiror Company, may be subject; or
(d) contravene, conflict with, or result in a violation of, the terms or
requirements of, or give any Governmental Authority the right to revoke,
withdraw, suspend, cancel, terminate or modify, any licenses, permits,
authorizations, approvals, franchises or other rights held by any Acquiror
Company or that otherwise relate to the business of, or any of the properties or
assets owned or used by, any Acquiror Company, except, in the case of clause
(b), (c), or (d), for any such contraventions, conflicts, violations, or other
occurrences as would not have a Material Adverse Effect.
6.4 Binding Obligations. Assuming this Agreement and the Transaction
Documents have been duly and validly authorized, executed and delivered by the
parties thereto other than the Acquiror, this Agreement has been, and as of the
Closing each of the Transaction Documents to which the Acquiror is a party will
be, duly authorized, executed and delivered by the Acquiror and constitutes or
will constitute, as the case may be, the legal, valid and binding obligations of
the Acquiror, enforceable against the Acquiror in accordance with their
respective terms, except as such enforcement is limited by general equitable
principles, or by bankruptcy, insolvency and other similar Laws affecting the
enforcement of creditors rights generally.
6.5 Securities Laws. Assuming the accuracy of the representations and
warranties of the Shareholders contained in Section 4 and Exhibits E and F, the
issuance of the Acquiror Shares pursuant to this Agreement are and will be (a)
exempt from the registration and prospectus delivery requirements of the
Securities Act, (b) have been registered or qualified (or are exempt from
registration and qualification) under the registration permit or qualification
requirements of all applicable state securities laws, and (c) accomplished in
conformity with all other applicable federal and state securities laws.
6.6 Capitalization and Related Matters.
6.6.1 Capitalization. The authorized capital stock of the Acquiror
consists of 100,000,000 shares of the Acquiror's Common Stock, of which
82,455,000 shares are issued and outstanding, and 1,000,000 shares of preferred
stock, none of which are issued and outstanding. All issued and outstanding
shares of the Acquiror's Common Stock are duly authorized, validly issued, fully
paid and nonassessable, and have not been issued in violation of any preemptive
or similar rights. On the Closing Date, the Acquiror will have sufficient
authorized and unissued Acquiror's Common Stock to consummate the transactions
contemplated hereby. The issuance of all of the shares of Acquiror's Common
Stock described in this Section 6.6.1 have been in compliance with U.S. federal
and state securities laws.
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Techedge-CBP Share Exchange Agreement
6.6.2 No Redemption Requirements. Except as set forth in Schedule
6.6.2 or in the SEC Documents, there are no outstanding contractual obligations
(contingent or otherwise) of the Acquiror to retire, repurchase, redeem or
otherwise acquire any outstanding shares of capital stock of, or other ownership
interests in, the Acquiror or to provide funds to or make any investment (in the
form of a loan, capital contribution or otherwise) in any other Person.
6.6.3 Duly Authorized. The issuance of the Acquiror Shares has been
duly authorized and, upon delivery to the Shareholders of certificates therefor
in accordance with the terms of this Agreement, the Acquiror Shares will have
been validly issued and fully paid, and will be non-assessable, have the rights,
preferences and privileges specified, will be free of preemptive rights and will
be free and clear of all Liens and restrictions, other than Liens created by the
Shareholders and restrictions on transfer imposed by this Agreement and the
Securities Act.
6.7 Compliance with Laws. Except as would not have a Material Adverse
Effect, the business and operations of each Acquiror Company have been and are
being conducted in accordance with all applicable Laws and Orders. Except as
would not have a Material Adverse Effect, no Acquiror Company has received
notice of any violation (or any Proceeding involving an allegation of any
violation) of any applicable Law or Order by or affecting such Acquiror Company
and, to the knowledge of the Acquiror, no Proceeding involving an allegation of
violation of any applicable Law or Order is threatened or contemplated. Except
as would not have a Material Adverse Effect, no Acquiror Company is subject to
any obligation or restriction of any kind or character, nor is there, to the
knowledge of the Acquiror, any event or circumstance relating to any Acquiror
Company that materially and adversely affects in any way its business,
properties, assets or prospects or that prohibits the Acquiror from entering
into this Agreement or would prevent or make burdensome its performance of or
compliance with all or any part of this Agreement or the consummation of the
transactions contemplated hereby.
6.8 Certain Proceedings. There is no pending Proceeding that has been
commenced against the Acquiror and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement. To the knowledge of the Acquiror,
no such Proceeding has been threatened.
6.9 No Brokers or Finders. Except as disclosed in Schedule 6.11, no Person
has, or as a result of the transactions contemplated herein will have, any right
or valid claim against any Acquiror Company for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, and the Acquiror
will indemnify and hold the Company harmless against any liability or expense
arising out of, or in connection with, any such claim.
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Techedge-CBP Share Exchange Agreement
6.10 Litigation; Orders. Except as set forth on Schedule 6.10, there is no
Proceeding (whether federal, state, local or foreign) pending or, to the
knowledge of the Acquiror, threatened against or affecting any Acquiror Company
or any Acquiror Company's properties, assets, business or employees. To the
knowledge of the Acquiror, there is no fact that might result in or form the
basis for any such Proceeding. No Acquiror Company is subject to any Orders.
