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Tongjitang Chinese Medicines Co – ‘F-1’ on 2/26/07 – EX-10.5

On:  Monday, 2/26/07, at 3:41pm ET   ·   Accession #:  1193125-7-39679   ·   File #:  333-140888

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 2/26/07  Tongjitang Chinese Medicines Co   F-1                   29:4.5M                                   RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: F-1         Registration Statement of a Foreign Private Issuer  HTML   1.50M 
 2: EX-3.1      Amended and Restated Memorandum and Articles of     HTML    150K 
                          Association of the Registrant                          
 3: EX-4.2      Registrant's Specimen Certificate for Ordinary      HTML     18K 
                          Shares                                                 
 4: EX-4.3      Form of Deposit Agreement Among the Registrant      HTML    245K 
 5: EX-4.4      Shareholders' Agreement Dated November 8, 2006      HTML    302K 
 6: EX-4.5      Registration Rights Agreement Dated November 8,     HTML    170K 
                          2006                                                   
 7: EX-5.1      Opinion of Maples and Calder                        HTML     34K 
 8: EX-8.1      Form of Opinion of Latham & Watkins LLP Regarding   HTML     21K 
                          Certain U.S. Tax Matters                               
 9: EX-10.1     Form of Indemnification Agreement With the          HTML     58K 
                          Registrant's Directors                                 
18: EX-10.10    English Translation of Equity Transfer Contract     HTML     16K 
                          Dated February 20, 2005                                
19: EX-10.11    Regional Distribution Contract Dated September 1,   HTML     50K 
                          2006                                                   
20: EX-10.12    Regional Distribution Agreement Dated January 1,    HTML     43K 
                          2007                                                   
21: EX-10.13    Real Property Lease Agreement Dated July 11, 2006   HTML     41K 
10: EX-10.2     Form of Employment Agreement                        HTML     56K 
11: EX-10.3     2006 Share Incentive Plan                           HTML     91K 
12: EX-10.4     Subscription Agreement Dated December 21, 2005      HTML    192K 
13: EX-10.5     Sale and Purchase Agreement Dated June 15, 2006     HTML    127K 
14: EX-10.6     Share Purchase Agreement Dated November 8, 2006     HTML    228K 
15: EX-10.7     English Translation of Patent License Agreement     HTML     23K 
                          Dated January 12, 2005                                 
16: EX-10.8     English Translation of Equity Transfer Agreement    HTML     15K 
                          Dated February 20, 2005                                
17: EX-10.9     English Translation of Equity Transfer Agreement    HTML     16K 
                          Dated January 18, 2006                                 
22: EX-21.1     Subsidiaries of the Registrant                      HTML     10K 
23: EX-23.1     Consent of Deloitte Touche Tohmatsu                 HTML     11K 
24: EX-23.3     Consent of Latham & Watkins LLP                     HTML     13K 
25: EX-23.4     Consent of Global Law Office                        HTML     13K 
26: EX-23.5     Consent of China Southern Medicine Economy          HTML     13K 
                          Research Institute                                     
27: EX-23.6     Consent of David White                              HTML     12K 
28: EX-23.7     Consent of Dr. Harry Genant                         HTML     12K 
29: EX-99.1     Code of Business Conduct and Ethics                 HTML     79K 

Exhibit 10.5

INDEX

THIS AGREEMENT is made this 15th day of June 2006

AMONG

and

Hanmax, Tangram, Paraway, S-Yangtse, Lodway and Samtung shall collectivley be referred to as “Vendors” in this Agreement.

PRELIMINARY

1

IT IS AGREED AS FOLLOWS :

“BVI Company” means Unisources Enterprises Limited, brief particulars of which are set out in Part A of Schedule 1;

“Company Groups” refers to the BVI Company and the Purchaser;

“Completion” means the completion of the sale and purchase of the Sale Shares in accordance with the provisions of this Agreement;

“Completion Date” means the date on which Completion takes place;

“Consideration” means the consideration for the acquisition of the Sale Shares as described in Clause 3;

“Consideration Shares” means an aggregate of (i) 90,363,999 fully paid up, validly issued and nonassessable ordinary shares of the Purchaser, par value of US$0.001 per share. Of these shares, each of the Vendors will receive the following number of Consideration Shares pursuant to the Share Swap, respectively:

“Hong Kong” means the Hong Kong Special Administrative Region of the PRC;

“PRC” means the People’s Republic of China;

“Sale Shares” means an aggregate of (i) 45,182 fully paid up, validly issued and nonassessable ordinary shares of the BVI Company, par value of US$1.00 per share. Of these shares, each of the Vendors holds and will transfer to the Purchaser the following number of Sale Shares, respectively:

2

“Securities and Exchange Commission” means the United States Securities and Exchange Commision;

“US$” means United States dollars; and

3

4

thereof by PRC law at any time and from time to time (including registration with State Administration of Foreign Exchange, if applicable). In addition, each member of the Company Group shall use its best efforts to procure each of the owners or beneficial owners of any equity interest in the Purchaser, whether direct or indirect, to timely obtain all Approvals required by PRC law in relation to such interest in the Purchaser. For purpose of this Agreement, “Approval” means any consent, approval, authorization, waiver, permit, grant, franchise, concession, agreement, license, exemption or order of, registration, certificate, declaration or filing with, or report or notice required to be secured from any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government (including the government of the PRC and any other relevant jurisdiction).

