Exhibit 2.1
ACQUISITION AGREEMENT
Sino Pharmaceuticals Corporation, a British Columbia corporation
Acquired by
SinoPharm Inc., a Nevada corporation
1. Parties to the Acquisition; Effective Date. Pursuant to the
provisions of the Nevada Statutes, Sino Pharmaceuticals Corporation, a British
Columbia, Canada corporation ("Sino Pharmaceuticals"), shall be acquired by
SinoPharm Inc., a Nevada corporation ("SinoPharm"). The Acquisition
("Acquisition") shall become effective at such time (the "Effective Time") on
the date of the closing.
2.1 Closing. The closing of the Acquisition contemplated by this
agreement shall take place on March 31, 2003, or at such other date and place as
the parties may mutually agree. The actual date of such closing is referred to
herein as the "Closing." It is the Parties intention that for federal and
applicable state income tax purposes, this Acquisition qualify as a tax-free
contribution under Section 351 of the Internal Revenue Code of 1986, as amended.
2.2 Effect of the Acquisition. From and after the Effective Time, (i)
Sino Pharmaceuticals shall continue its corporate existence as a British
Columbia, Canada corporation and shall be a wholly owned subsidiary of
SinoPharm; (ii) the articles of incorporation and bylaws of SinoPharm in effect
immediately prior the Effective Time shall continue to be its articles of
incorporation and bylaws until amended or repealed in a manner provided by law;
and (iii) each of the directors and officers of SinoPharm in office immediately
prior to the Effective Time shall become the directors and officers of
SinoPharm, if they have not resigned as of the Effective Time, until their
respective successor are duly elected or appointed.
2.3 Conversion of Outstanding Shares. Each one (1) share of Sino
Pharmaceuticals Common Stock that is issued and outstanding immediately prior to
the Effective Time will, by virtue of the Acquisition of Sino Pharmaceuticals by
SinoPharm, at the Effective Time, and without any further action on the part of
either Sino Pharmaceuticals and SinoPharm or any holder of outstanding Common
Stock, be cancelled and extinguished and automatically converted into one (1)
share of validly issued, fully paid and nonassessable SinoPharm common stock,
contingent only upon approval of the Acquisition by the Sino Pharmaceuticals
shareholders. At the close of the conversion, the former shareholders of Sino
Pharmaceuticals shall hold 100% of the issued and outstanding common stock of
SinoPharm.
3. Representations of Sino Pharmaceuticals. Sino Pharmaceuticals hereby
represents and warrants to SinoPharm that:
3.1 Due Incorporation, etc. Sino Pharmaceuticals is duly incorporated,
validly existing and in good standing under the laws of British Columbia,
Canada, and has all requisite power and authority to execute and deliver this
agreement and to perform the obligations to be performed by it hereunder.
Neither the execution nor delivery of this agreement nor the performance by Sino
Pharmaceuticals hereof will constitute a breach of or default under the
governing instruments of Sino Pharmaceuticals or any agreement, instrument,
indenture, judgment or decree to which Sino Pharmaceuticals is a party or by
which it is bound. Prior to the Closing, all consents and approvals, if any,
required to be obtained by Sino Pharmaceuticals for its performance hereunder
will have been obtained.
3.2 Due Execution, Validity and Effect. This agreement has been duly
authorized, executed and delivered by Sino Pharmaceuticals and, assuming the due
authorization, execution and delivery by SinoPharm, this agreement constitutes
the valid, legal and binding obligation of Sino Pharmaceuticals, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
3.3 Title to the Shares. At Closing, Sino Pharmaceuticals shall deliver
the shares of its common stock, with legal and valid title thereto, free and
clear of all liens, charges, pledges, claims and encumbrances of any kind or
nature whatsoever, other than those created by this agreement.
3.4 Board Approval. The Shareholders and the Board of Directors of Sino
Pharmaceuticals have duly approved the Acquisition contemplated by this
agreement.
3.5 Full Disclosure. No representation or warranty made by Sino
Pharmaceuticals in this agreement and no certificate or document furnished or to
be furnished to SinoPharm pursuant to this agreement contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or therein not
misleading.
3.6 Financial Statements. Sino Pharmaceuticals shall have obtained and
provided to SinoPharm true and accurate financial statements consisting of their
most recent year end financial statements and financial statements through the
most recently ended quarter.
3.7 Capital Structure. Sino Pharmaceuticals shall have 2,000,000 issued
and outstanding shares at the closing.
4. Representations of SinoPharm Inc. SinoPharm represents and warrants
to Sino Pharmaceuticals that:
4.1 Due Incorporation, etc. SinoPharm is duly incorporated, validly
existing and in good standing under the laws of Nevada and has all requisite
power and authority to execute and deliver this agreement and to perform the
obligations to be performed by it hereunder. Neither the execution nor delivery
of this agreement nor the performance by SinoPharm hereof will constitute a
breach of or default under the governing instruments of SinoPharm or any
agreement, instrument, indenture, judgment or decree to which SinoPharm is a
party or by which it is bound. Prior to the Closing, all consents and approvals,
if any, required to be obtained by SinoPharm for its performance hereunder will
have been obtained.
4.2 Due Execution, Validity and Effect. This agreement has been duly
authorized, executed and delivered by SinoPharm and, assuming the due
authorization, execution and delivery by Sino Pharmaceuticals, this agreement
constitutes the valid, legal and binding obligation of SinoPharm, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
4.3 Full Disclosure. No representation or warranty made by SinoPharm in
this agreement and no certificate or document furnished or to be furnished to
Sino Pharmaceuticals pursuant to this agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
4.4 Capital Structure. SinoPharm shall have no issued and outstanding
shares, and shall have the authority to issue an aggregate of 110,000,000 shares
of capital stock having a par value of $0.001 per share of which no more than
10,000,000 may be preferred stock, at the closing.