6.11 Title to and Condition of Properties. Except as would not have a
Material Adverse Effect, each Acquiror Company owns (with good and marketable
title in the case of real property) or holds under valid leases or other rights
to use all real property, plants, machinery, equipment and other personal
property necessary for the conduct of its business as presently conducted, free
and clear of all Liens, except Permitted Liens. The material buildings, plants,
machinery and equipment necessary for the conduct of the business of each
Acquiror Company as presently conducted are structurally sound, are in good
operating condition and repair and are adequate for the uses to which they are
being put, and none of such buildings, plants, machinery or equipment is in need
of maintenance or repairs, except for ordinary, routine maintenance and repairs
that are not material in nature or cost.
6.12 SEC Documents; Financial Statements. Except as set forth on Schedule
6.12, the Acquiror has filed all reports required to be filed by it under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
three years preceding the date hereof (or such shorter period as the Acquiror
was required by law to file such material) (the foregoing materials being
collectively referred to herein as the "SEC Documents") and, while not having
filed all such SEC Documents prior to the expiration of any extension(s), is
nevertheless current with respect to its Exchange Act filing requirements. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statement therein, in light of the circumstances under which
they were made, not misleading. All material agreements to which the Acquiror is
a party or to which the property or assets of the Acquiror are subject have been
appropriately filed as exhibits to the SEC Documents as and to the extent
required under the Exchange Act. The financial statements of the Acquiror
included in the SEC Documents comply in all material respects with applicable
accounting requirement and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing, were prepared in accordance
with GAAP applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto, or, in the case of unaudited statements
as permitted by Form 10-Q of the Commission), and fairly present in all material
respects (subject in the case of unaudited statements, to normal, recurring
audit adjustments) the financial position of the Acquiror as at the dates
thereof and the results of its operations and cash flows for the periods then
ended. The Acquiror's Common Stock is listed on the OTC Bulletin Board, and the
Acquiror is not aware of any facts which would make the Acquiror's Common Stock
ineligible for quotation on the OTC Bulletin Board.
6.13 Board Recommendation. The Acquiror Board, at a meeting duly called
and held, has determined that this Agreement and the transactions contemplated
by this Agreement are advisable and in the best interests of the Acquiror's
stockholders and has duly authorized this Agreement and the transactions
contemplated by this Agreement.
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Techedge-CBP Share Exchange Agreement
SECTION VII
COVENANTS OF THE COMPANY AND THE SHAREHOLDERS
7.1 Access and Investigation. Between the date of this Agreement and the
Closing Date, the Company will, and will cause each Company Subsidiary to, (a)
afford the Acquiror and its agents, advisors and attorneys during normal
business hours, full and free access to each Acquired Company's personnel,
properties, contracts, books and records, and other documents and data, (b)
furnish the Acquiror and its agents, advisors and attorneys with copies of all
such contracts, books and records, and other existing documents and data as the
Acquiror may reasonably request, and (c) furnish the Acquiror and its agents,
advisors and attorneys with such additional financial, operating, and other data
and information as the Acquiror may reasonably request.
7.2 Operation of the Business of the Company.
7.2.1 Between the date of this Agreement and the Closing Date, the
Company will, and will cause each Company Subsidiary to:
(a) conduct its business only in the ordinary course of business;
(b) use its best efforts to preserve intact its current business
organization and business relationships, including, without limitation,
relationships with suppliers, customers, landlords, creditors, officers,
employees and agents; and
(c) otherwise report periodically to the Acquiror concerning the
status of its business, operations, and finances.
7.3 No Transfers of Capital Stock.
7.3.1 Between the date of this Agreement and the Closing Date, the
Shareholders shall not assign, transfer, mortgage, pledge or otherwise dispose
of any or all of the Shares (or any interest therein) or grant any Person the
option or right to acquire such Shares (or any interest therein).
7.3.2 Between the date of this Agreement and the Closing Date, the
Company shall not, and shall cause each Company Subsidiary not to, assign,
transfer, mortgage, pledge or otherwise dispose of any or all of the capital
stock of any Acquired Company (or any interest therein) or grant any Person the
option or right to acquire the capital stock of any Acquired Company (or any
interest therein).
7.4 Required Filings and Approvals. As promptly as practicable after the
date of this Agreement, the Company will, and will cause each Company Subsidiary
to, make all filings required to be made by it in order to consummate the
transactions contemplated by this Agreement, if applicable. Between the date of
this Agreement and the Closing Date, the Company will, and will cause each
Company Subsidiary to, (a) cooperate with the Acquiror with respect to all
filings that the Acquiror elects to make or is required to make in connection
with the transactions contemplated by this Agreement, and (b) cooperate with the
Acquiror in obtaining any consents or approvals required to be obtained by the
Acquiror in connection herewith.