This Agreement shall remain in full force and effect after and notwithstanding Completion in respect of all obligations, agreements, covenants, undertakings, conditions, representations or warranties which have not been done, observed or performed at or prior to Completion and the parties may take action for any breach or non-fulfilment of any of such obligations, agreement, covenants, undertakings, conditions, representations or warranties either before or after Completion (whether or not such breach or non-fulfilment may have been known to or discoverable by the Purchaser prior to Completion) it being agreed that Completion shall not be deemed to constitute a waiver of or operate as an estoppel against any right to take any such action.

This Agreement, the Assumption Agreement and any agreement, document or instrument attached hereto or referred to herein among the parties hereto together constitute the entire agreement and understanding between the parties in connection with the subject matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and neither party has relied on any such proposals, representations, warranties, agreements or undertakings. In the event of a

5

conflict between the terms and conditions of this Agreement and any previous proposals, representations, warranties, agreements or undertakings, the terms and conditions of this Agreement shall prevail.

Any and all notices required or permitted under this Agreement shall be given in writing in English and shall be provided by one or more of the following means and shall be deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by international courier service, on the fourth (4^th) Business Day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed in writing to the sender by such courier service.

6

The parties hereto bear their respective legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement and all documents contemplated hereby.

This Agreement may be executed in counterparts and all counterparts together shall constitute one document.

7

This Agreement may not be amended, modified or supplemented, except in a writing signed by each of the parties hereto.

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

8

IN WITNESS whereof the parties hereto have executed this Agreement the day and year first above written.

9

10

SCHEDULE 1

Part A

PARTICULARS OF THE BVI COMPANY

Part B

1-1

SCHEDULE 2

Unanimous Written Resolutions of the Sole Shareholder of

Tongjitang Chinese Medicines Company (the “Company”)

We, being the sole shareholder of the Company entitled to receive notices of and attend and vote at general meetings of the Company, DO HEREBY ADOPT the following resolutions with immediate effect:

RESOLVED, AS A SPECIAL RESOLUTION, THAT:

The existing Memorandum and Articles of Association of the Company be and are hereby replaced in their entirety with an Amended and Restated Memorandum and Articles of Association, attached hereto as Exhibit A.

The Amended and Restated Memorandum and Articles of Association shall be duly filed with and registered by the Registrar of Companies of the Cayman Islands within five (5) days after the Completion (as defined in the Sale and Purchase Agreement).

RESOLVED, AS ORDINARY RESOLUTIONS, THAT:

The sale and purchase agreement (the “Sale and Purchase Agreement”), attached hereto as Exhibit B, to be entered into by and among Hanmax Investment Limited, Tangram Investment Limited, Paraway Investment Limited, S-Yangtse Holdings Limited, Lodway Investment Limited, and Samtung Investments Limited, as the vendors (the “Vendors”), and the Company as purchaser, relating to the purchase by the Company of the entire issued share capital in Unisouroces Enterprises Limited held by such Vendors (the “Sale Shares”), be and is hereby approved.

In consideration of the sale by the Vendors of the Sale Shares, the Directors are hereby authorised to allot and issue as fully paid, validly issued and nonassessable, an aggregate of 90,363,999 ordinary shares with par value of US$0.001 per share (the “Consideration Shares”) to the Vendors in such proportions as are specified below:

2-1

The Directors are hereby authorised to cause the register of members of the Company be updated and revised to reflect the current shareholdings of the Company as follows:

2-2

Date:      of June 2006

2-3

SCHEDULE 3

UNANIMOUS WRITTEN BOARD RESOLUTIONS OF

TONGJITANG CHINESE MEDICINES COMPANY

(THE “COMPANY”)

It is noted that the directors declared their interests in the matters referred to herein that would require disclosure in accordance with the articles of association of the Company.

2.1 It was noted that it was proposed that the Company should acquire the entire issued share capital (the “Sale Shares”) in Unisources Enterprises Limited. subject to the terms and conditions of the Sale and Purchase Agreement entered into by and among Hanmax Investment Limited, Tangram Investment Limited, Paraway Investment Limited, S-Yangtse Holdings Limited, Lodway Investment Limited, and Samtung Investments Limited, as vendors (the “Vendors”), and the Company as purchaser, relating to the purchase by the Company of the entire issued share capital in Unisources Enterprises Limited (the “Sale Shares”) (the “Sale and Purchase Agreement”).

