Exhibit 10.1
SHARE PURCHASE
AGREEMENT
This SHARE PURCHASE AGREEMENT
is made as of 3 August, 2009, by and among Alliance UniChem Group
Limited, a company incorporated in England and Wales with
registered number 00546864 having its registered address at 2 The
Heights, Brooklands, Weybridge, Surrey, KT13 ONY (the “
Purchaser ”), and BMP Sunstone Corporation (formerly
known as Beijing Med-Pharm Corporation), a Delaware corporation
having its principal office at 600 W. Germantown Pike, Suite 400,
Plymouth Meeting, PA 19462 (the “ Seller ,” and,
together with the Purchaser, the “ Parties
”).
BACKGROUND
WHEREAS , the Seller legally and beneficially owns
10,000 ordinary shares, representing twenty (20) percent of
the issued and outstanding ordinary shares (the “
Shares ”) of Alliance BMP Limited, a company
incorporated in England and Wales with registered number 06056032
having its registered address at 2 The Heights, Brooklands,
Weybridge, Surrey, KT13 0NY (the “ Company ”);
and
WHEREAS , the Seller desires to sell and the Purchaser
desires to buy the Shares for the purchase price and pursuant to
the terms and conditions as further set forth below.
WITNESSETH
NOW, THEREFORE
, the Parties, intending to be
legally bound hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in
consideration of the mutual covenants contained herein, hereby
agree as follows:
For convenience, certain terms used
in more than one part of this Agreement are listed in alphabetical
order and defined or referred to below (such terms as well as any
other terms defined elsewhere in this Agreement shall be equally
applicable to both the singular and plural forms of the terms
defined).
“ Agreed Form ”
shall mean the form of the relevant document in the terms agreed
between the Seller and the Purchaser prior to the execution of this
Agreement and signed or initialed for identification purposes only
by or on behalf of the Seller and the Purchaser (in each case with
such amendments as may be agreed or on behalf of the Seller and the
Purchaser).
“ Agreed Statement
” shall have the meaning set forth in
Section 9.1.
“ Agreement ”
shall mean this Share Purchase Agreement.
“ Business Day ”
shall mean a day other than a Saturday, Sunday or other day on
which commercial banks in Philadelphia, Pennsylvania, New York
City, New York, and the United Kingdom are authorized or required
by law to be closed.
“ Claim Notice”
shall have the meaning set forth in Section 9.3(d).
“ Company ” shall
have the meaning set forth in the recitals.
“ Damages ” shall
have the meaning set forth in Section 7.2.
“ Escrow Agent ”
shall mean Baker & McKenzie LLP of 100 New Bridge Street,
London EC4V 6JA.
“ Escrow Documents
” shall mean;
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(a)
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a share
certificate; and
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(b)
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a stock
transfer form executed by the Purchaser in favour of the
Seller;
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each in respect of the Second
Payment Shares.
“ Escrow Instruction
Letter ” shall mean the letter agreement of the same date
as this Agreement between: (1) the Escrow Agent; (2) the
Seller; and (3) the Purchaser, in relation to the Escrow
Documents, in the Agreed Form.
“ First Payment ”
shall have the meaning set forth in Section 2.2(a).
“ First Payment Date
” shall mean a day falling on or before the day which is 15
Business Days following the Signing Date.
“ Liens ” shall
mean, with respect to any Person, any mortgage, lien, pledge,
charge, security interest, title retention or other encumbrance, or
any interest or title of any third party including vendor, lessor,
lender or other secured party to or of such Person under any
agreement, arrangement or capital lease, upon or with respect to
any property or asset of such Person (including any right to
acquire, option, right of first refusal or right of pre-emption)
the effect of which is the creation of security, or any other
interest equity or other right of any of third party (including,
without limitation, in the case of stock, stockholder agreements,
voting trust agreements and all similar arrangements) or any
agreement or arrangement to create any of the same.
“ Notice ” shall
have the meaning set forth in Section 9.3.
“ Parties ” shall
have the meaning set forth in the preamble and “ Party
” shall be construed accordingly.
“ Person ” shall
mean an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
“ Press Response
” shall mean the questions and answers to be given by the
Parties in relation to any press or other third party enquiries in
relation to this Agreement or the Transaction, in the Agreed
Form.
“ Purchaser ”
shall have the meaning set forth in the preamble.
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“ Purchaser Indemnified
Parties ” shall have the meaning set forth in
Section 7.3.
“ Relevant Date ”
shall have the meaning set forth in Section 2.5.
“ Second Payment
” shall have the meaning set forth in
Section 2.2(b).
“ Second Payment Date
” shall have the meaning set forth in Section 2.2
(b).