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Techedge-CBP Share Exchange Agreement
7.5 Notification. Between the date of this Agreement and the Closing Date,
the Company and the Shareholders will promptly notify the Acquiror in writing if
the Company, the Shareholders or any Company Subsidiary becomes aware of any
fact or condition that causes or constitutes a breach of any of the
representations and warranties of the Company or the Shareholders, as the case
may be, as of the date of this Agreement, or if the Company, any Shareholder or
any Company Subsidiary becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. Should any such fact or
condition require any change in the Schedules to this Agreement if the Schedules
to the Agreement were dated the date of the occurrence or discovery of any such
fact or condition, the Company or the Shareholders, as the case may be, will
promptly deliver to the Acquiror a supplement to the Schedules to the Agreement
specifying such change; provided, however, that such delivery shall not
materially adversely affect any rights of the Acquiror set forth herein,
including the right of the Acquiror to seek a remedy in damages for losses
incurred as a result of such supplemented disclosure. During the same period,
the Company and the Shareholders will, and will cause each Company Subsidiary
to, promptly notify the Acquiror of the occurrence of any breach of any covenant
of the Company or the Shareholders in this Section 7 or of the occurrence of any
event that may make the satisfaction of the conditions in Section 9 impossible
or unlikely.
7.6 Closing Conditions. Between the date of this Agreement and the Closing
Date, each of the Company and the Shareholders will use its commercially
reasonable efforts to cause the conditions in Section 9 to be satisfied.
SECTION VIII
COVENANTS OF THE ACQUIROR
8.1 Required Filings and Approvals. As promptly as practicable after the
date of this Agreement, the Acquiror will, and will cause each of the Acquiror
Subsidiaries to, make all filings legally required to be made by it to
consummate the transactions contemplated by this Agreement. Between the date of
this Agreement and the Closing Date, the Acquiror will cooperate with the
Company with respect to all filings that the Company is legally required to make
in connection with the transactions contemplated hereby.
8.2 Notification. Between the date of this Agreement and the Closing Date,
the Acquiror will promptly notify the Company and the Shareholders in writing if
the Acquiror becomes aware of any fact or condition that causes or constitutes a
breach of any of the representations and warranties of the Acquiror, as of the
date of this Agreement, or if the Acquiror becomes aware of the occurrence after
the date of this Agreement of any fact or condition that would (except as
expressly contemplated by this Agreement) cause or constitute a breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition. Should any
such fact or condition require any change in the Schedules to this Agreement if
the Schedules to the Agreement were dated the date of the occurrence or
discovery of any such fact or condition, the Acquiror will promptly deliver to
the Company and the Shareholders a supplement to the Schedules to the Agreement
specifying such change; provided, however, that such delivery shall not
materially adversely affect any rights of the Shareholders set forth herein,
including the right of the Shareholders to seek a remedy in damages for losses
incurred as a result of such supplemented disclosure. During the same period,
the Acquiror will promptly notify the Company and the Shareholders of the
occurrence of any breach of any covenant of the Acquiror in this Section 8 or of
the occurrence of any event that may make the satisfaction of the conditions in
Section 10 impossible or unlikely.
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Techedge-CBP Share Exchange Agreement
8.3 Closing Conditions. Between the date of this Agreement and the Closing
Date, the Acquiror will use commercially reasonable efforts to cause the
conditions in Section 10 to be satisfied.
8.4 Rule 144 Reporting. With a view to making available to the Acquiror's
stockholders the benefit of certain rules and regulations of the Commission
which may permit the sale of the Acquiror Common Stock to the public without
registration, from and after the Closing Date, the Acquiror agrees to:
8.4.1 Make and keep public information available, as those terms are
understood and defined in Rule 144; and
8.4.2 File with the Commission, in a timely manner, all reports and
other documents required of the Acquiror under the Exchange Act.
8.5 SEC Documents. From and after the Closing Date, in the event the
Commission notifies the Acquiror of its intent to review any SEC Document filed
prior to Closing or the Acquiror receives any oral or written comments from the
Commission with respect to any SEC Document filed prior to Closing, the Acquiror
shall promptly notify the Acquiror Shareholders and the Acquiror Shareholders
shall fully cooperate with the Acquiror.
SECTION IX
CONDITIONS PRECEDENT TO THE ACQUIROR'S
OBLIGATION TO CLOSE
The Acquiror's obligation to acquire the Shares and to take the other
actions required to be taken by the Acquiror at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Acquiror, in whole or in part):
9.1 Accuracy of Representations. The representations and warranties of the
Company and the Shareholders set forth in this Agreement or in any Schedule or
certificate delivered pursuant hereto that are not qualified as to materiality
shall be true and correct in all material respects as of the date of this
Agreement, and shall be deemed repeated as of the Closing Date and shall then be
true and correct in all material respects, except to the extent a representation
or warranty is expressly limited by its terms to another date and without giving
effect to any supplemental Schedule. The representations and warranties of the
Company and the Shareholders set forth in this Agreement or in any Schedule or
certificate delivered pursuant hereto that are qualified as to materiality shall
be true and correct in all respects as of the date of this Agreement, and shall
be deemed repeated as of the Closing Date and shall then be true and correct in
all respects, except to the extent a representation or warranty is expressly
limited by its terms to another date and without giving effect to any
supplemental Schedule.