2.2 It was noted that as part of the Sale and Purchase Agreement, the Company shall purchase from each of the Vendors the following number of Sale Shares of Unisources Enterpirses Limited held by it, respectivley:

2.3 It was noted that, pursuant to the Sale and Purchase Agreement, the Vendors have each undertaken to the Company that they shall deliver to the Company as soon as reasonably practicable following the Completion (as defined therein) and in any event not later than fifteen days after the Completion, the share certificates in respect of all the shares owned by them, respectively, in the share capital of Unisources Enterprises Limited and which are the subject of the Sale and Purchase Agreement.

2.4 It was noted that, pursuant to the Sale and Purchase Agreement, the Company has undertaken to each Vendor to deliver original share certificates for the Consideration Shares issued by the Company in such share amounts and to such persons/entities as set forth on Schedule 1, Part B, Column 2 of the Sale and Purchase Agreement, as soon as reasonably practicable following the Completion (as defined therein) and in any event not later than fifteen days after the Completion (as defined therein).

2.5 It was noted that written resolutions (the “Written Resolutions”) of the sole shareholder of the Company had previously been passed approving, among other matters, the adoption of the Amended and Restated Memorandum and Articles of Association and the Sale and Purchase Agreement.

3-1

It is also noted that the Company and all parties who entered into the subscripiton agreement dated December 21, 2005, supplementary agreements to the subscription agreement dated April 25, 27, 2006, Indemnity Agreement dated April 27, 2006, as well as the shareholders’ agreement dated April 30, 2006 (collectivley, “Transaction Agreements”) proposed to enter into an agreement for the transfer and assumption of obligations (“Agreement for the Transfer and Assumption of Obligations”), pursuant to which, Unisources Enterprises Limited will assign all of its rights and obligations under the above Transaction Agreements to the Company. It is noted that the draft Agreement for the Transfer and Assumption of Obligations has been reviewed by the directors and the terms thereof fully discussed.

RESOLVED THAT:

3-2

3-3

SCHEDULE 4

FORM OF AMENDED AND RESTATED

MEMORANDUM AND ARTICLES OF ASSOCIATION OF

TONGJITANG CHINESE MEDECINES COMPANY

[Please refer to Exhibit 3.1]

4-1

SCHEDULE 5

Unisources Enterprises Limited (the “Company”)

(Incorporated In B.V.I.)

WRITTEN RESOLUTIONS OF ALL THE DIRECTORS OF THE COMPANY DATED [    ] June 2006.

We, the undersigned, being all the directors of the Company HEREBY RESOLVE AS FOLLOWS:

1. Disclosure of interests

It is noted that the directors declared their interests in the matters referred to herein that would require disclosure in accordance with the articles of association of the Company.

2. Transaction Documents

It is noted that the Company proposed to enter into a sale and purchase agreement (the “Sale and Purchase Agreement”), pursuant to which the vendors of shares of the Company named therein shall transfer their shares in the Company to Tongjitang Chinese Medicines Company (“Chinese Medicines”) in exchange for shares in Chinese Medicines to be issued to them by Chinese Medicines. It is noted that the draft Sale and Purchase Agreement, attached hereto as Exhibit A, has been reviewed by the directors and the terms thereof fully discussed.

It is also noted that Chinese Medicines and all parties to the subscripiton agreement dated December 21, 2005, supplementary agreements to the subscription agreement dated April 25, 27, 2005, Indemnity Agreement dated April 27, 2006, as well as the shareholders’ agreement dated April 30, 2006 (collectively, “Transaction Agreements”) proposed to enter into an agreement for the transfer and assumption of obligations (“Agreement for the Transfer and Assumption of Obligations”), pursuant to which, the Company will assign all of its rights and obligations under the above Transaction Agreements to Chinese Medicines. It is noted that the draft Agreement for the Transfer and Assumption of Obligations, attached hereto as Exhibit B, has been reviewed by the directors and the terms thereof fully discussed.

The Agreement for the Transfer and Assumption of Obligations and the Sale and Purchase Agreement are herein collectively referred to as the “Agreements”.

3. Resolutions

IT IS UNANIMOUSLY RESOLVED:

5-1

transactions contemplated by or referred to in any of the Agreements and to do all other such acts and things as might in the sole opinion and absolute discretion of any Director be necessary or desirable for the purposes aforesaid.

5-2

Dated June     , 2006

5-3

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘F-1’ Filing		Date		Other Filings
Filed on:		2/26/07		F-6
		6/15/06
		4/30/06
		4/27/06
		12/21/05
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Filing Submission 0001193125-07-039679   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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