“ Second Payment Shares
” shall mean half of the Shares (being 5,000 ordinary shares
in the capital of the Company).
“ Seller ” shall
have the meaning set forth in the preamble.
“ Seller’s Group
” shall mean the group of companies comprising the Seller,
any holding company from time to time of the Seller and any
subsidiary of the Seller or of any such holding company and
“member of the Seller’s Group” shall be construed
accordingly.
“ Seller Indemnified
Parties ” shall have the meaning set forth in
Section 7.2.
“ Seller’s
Solicitors ” shall mean Morgan Lewis & Bockius
of Condor House, 5-10 St Paul’s Churchyard, London EC4M
8AL.
“ Service Agreement
” shall mean the agreement to be entered into on the Signing
Date between: (1) the Company; and (2) David Gao, in the
Agreed Form.
“ Share Payment ”
shall have the meaning set forth in Section 2.2.
“ Shareholders
Agreement ” means the Shareholders Agreement entered into
by the Parties and the Company on 18 January 2007.
“ Shares ” shall
have the meaning set forth in the recitals.
“ Signing ” shall
have the meaning set forth in Section 3.1.
“ Signing Date ”
shall have the meaning set forth in Section 3.1.
“ Statement ”
shall have the meaning set forth in Section 9.1.
“Termination
Date ” shall have
the meaning set forth in Section 8(c).
“ Transaction ”
shall mean the sale of the Shares by the Seller to the Purchaser
and the other actions contemplated hereby.
“ USD ” means the
lawful currency of the United States as of the date of this
Agreement.
“ Warranties ”
shall mean the representations and warranties given in
Section 5.
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2.
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Purchase and
Sale of Shares; Purchase Price; Other Actions and
Agreements
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2.1 Purchase and Sale of the
Shares . Subject to the terms and conditions of this Agreement,
on the Signing Date the Purchaser (relying on the Warranties and
other obligations of the Seller) shall buy from the Seller, and the
Seller, as legal and beneficial owner, shall sell to the Purchaser,
with full title guarantee all rights, title and interest in the
Shares, including all rights now or hereafter attaching to them
including, without limitation, all rights to any dividend or other
distribution declared, made or paid after the Signing
Date.
2.2 Purchase Price . The
total purchase price for the Shares is an aggregate of USD15.1
million to be paid by the Purchaser to the Seller (the “
Share Payment ”) in two installments as
follows:
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(a)
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USD7.55 million
(the “ First Payment ”) to be paid on the First
Payment Date; and
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(b)
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USD7.55 million
(the “ Second Payment ”) to be paid on the day
which is the date falling on the 12 month anniversary of the
Signing Date, or, if such date is not a Business Day, the next
following Business Day (the “ Second Payment Date
”).
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(c)
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On the First
Payment Date, subject to the Seller complying with its obligations
under Sections 2.5 and 3.4, the Purchaser shall pay the First
Payment in immediately available funds to the following bank
account of the Seller.
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Customer Name:
BMP Sunstone Corporation
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Bank: Sovereign
Bank, Wyomissing, PA
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Reference: GPC
Transaction
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(d)
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On or before
the date which is two Business Days prior to the Second Payment
Date, the Purchaser shall pay the Second Payment in immediately
available funds to the bank account of the Escrow Agent as
specified in the Escrow Instruction Letter. On the Second Payment
Date the Purchaser shall, in accordance with the provisions of the
Escrow Instruction Letter, instruct the Escrow Agent to pay the
Second Payment in immediately available funds to the bank account
of the Seller’s Solicitors, detail of which are set out
below:
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Account name:
Morgan, Lewis & Bockius USD Client A/C
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Account number:
140/02/06182240
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Reference: BMP
Sunstone Corporation
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2.3 The Shares . Other than
the representation and warranties of Seller in Section 5.1 and
the undertaking as to full title guarantee in Section 2.1, the
Seller makes no representations or warranties regarding the Shares
of any kind, expressed or implied, and all such representations and
warranties are hereby expressly disclaimed by the
Seller.
2.4 Conditions to the Obligations
of the Seller at the Signing Date . The obligations of the
Seller at the Signing Date are subject to the conditions precedent
that:
(a) the representations and
warranties of the Purchaser are true and correct in all respects as
of the Signing Date; and
(b) the Purchaser has complied in
all material respects with all covenants, obligations and
agreements to be performed by it on or prior to the Signing
Date.
2.5 Conditions to the Obligations
of the Purchaser . The obligations of the Purchaser at each of
the Signing Date, the First Payment Date and the Second Payment
Date (each a “Relevant Date”) are subject to the
conditions precedent that:
(a) the representations and
warranties of the Seller are true and correct in all respects as at
each Relevant Date; and
(b) the Seller has complied in all
material respects with all covenants, obligations and agreements to
be performed by it (including, for the avoidance of doubt, pursuant
to Section 7.3) and the Purchaser has not served a Claim
Notice on or prior to each Relevant Date.