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Techedge-CBP Share Exchange Agreement
9.2 Performance by the Company and Shareholder.
9.2.1 All of the covenants and obligations that the Company and
Shareholders are required to perform or to comply with pursuant to this
Agreement at or prior to the Closing (considered collectively), and each of
these covenants and obligations (considered individually), must have been duly
performed and complied with in all material respects.
9.2.2 Each document required to be delivered by the Company and the
Shareholder pursuant to this Agreement at or prior to Closing must have been
delivered.
9.3 No Force Majeur Event. Since December 31, 2003, there shall not have
been any delay, error, failure or interruption in the conduct of the business of
any Acquired Company, or any loss, injury, delay, damage, distress, or other
casualty, due to force majeur including but not limited to (a) acts of God; (b)
fire or explosion; (c) war, acts of terrorism or other civil unrest; or (d)
national emergency.
9.4 Certificate of Officer. The Company will have delivered to the
Acquiror a certificate, dated the Closing Date, executed by an officer of the
Company, certifying the satisfaction of the conditions specified in Sections
9.1, 9.2 and 9.3.
9.5 Certificate of Shareholders. The Shareholder will have delivered to
the Acquiror a certificate, dated the Closing Date, executed by such
Shareholder, if a natural person, or an authorized officer of the Shareholder,
if an entity, certifying the satisfaction of the conditions specified in
Sections 9.1 and 9.2.
9.6 Consents.
9.6.1 All material consents, waivers, approvals, authorizations or
orders required to be obtained, and all filings required to be made, by the
Company and/or the Shareholders for the authorization, execution and delivery of
this Agreement and the consummation by them of the transactions contemplated by
this Agreement, shall have been obtained and made by the Company or the
Shareholders, as the case may be, except where the failure to receive such
consents, waivers, approvals, authorizations or orders or to make such filings
would not have a Material Adverse Effect on the Company or the Acquiror.
9.7 Documents. The Company and the Shareholder must have caused the
following documents to be delivered to the Acquiror and/or the Escrow Agent:
9.7.1 share certificates evidencing the number of Shares held by
each Shareholder (as set forth in Exhibit A), along with executed stock powers
transferring such Shares to the Acquiror;
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Techedge-CBP Share Exchange Agreement
9.7.2 a Secretary's Certificate of the Company, dated the Closing
Date, certifying attached copies of (A) the Organizational Documents of the
Company and each Company Subsidiary, (B) the resolutions of the Company Board
and the Shareholders approving this Agreement and the transactions contemplated
hereby; and (C) the incumbency of each authorized officer of the Company signing
this Agreement and any other agreement or instrument contemplated hereby to
which the Company is a party;
9.7.3 a certified certificate of good standing, or equivalent
thereof, of the Company;
9.7.4 each of the Transaction Documents to which the Company and/or
the Shareholders is a party, duly executed; and
9.7.5 such other documents as the Acquiror may reasonably request
for the purpose of (i) evidencing the accuracy of any of the representations and
warranties of the Company and the Shareholders pursuant to Section 9.1, (ii)
evidencing the performance of, or compliance by the Company and the Shareholders
with, any covenant or obligation required to be performed or complied with by
the Company or the Shareholders, as the case may be, (iii) evidencing the
satisfaction of any condition referred to in this Section 9, or (iv) otherwise
facilitating the consummation or performance of any of the transactions
contemplated by this Agreement.
9.8 No Proceedings. Since the date of this Agreement, there must not have
been commenced or threatened against the Acquiror, the Company or any
Shareholder, or against any Affiliate thereof, any Proceeding (which Proceeding
remains unresolved as of the Closing Date) (a) involving any challenge to, or
seeking damages or other relief in connection with, any of the transactions
contemplated by this Agreement, or (b) that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of the transactions
contemplated by this Agreement.
9.9 No Claim Regarding Stock Ownership or Consideration. There must not
have been made or threatened by any Person any claim asserting that such Person
(a) is the holder of, or has the right to acquire or to obtain beneficial
ownership of the Shares or any other stock, voting, equity, or ownership
interest in, the Company, or (b) is entitled to all or any portion of the
Acquiror Shares.
SECTION X
CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY
AND THE SHAREHOLDERS TO THE CLOSING
The Shareholders' obligation to transfer the Shares and the obligations of
the Company to take the other actions required to be taken by the Company at the
Closing are subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by the Company and the
Shareholders, in whole or in part):
10.1 Accuracy of Representations. The representations and warranties of
the Acquiror and Acquiror Shareholders set forth in this Agreement or in any
Schedule or certificate delivered pursuant hereto that are not qualified as to
materiality shall be true and correct in all material respects as of the date of
this Agreement, and shall be deemed repeated as of the Closing Date and shall
then be true and correct in all material respects, except to the extent a
representation or warranty is expressly limited by its terms to another date and
without giving effect to any supplemental Schedule. The representations and
warranties of the Acquiror and Acquiror Shareholders set forth in this Agreement
or in any Schedule or certificate delivered pursuant hereto that are qualified
as to materiality shall be true and correct in all respects as of the date of
this Agreement, and shall be deemed repeated as of the Closing Date and shall
then be true and correct in all respects, except to the extent a representation
or warranty is expressly limited by its terms to another date and without giving
effect to any supplemental Schedule.