4.5 Board Approval. The Board of Directors of SinoPharm has duly
approved the Acquisition contemplated by this agreement.
4.6 Registration. Within six months of the closing, the SinoPharm shall
prepare and file an SB-2 registration statement, and shall pursue such
registration statement until it shall have been declared effective by the
Securities and Exchange Commission. After effectiveness of the registration
statement, SinoPharm shall timely and diligently file all required Securities
and Exchange Commission reports, including but not limited to 10Q's, 10K's and
8K's.
5. Certain Fees. Neither party has incurred any liability for any
brokers' or finders' fees or commissions in connection with the Acquisition
contemplated by this Agreement for which the other party is or would be liable.
Each of the parties agree to indemnify and hold harmless the other from and
against any commission, fee or claim of any person employed or retained by it to
bring about the Acquisition contemplated hereby or to represent it in connection
therewith.
6. Conditions to Obligations of the Parties. All obligations of the
parties under this agreement are subject to the fulfillment or satisfaction,
prior to or at Closing, of each of the following conditions precedent (all of
which may be waived):
(a) each of the representations and warranties of the parties herein
being true and correct in all material respects on the date hereof and as of the
Closing, and each of the parties having performed or complied with all
agreements and covenants contained in this agreement to be performed or complied
with by it or either of them, as the case may be, prior to or at the Closing;
(b) neither Sino Pharmaceuticals nor SinoPharm issuing any stock,
changing its capital structure or incurring any debt in an amount more than
$10,000;
(c) neither Sino Pharmaceuticals nor SinoPharm being precluded by an
order or preliminary or permanent injunction of a court of competent
jurisdiction from consummating the Acquisition pursuant to this agreement (each
party agreeing to use its reasonable best efforts to have any such injunction
lifted);
(d) there not having been any statute, rule or regulation enacted or
promulgated by any government body or agency after the date hereof which is
applicable to the Acquisition pursuant to this agreement which would render the
consummation of the Acquisition illegal; and
(e) The shareholders of Sino Pharmaceutucals shall have, by a majority
vote, approved the Acquisition.
7. Survival of Representations. All representations, warranties and
agreements made herein shall survive any investigation made by Sino
Pharmaceuticals and SinoPharm, and shall survive the Closing.
8. Termination. This agreement may be terminated:
(a) on the date specified in a writing executed by SinoPharm
and Sino Pharmaceuticals;
(b) by SinoPharm upon written notice to Sino Pharmaceuticals,
if any representation or warranty made in this agreement by Sino Pharmaceuticals
shall have been false or incorrect in any material respect when made or shall
have become false or incorrect in any material respect thereafter, of if Sino
Pharmaceuticals shall fail to perform or observe any material covenant or
agreement made by Sino Pharmaceuticals in this agreement; or
(c) by Sino Pharmaceuticals, upon written notice to SinoPharm,
if any representation or warranty made in this agreement by SinoPharm shall have
been false or incorrect in any material respect when made or shall have become
false or incorrect in any material respect hereafter, or if SinoPharm shall fail
to perform or observe any material covenant or agreement made by it in this
agreement.
9. Miscellaneous.
9.1 Binding Effect; Assignment. This agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective legal
representatives and successors. This agreement may not be assigned.
9.2 Further Assurances, Cooperation. Each party shall, upon reasonable
request by the other party, execute and deliver any additional documents
necessary or desirable to complete the Acquisition pursuant to and in the manner
contemplated by this agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this agreement.
9.3 Entire Agreement; Absence of Representation. This agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior arrangements, understandings, and agreements, oral or written, between the
parties hereto with respect to the subject matter hereof. SinoPharm and Sino
Pharmaceuticals acknowledges that in acquiring the securities in the Acquisition
hereunder, it and each of them has relied only upon the representations and
warranties expressly made in this agreement and that no other statements,
representations or warranties, oral or written, expressed or implied, have been
made or relied upon in connection with such acquisitions or as an inducement
therefore.
9.4 Execution in Counterparts. This agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one and the same instrument.
9.5 Notices. All notices, requests, permissions, waivers and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by telegram, telex, facsimile transmission
or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties at the following respective addresses or to
such other addresses as any party hereto shall specify in a notice to the other
parties hereto in accordance with the terms hereof:
If to SinoPharm Inc.:
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Facsimile Transmission: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sino Pharmaceuticals:
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile Transmission: (▇▇▇) ▇▇▇-▇▇▇▇
9.6 Amendments and Waivers. This agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Sino
Pharmaceuticals may, by an instrument in writing, waive compliance by SinoPharm
with any term or provision of this agreement on the part of any of them to be
performed or complied with. SinoPharm may, by an instrument in writing, waive
compliance by Sino Pharmaceuticals with any term or provision of this agreement
on the part of Sino Pharmaceuticals to be performed or complied with. Any waiver
of a breach of any term or provision of this agreement shall not be construed as
a waiver of any subsequent breach.
9.7 Headings; Severability. The headings contained in this agreement
are for convenience of reference only and shall not affect the interpretation or
construction hereof. Any term or provision of this agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this agreement or
affecting the validity or enforceability of any of the terms or provisions of
this agreement in any other jurisdiction. If any provision of this agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as in enforceable.
9.8 Governing Law. This Agreement shall be construed (both as to
validity and performance) and enforced in accordance with and governed by the
laws of the State of Nevada applicable to agreements made and to be performed
wholly within such jurisdiction and without regard to conflicts of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of this 31st day of March, 2003.
SINOPHARM INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
SINO PHARMACEUTICALS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President