STOCK PURCHASE AGREEMENT
Exhibit
10.14
STOCK
PURCHASE AGREEMENT (this “Agreement”), made as of the date set forth below
between XXXXXX.XXX, INC., a Delaware corporation
(the “Company”), and XXXXXXX.XXX, INC., a Delaware corporation
(the “Buyer”).
W
I T
N E
S S
E T H:
WHEREAS,
subject to the terms and conditions herein, the Company has agreed to offer
and
sell to the Buyer in a private placement, the Company has authorized the sale
and issuance of an aggregate of two hundred thirty thousand (230,000) shares
of
its Common Stock $.001 par value per share (the “Shares,”)
for
an aggregate purchase price of Nine Hundred Twenty Thousand Dollars ($920,000)
(the “Purchase Price”) and an aggregate of 1,150,000 warrants to purchase an
additional 1,150,000 common shares of the Issuer at an exercise price of US$4.00
with an expiry date on July 7, 2013 (the “Warrants”); and
WHEREAS,
the Buyer desires to purchase the Shares from the Company, and the Company
desires to sell the Shares to the Buyer, on the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the promises, mutual representations and
warranties hereinafter set forth, the parties hereto intending to be legally
bound hereby, do agree as follows:
| I. |
PURCHASE
AND SALE OF SHARES
|
1.1
Common
Stock.
Subject
to the terms and conditions herein stated, the Company hereby agrees to sell,
issue and deliver to the Buyer, and the Buyer agrees to purchase from the
Company, the Shares at a price equal to $4 per share of Common
Stock.
1.2
Closing.
The
closing (the “Closing”) of the transaction contemplated hereby is taking place
simultaneously with the execution and delivery of this Agreement or such other
place, date and time as may be mutually agreed upon by the parties hereto (the
“Closing Date”). At the Closing, the parties shall make the following deliveries
to each other:
(a)
The
Buyer
shall pay the Purchase Price to the Company in immediately available funds
by
wire transfer or certified check to an account designated by the Company or
otherwise in accordance with its written instructions; and
(b)
The
Company shall deliver to the Buyer a certificate registered in the name of
the
Buyer, representing the Shares, receipt of which is acknowledged by the
Buyer.
| II. |
REPRESENTATIONS
BY THE BUYER
|
The
Buyer
represents and warrants to the Company as follows:
2.1
Execution.
The
execution, delivery and performance of this Agreement by the Buyer has been
duly
approved by the Board of Directors or any body performing a similar function,
of
the Buyer, and all other actions required to authorize and effect the purchase
of the Shares have been taken.
2.2
Binding
Obligations.
This
Agreement constitutes a valid and binding obligation of the Buyer, enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
referring to or affecting enforcement of creditors’ rights and general
principles of equity.
2.3
Non-Contravention.
Neither
the execution and delivery of this Agreement nor the purchase of Shares by
the
Buyer shall, result in a material violation of, or constitute a material default
under its Certificate of Incorporation or By-Laws (or similar document), in
the
performance or observance of any material obligations, agreements, covenants
or
conditions contained in any debenture, note or other evidence of indebtedness
or
in any material contract, indenture, mortgage, loan agreement, lease, joint
venture or other agreement or instrument to which the Buyer is a party or by
which its properties may be bound or in violation of any material order, rule,
regulation, writ, injunction, or decree of any domestic government, governmental
instrumentality or court.
2.4
No
Public Sale or Distribution.
The
Buyer is acquiring the Shares for its own account for investment purposes only
and not with a view towards, or for resale in connection with, the public sale
or distribution thereof, except pursuant to sales registered or exempted under
the Securities Act of 1933, as amended (the “1933 Act); provided,
however,
that by
making the representations herein, the Buyer does not agree to hold any of
the
Shares for any minimum or other specific term and reserves the right to dispose
of the Shares at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act. The Buyer is acquiring the
securities hereunder in the ordinary course of its business. The Buyer presently
does not have any agreement or understanding, directly or indirectly, with
any
person to distribute any of the Shares.
2.5
Accredited
Investor Status.
The
Buyer is an "accredited investor" as that term is defined in Rule 501(a) of
Regulation D.
2.6
Reliance
on Exemptions.
The
Buyer understands that the Shares are being offered and sold to it in reliance
on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and the Buyer's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Buyer set
forth herein in order to determine the availability of such exemptions and
the
eligibility of the Buyer to acquire the Shares.
2.7
Information.
The
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Shares which have been requested by the Buyer.
The
Buyer and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and its officers. Neither such inquiries nor any other
due diligence investigations conducted by the Buyer or its advisors, if any,
or
its representatives shall modify, amend or affect the Buyer's right to rely
on
the Company's representations and warranties contained herein.
2
2.8
No
Governmental Review.
The
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Shares or the fairness or suitability of the investment
in
the Shares nor have such authorities passed upon or endorsed the merits of
the
offering of the Shares.
2.9
Transfer
or Resale.