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3.
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The Signing
and Completion .
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3.1 Location, Date . The
signing and completion of this Agreement (the “
Signing ”) shall take place on the date hereof, or on
such other date and at such time as may be mutually agreed upon by
the Parties, at the offices of Morgan, Lewis & Bockius,
Condor House, 5-10 St Paul’s Churchyard, London EC4M 8AL,
England, unless the Parties agree in writing to another date or
place. The date on which the Signing occurs is referred to herein
as the “ Signing Date .” The delivery of
documents at or prior to the Signing, including this Agreement but
not including the certificate(s) representing the Shares, may be
made by facsimile transmission or email.
3.2 Sale of All Shares . The
Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the sale of all of the Shares is completed
simultaneously in accordance with this Agreement.
3.3 Passing of Title . For
the avoidance of doubt, the Parties agree that:
(a) the legal and beneficial title
in all of the Shares shall pass to the Purchaser on the Signing
Date (including, for the avoidance of doubt, all voting rights
attaching to the Shares); and
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(b) in the event that the Purchaser
fails to make or procure the making of the Second Payment on or
before the Second Payment Date and, subject to the Seller complying
with its obligations pursuant to Section 2.5 to the
satisfaction of the Purchaser, the Escrow Documents shall be
released to the Seller subject to and in accordance with the terms
and conditions of the Escrow Instruction Letter.
3.4 Deliveries . Subject to
the terms and conditions contained herein, at the Signing
Date:
(a) the Seller shall deliver to the
Purchaser:
(i) the duly executed transfer in
respect of the Shares into the name of the Purchaser (or its
nominee);
(ii) the deed of indemnity for lost
share certificates in respect of the Shares;
(iii) letter of resignation, in
terms acceptable to the Purchaser, from David Gao as a director of
the Company);
(iv) three original copies of the
Escrow Instruction Letter duly executed on behalf of the
Seller;
(v) a certified copy of the board
resolutions of the Seller in the agreed form approving this
Transaction and authorizing the signing and performance by the
Seller of this Agreement and approving any action or the
performance of any other business which may be necessary or
desirable to give full and valid effect to the sale and purchase of
the Shares or as the Purchaser may reasonably require;
(vi) a duly executed deed of release
under seal, in terms acceptable to the Purchaser, releasing the
Company from any liability whatsoever (whether actual or
contingent) which may be owing to the Seller by the
Company;
(vii) all such other documents,
including such waivers and consents as the Purchaser may require to
enable the Purchaser to be registered as holder of any of the
Shares;
(viii) a duly executed irrevocable
power of attorney in the agreed form in respect of the Shares
enabling the Purchaser (during the period prior to the registration
of the transfer of the Shares) to exercise all voting and other
rights attaching to the Shares; and
(ix) two original copies of the
Service Agreement, duly executed on behalf of each of the Company
and David Gao;
(b) the Seller shall cause the
directors of the Company to hold a meeting of the board of
directors of the Company at which the directors shall consult and
pass resolutions in the agreed form to approve the registration of
the Purchaser as the legal owner of the Shares subject only to the
production of duly stamped and completed transfers in respect of
the Shares;
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(c) the Purchaser shall deliver to
the Seller three original copies of the Escrow Instruction Letter
duly executed on behalf of the Purchaser and the Escrow
Agent.
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4.
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Representations and Warranties of the
Purchaser . The Purchaser
hereby represents and warrants to the Seller on the Signing Date,
as follows:
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4.1 Authority; Binding Effect
. The Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement. All necessary action, corporate
or otherwise, required to have been taken by or on behalf of the
Purchaser under any applicable law, its organizational documents or
otherwise to authorize (a) the approval, execution and
delivery on its behalf of this Agreement, and (b) its
performance of its obligations under this Agreement has been taken.
This Agreement constitutes the valid and binding agreement of the
Purchaser, enforceable against it in accordance with its terms,
except (y) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general
application relating to or affecting creditors’ rights,
including, without limitation, the effect of statutory or other
laws regarding fraudulent conveyances and preferential transfers
and (z) for the limitations imposed by general principles of
equity.
4.2 No Conflict; Approvals .
The execution, delivery and performance of this Agreement and the
consummation by the Purchaser of the Transaction will not
(a) result in a violation of the Purchaser’s
organizational and charter documents, (b) conflict with any
agreement, indenture or instrument to which the Purchaser is a
party or (c) result in a violation of any