18
10.2 Performance by the Acquiror.
10.2.1 All of the covenants and obligations that the Acquiror and
Acquiror Shareholders are required to perform or to comply with pursuant to this
Agreement at or prior to the Closing (considered collectively), and each of
these covenants and obligations (considered individually), must have been
performed and complied with in all respects.
10.2.2 Each document required to be delivered by the Acquiror and
Acquiror Shareholders pursuant to this Agreement must have been delivered.
10.3 No Force Majeur Event. Since December 31, 2003, there shall not have
been any delay, error, failure or interruption in the conduct of the business of
any Acquiror Company, or any loss, injury, delay, damage, distress, or other
casualty, due to force majeur including but not limited to (a) acts of God; (b)
fire or explosion; (c) war, acts of terrorism or other civil unrest; or (d)
national emergency.
10.4 Certificate of Officer. The Acquiror will have delivered to the
Company a certificate, dated the Closing Date, executed by an officer of the
Acquiror, certifying the satisfaction of the conditions specified in Sections
10.1, 10.2. and 10.3.
10.5 Consents.
10.5.1 All material consents, waivers, approvals, authorizations or
orders required to be obtained, and all filings required to be made, by the
Acquiror for the authorization, execution and delivery of this Agreement and the
consummation by it of the transactions contemplated by this Agreement, shall
have been obtained and made by the Acquiror, except where the failure to receive
such consents, waivers, approvals, authorizations or orders or to make such
filings would not have a Material Adverse Effect on the Company or the Acquiror.
10.6 Documents. The Acquiror must have caused the following documents to
be delivered to the Company and/or the Shareholders:
10.6.1 share certificates evidencing each Shareholder's pro rata
share of the Closing Acquiror Shares (as set forth in Exhibit B);
19
10.6.2 a Secretary's Certificate, dated the Closing Date certifying
attached copies of (A) the resolutions of the Acquiror Board approving this
Agreement and the transactions contemplated hereby;
10.6.3 each of the Transaction Documents to which the Acquiror is a
party, duly executed; and
10.6.4 such other documents as the Company may reasonably request
for the purpose of (i) evidencing the accuracy of any representation or warranty
of the Acquiror pursuant to Section 10.1, (ii) evidencing the performance by the
Acquiror of, or the compliance by the Acquiror with, any covenant or obligation
required to be performed or complied with by the Acquiror, (iii) evidencing the
satisfaction of any condition referred to in this Section 10, or (iv) otherwise
facilitating the consummation of any of the transactions contemplated by this
Agreement.
10.7 No Proceedings. Since the date of this Agreement, there must not have
been commenced or threatened against the Acquiror, the Company or any
Shareholder, or against any Affiliate thereof, any Proceeding (which Proceeding
remains unresolved as of the Closing Date) (a) involving any challenge to, or
seeking damages or other relief in connection with, any of the transactions
contemplated hereby, or (b) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the transactions
contemplated hereby.
SECTION XI
TERMINATION
11.1 Termination Events. This Agreement may, by notice given prior to or
at the Closing, be terminated:
11.1.1 by mutual consent of the Acquiror and the Shareholders
(acting jointly);
11.1.2 by the Acquiror, if any of the conditions in Section 9 have
not been satisfied as of the Closing Date or if satisfaction of such a condition
is or becomes impossible (other than through the failure of the Acquiror to
comply with its obligations under this Agreement) and the Acquiror has not
waived such condition on or before the Closing Date; or (ii) by the Shareholders
(acting jointly), if any of the conditions in Section 10 have not been satisfied
as of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of any Shareholder to comply with its
obligations under this Agreement) and the Shareholders (acting jointly) have not
waived such condition on or before the Closing Date;
11.1.3 by either the Acquiror or the Shareholders (acting jointly),
if there shall have been entered a final, nonappealable order or injunction of
any Governmental Authority restraining or prohibiting the consummation of the
transactions contemplated hereby;
11.1.4 by the Acquiror, if, prior to the Closing Date, the Company
or any Shareholder is in material breach of any representation, warranty,
covenant or agreement herein contained and such breach shall not be cured within
10 days of the date of notice of default served by the Acquiror claiming such
breach; provided, however, that the right to terminate this Agreement pursuant
to this Section 11.1.4 shall not be available to the Acquiror if the Acquiror is
in material breach of this Agreement at the time notice of termination is
delivered;
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Techedge-CBP Share Exchange Agreement
11.1.5 by the Shareholders (acting jointly), if, prior to the
Closing Date, the Acquiror is in material breach of any representation,
warranty, covenant or agreement herein contained and such breach shall not be
cured within 10 days of the date of notice of default served by the Shareholders
claiming such breach or, if such breach is not curable within such 10 day
period, such longer period of time as is necessary to cure such breach;
provided, however, that the right to terminate this Agreement pursuant to this
Section 11.1.6 shall not be available to the Shareholders (acting jointly) if
any Shareholder is in material breach of this Agreement at the time notice of
termination is delivered.
SECTION XII
REGISTRATION RIGHTS
12.1 "Piggy-back" Rights. If the Company shall determine to proceed with
the actual preparation and filing of a registration statement under the
Securities Act in connection with the proposed offer and sale of any of its
securities by it or any of its security holders (other than a registration
statement on Form S-4, S-8 or other limited purpose form), the Company will give
written notice of its determination to the Shareholder. Upon the written request
from Shareholder within ten (10) days after receipt of any such notice from the
Company, the Company will, except as herein provided, cause all the Shares to be
included in such registration statement. Nothing herein shall prevent the
Company from, at any time, abandoning or delaying any registration. If any
registration pursuant to this Section 12.1 shall be underwritten in whole or in
part, the Company may require that the Shares requested for inclusion pursuant
to this Section 12.1 be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters. In
such event, the Shareholder shall, if requested by the underwriters, execute an
underwriting agreement containing customary representations and warranties by
selling stockholders and a lock-up on shares not being sold. If in the good
faith judgment of the managing underwriter of such public offering the inclusion
of all of the Shares originally covered by a request for registration (the
"Requested Stock") would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of stock
offered by the Company, the number of shares of Requested Stock otherwise to be
included in the underwritten public offering may be reduced pro rata (by number
of shares) among the holders thereof requesting such registration or excluded in
their entirety if so required by the underwriter. To the extent only a portion
of the Requested Stock is included in the underwritten public offering, those
shares of Requested Stock which are thus excluded from the underwritten public
offering shall be withheld from the market by the holders thereof for a period,
not to exceed 120 days, which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering. The obligation of
the Company under this Section 4.1 shall not apply to Shares that at such time
are eligible for immediate resale pursuant to Rule 144(k) under the Securities
Act.
12.2 Registration Procedures. The Company will, pursuant to the provisions
of Sections 12.1:
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Techedge-CBP Share Exchange Agreement
12.2.1 Prepare and file with the SEC a registration statement with
respect to such securities, and use its best efforts to cause such registration
statement to become and remain effective for at least 120 days;
12.2.2 Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for at least 120
days;
12.2.3 Furnish to the Shareholder copies of the final prospectus in
order to facilitate the public offering of the Shares;
12.2.4 Advise the Shareholders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
The Shareholder shall cooperate with the Company in providing the
information necessary to effect the registration of the Shares, including
completion of customary questionnaires.
12.3 Expenses.
12.3.1 With respect to any registration required pursuant to Section
12.1 hereof, all fees, costs and expenses of and incidental to such
registration, inclusion and public offering (as specified in paragraph (b)
below) in connection therewith shall be borne by the Company, provided, however,
that the Shareholder shall bear its pro rata share of any underwriting discount
and commissions and transfer taxes and the cost of its own counsel.
12.3.2 The fees, costs and expenses of registration to be borne by
the Company as provided in paragraph (a) above shall include, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified (except as provided in 12.3.1 above). Fees and
disbursements of counsel and accountants for the Shareholder and any other
expenses incurred by the Shareholder not expressly included above shall be borne
by the Shareholder.
SECTION XIII
GENERAL PROVISIONS
13.1 Expenses. Except as otherwise expressly provided in this Agreement,
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the transactions contemplated by this Agreement, including all fees and
expenses of agents, representatives, counsel, and accountants. In the event of
termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a breach of
this Agreement by another party.
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Techedge-CBP Share Exchange Agreement
13.2 Public Announcements. The Acquiror shall promptly issue a press
release disclosing the transactions contemplated hereby. Between the date of
this Agreement and the Closing Date, the Company and the Acquiror shall consult
with each other in issuing any other press releases or otherwise making public
statements or filings and other communications with the Commission or any
regulatory agency or stock market or trading facility with respect to the
transactions contemplated hereby and neither party shall issue any such press
release or otherwise make any such public statement, filings or other
communications without the prior written consent of the other, which consent
shall not be unreasonably withheld or delayed, except that no prior consent
shall be required if such disclosure is required by law, in which case the
disclosing party shall provide the other party with prior notice of such public
statement, filing or other communication and shall incorporate into such public
statement, filing or other communication the reasonable comments of the other
party.
13.3 Confidentiality.
13.3.1 Subsequent to the date of this Agreement, the Acquiror, the
Acquiror Shareholders the Shareholders and the Company will maintain in
confidence, and will cause their respective directors, officers, employees,
agents, and advisors to maintain in confidence, any written, oral, or other
information obtained in confidence from another party in connection with this
Agreement or the transactions contemplated by this Agreement, unless (a) such
information is already known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of such party, (b) the use of such information is necessary or appropriate in
making any required filing with the Commission, or obtaining any consent or
approval required for the consummation of the transactions contemplated by this
Agreement, or (c) the furnishing or use of such information is required by or
necessary or appropriate in connection with legal proceedings.
13.3.2 In the event that any party is required to disclose any
information of another party pursuant to clause (b) or (c) of Section 13.3.1,
the party requested or required to make the disclosure (the "disclosing party")
shall provide the party that provided such information (the "providing party")
with prompt notice of any such requirement so that the providing party may seek
a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Section 13.3. If, in the absence of a protective order or
other remedy or the receipt of a waiver by the providing party, the disclosing
party is nonetheless, in the opinion of counsel, legally compelled to disclose
the information of the providing party, the disclosing party may, without
liability hereunder, disclose only that portion of the providing party's
information which such counsel advises is legally required to be disclosed,
provided that the disclosing party exercises its reasonable efforts to preserve
the confidentiality of the providing party's information, including, without
limitation, by cooperating with the providing party to obtain an appropriate
protective order or other relief assurance that confidential treatment will be
accorded the providing party's information.
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Techedge-CBP Share Exchange Agreement
13.3.3 If the transactions contemplated by this Agreement are not
consummated, each party will return or destroy as much of such written
information as the other party may reasonably request.
13.4 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), or (c) when received
by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by written notice to the other parties):
If to Company: Attention:
Telephone No.:
Facsimile No.:
If to Shareholder:
Attention:
Telephone No.:
Facsimile No.:
If to Acquiror:
Techedge, Inc. Attention: Ya Li, Chief Financial Officer
33 Wood Avenue South, 7F Telephone No.: 917-806-6474
Iselin, New Jersey 08830 Facsimile No.: 201-656-8273
13.5 Arbitration. Any dispute or controversy under this Agreement shall be
settled exclusively by arbitration in the State of Delaware, in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitration award in any court having jurisdiction.
13.6 Further Assurances. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
13.7 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
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Techedge-CBP Share Exchange Agreement
13.8 Entire Agreement and Modification. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party against whom the enforcement of such
amendment is sought.
13.9 Assignments, Successors, and No Third-Party Rights. No party may
assign any of its rights under this Agreement without the prior consent of the
other parties. Subject to the preceding sentence, this Agreement will apply to,
be binding in all respects upon, and inure to the benefit of and be enforceable
by the respective successors and permitted assigns of the parties. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
13.10 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
13.11 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
13.12 Governing Law. This Agreement will be governed by the laws of the
State of Delaware without regard to conflicts of laws principles.
13.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
25
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed and delivered this Share
Exchange Agreement as of the date first written above.
ACQUIROR:
TECHEDGE, INC.
Signed:
----------------------------
Printed name:
-----------------------
Title:
------------------------------
COMPANY: SHAREHOLDER:
China Biopharma Limited. Zhu Xiaodong
Signed: Signed:
---------------------------- --------------------------
Printed name: Printed name:
----------------------- --------------------
Title:
------------------------------
Techedge-CBP Share Exchange Agreement
COUNTERPART SIGNATURE PAGE
(FOR ISSUANCES PURSUANT TO REGULATION S)
IN WITNESS WHEREOF, the parties have executed and delivered this Share
Exchange Agreement as of the date first written above.
ENTITY NAME:
By:
-----------------------------------
Name: Zhu, Xiaodong
OFFSHORE DELIVERY INSTRUCTIONS:
- -------------------------------
Sinoquest Management Limited
- ----------------------------------
PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
Attn: Zhu Xiaodong
------------------------------
Address: 23 Jiaogong Lu, Bainaohui 1301
------------------------------
Hangzhou, 310013 China
------------------------------
------------------------------
Phone No. 86-1358-816-4383
------------------------------
Facsimile No.86-571-8577-5817
------------------------------
27
Techedge-CBP Share Exchange Agreement
EXHIBIT A
DEFINITION OF "U.S. PERSON"
(1) "U.S. person" (as defined in Regulation S) means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated under the
laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the United
States;
(vi) Any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit
or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States;
and
(viii) Any partnership or corporation if: (A) organized or incorporated
under the laws of any foreign jurisdiction; and (B) formed by a U.S.
person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule
501(a)) who are not natural persons, estates or trusts.
(2) Notwithstanding paragraph (1) above, any discretionary account or similar
account (other than an estate or trust) held for the benefit or account of
a non-U.S. person by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United States shall
not be deemed a "U.S. person."
(3) Notwithstanding paragraph (1), any estate of which any professional
fiduciary acting as executor or administrator is a U.S. person shall not
be deemed a U.S. person if:
(i) An executor or administrator of the estate who is not a U.S. person
has sole or shared investment discretion with respect to the assets
of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (1), any trust of which any professional
fiduciary acting as trustee is a U.S. person shall not be deemed a U.S.
person if a trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary of the
trust (and no settlor if the trust is revocable) is a U.S. person.
28
Techedge-CBP Share Exchange Agreement
(5) Notwithstanding paragraph (1), an employee benefit plan established and
administered in accordance with the law of a country other than the United
States and customary practices and documentation of such country shall not
be deemed a U.S. person.
(6) Notwithstanding paragraph (1), any agency or branch of a U.S. person
located outside the United States shall not be deemed a "U.S. person" if:
(i) The agency or branch operates for valid business reasons; and
(ii) The agency or branch is engaged in the business of insurance or
banking and is subject to substantive insurance or banking
regulation, respectively, in the jurisdiction where located.
(7) The International Monetary Fund, the International Bank for Reconstruction
and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the United Nations, and
their agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension plans
shall not be deemed "U.S. persons."
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Techedge-CBP Share Exchange Agreement
EXHIBIT B
NON U.S. PERSON REPRESENTATIONS
Each Shareholder indicating that it is not a U.S. person, severally and not
jointly, further represents and warrants to the Acquiror as follows:
1. At the time of (a) the offer by the Acquiror and (b) the acceptance of the
offer by such Shareholder, of the Acquiror Shares, such Shareholder was
outside the United States.
2. No offer to acquire the Acquiror Shares or otherwise to participate in the
transactions contemplated by this Agreement was made to such Shareholder
or its representatives inside the United States.
3. Such Shareholder is not purchasing the Acquiror Shares for the account or
benefit of any U.S. person, or with a view towards distribution to any
U.S. person, in violation of the registration requirements of the
Securities Act.
4. Such Shareholder will make all subsequent offers and sales of the Acquiror
Shares either (x) outside of the United States in compliance with
Regulation S; (y) pursuant to a registration under the Securities Act; or
(z) pursuant to an available exemption from registration under the
Securities Act. Specifically, such Shareholder will not resell the
Acquiror Shares to any U.S. person or within the United States prior to
the expiration of a period commencing on the Closing Date and ending on
the date that is one year thereafter (the "Distribution Compliance
Period"), except pursuant to registration under the Securities Act or an
exemption from registration under the Securities Act.
5. Such Shareholder is acquiring the Acquiror Shares for such Shareholder's
own account, for investment and not for distribution or resale to others.
6. Such Shareholder has no present plan or intention to sell the Acquiror
Shares in the United States or to a U.S. person at any predetermined time,
has made no predetermined arrangements to sell the Acquiror Shares and is
not acting as a Distributor of such securities.
7. Neither such Shareholder, its Affiliates nor any Person acting on such
Shareholder's behalf, has entered into, has the intention of entering
into, or will enter into any put option, short position or other similar
instrument or position in the U.S. with respect to the Acquiror Shares at
any time after the Closing Date through the Distribution Compliance Period
except in compliance with the Securities Act.
8. Such Shareholder consents to the placement of a legend on any certificate
or other document evidencing the Acquiror Shares substantially in the form
set forth in Section 4.2.5(b).
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Techedge-CBP Share Exchange Agreement
9. Such Shareholder is not acquiring the Acquiror Shares in a transaction (or
an element of a series of transactions) that is part of any plan or scheme
to evade the registration provisions of the Securities Act.
10. Such Shareholder has sufficient knowledge and experience in finance,
securities, investments and other business matters to be able to protect
such Shareholder's interests in connection with the transactions
contemplated by this Agreement.
11. Such Shareholder has consulted, to the extent that it has deemed
necessary, with its tax, legal, accounting and financial advisors
concerning its investment in the Acquiror Shares.
12. Such Shareholder understands the various risks of an investment in the
Acquiror Shares and can afford to bear such risks for an indefinite period
of time, including, without limitation, the risk of losing its entire
investment in the Acquiror Shares.
13. Such Shareholder has had access to the Acquiror's publicly filed reports
with the SEC.
14. Such Shareholder has been furnished during the course of the transactions
contemplated by this Agreement with all other public information regarding
the Acquiror that such Shareholder has requested and all such public
information is sufficient for such Shareholder to evaluate the risks of
investing in the Acquiror Shares.
15. Such Shareholder has been afforded the opportunity to ask questions of and
receive answers concerning the Acquiror and the terms and conditions of
the issuance of the Acquiror Shares.
16. Such Shareholder is not relying on any representations and warranties
concerning the Acquiror made by the Acquiror or any officer, employee or
agent of the Acquiror, other than those contained in this Agreement.
17. Such Shareholder will not sell or otherwise transfer the Acquiror Shares,
unless either (A) the transfer of such securities is registered under the
Securities Act or (B) an exemption from registration of such securities is
available.
18. Such Shareholder understands and acknowledges that the Acquiror is under
no obligation to register the Acquiror Shares for sale under the
Securities Act.
19. Such Shareholder represents that the address furnished by such Shareholder
on its signature page to this Agreement and in Exhibit A is such
Shareholder's principal residence if he is an individual or its principal
business address if it is a corporation or other entity.
20. Such Shareholder understands and acknowledges that the Acquiror Shares
have not been recommended by any federal or state securities commission or
regulatory authority, that the foregoing authorities have not confirmed
the accuracy or determined the adequacy of any information concerning the
Acquiror that has been supplied to such Shareholder and that any
representation to the contrary is a criminal offense.
21. Such Shareholder acknowledges that the representations, warranties and
agreements made by such Shareholder herein shall survive the execution and
delivery of this Agreement and the purchase of the Acquiror Shares.
31