The
Buyer understands that the Shares have not been and are not being registered
under the 1933 Act, or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (i) subsequently registered there
under, (ii) the Buyer shall have delivered to the Company an opinion of counsel,
in a generally acceptable form, to the effect that such Shares to be sold,
assigned or transferred may be sold, assigned or transferred pursuant to an
exemption from such registration, or (iii) the Buyer shall have satisfied the
requirements of Rule 144(k) promulgated under the 1933 Act, as amended (or
a
successor rule thereto). The Shares may be pledged in connection with a bona
fide margin account or other loan or financing arrangement secured by the Shares
and such pledge of Shares shall not be deemed to be a transfer, sale or
assignment of the Shares hereunder, and no Buyer effecting a pledge of Shares
shall be required to provide the Company with any notice thereof or otherwise
make any delivery to the Company pursuant to this Agreement or any other
agreements entered into by the parties hereto in connection with the transaction
contemplated by this agreement, including, without limitation, this Section
2.9;
provided,
that in
order to make any sale, transfer or assignment of Shares, the Buyer and its
pledge makes such disposition in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
2.10
Legends.
The
Buyer consents to the placement of a legend on any certificate or other document
evidencing the Shares, stating that they have not been registered under the
Securities Act and setting forth or referring to the restrictions on
transferability and sale thereof. The Buyer is aware that the Company may make
a
stop order notation in its appropriate records with respect to the restrictions
on the transferability of such Shares.
2.11
Organization.
The
Buyer is validly existing and in good standing under the laws of the
jurisdiction of its organization, and has the requisite power and authorization
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
2.12
Authorization;
Validity; Enforcement.
This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Buyer and constitutes the legal, valid and binding obligations of the
Buyer enforceable against the Buyer in accordance with its respective terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application referring to or affecting
enforcement of creditors’ rights and general principles of equity.
2.13
Placement
Agent.
No
broker's, finder’s or placement agent fees or commission will be payable to any
Person retained by, or on behalf of, the Buyers with respect to the transactions
contemplated herein.
3
2.14
No
Other Representations.
Except
as set forth herein, no representations (oral or written) have been made to
the
Buyer, or any representative, by the Company or by any of its officers,
directors, agents or employees, nor anyone else on their behalf, concerning
among others, the future profitability of the Company, the future performance
of
the Common Stock or the Buyer’s investment in the Company.
| III. |
REPRESENTATIONS
BY THE COMPANY
|
The
Company represents and warrants to the Buyer as follows:
3.1
Organization.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the corporate power to conduct
its current business and the business which it proposes to conduct.
3.2
Execution.
The
execution, delivery and performance of this Agreement by the Company has been
duly approved by the Board of Directors of the Company and all other actions
required to authorize and effect the offer, sale and issuance of the Shares
have
been taken.
3.3
Binding
Obligations.
This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
referring to or affecting enforcement of creditors’ rights and general
principles of equity.
3.4
Capitalization.
The
authorized capital stock of the Company consists of 300,000,000 shares of Common
Stock $0.001 par value and 50,000,000 shares of preferred stock, $0.01 par
value
(the “Preferred Stock”). As of July 8, 2008, 10,131,832 shares of the Company’s
Common Stock and no shares of the Company’s Preferred Stock were issued and
outstanding. In addition, at that date, there were 500,000 warrants and no
options outstanding for the purchase of shares of Common Stock.
3.5
Issuance
of Shares.
The
Shares are duly authorized and, upon issuance in accordance with the terms
hereof, shall be validly issued, free from all taxes, liens and charges with
respect to the issue thereof. Assuming the accuracy of each of the
representations and warranties of the Buyer contained in Section 2, the issuance
by the Company of the securities is exempt from registration under the 1933
Act.
3.6
Non-Contravention.
Neither
the execution and delivery of this Agreement nor the issuance of the Shares
by
the Company shall, result in a material violation of, or constitute a material
default under its Articles of Incorporation or By-Laws, in the performance
or
observance of any material obligations, agreements, covenants or conditions
contained in any debenture, note or other evidence of indebtedness or in any
material contract, indenture, mortgage, loan agreement, lease, joint venture
or
other agreement or instrument to which the Company is a party or by which its
properties may be bound or in violation of any material order, rule, regulation,
writ, injunction, or decree of any domestic government, governmental
instrumentality or court.
4
| IV. |
MISCELLANEOUS
|
4.1
Survival.
The
representations and warranties made in Articles II and III herein shall survive
the Closing for a period of one (1) year.
4.2
Amendment.
This
Agreement shall not be changed, modified or amended except by a writing signed
by the parties to be charged, and this Agreement may not be discharged except
by
performance in accordance with its terms or by a writing signed by the party
to
be charged. This Agreement and the documents delivered in connection herewith
sets forth the entire agreement and understanding between the parties as to
the
subject matter thereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature between them.
4.3
Binding.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
4.4
Governing
Law; Jurisdiction.
Notwithstanding the place where this Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions
hereof shall be construed in accordance with and governed by the laws of the
State of New York, without giving effect to any choice of law or conflicts
of
law provision.
4.5
Severability.
The
holding of any provision of this Agreement to be invalid or unenforceable by
a
court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
4.6
Waiver.
It is
agreed that a waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any subsequent
breach by that same party.
4.7
Further
Assurances.
The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Agreement.
5
4.8
Notice.
Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by recognized overnight courier or registered or certified
mail, return receipt requested, or delivered by hand against written receipt
there for, addressed to the address set forth below (or to such other address
as
the party shall have furnished in accordance with the provisions of this
Section):
If
to the
Company:
XXXXXX.XXX,
Inc.
3/F.,74
Xxxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX000000 Xxxxx
Attn:
Xxx
Xxx, Chief Executive Officer, telecopier (00) 00 0000 0000,
with
a
copy (which shall not constitute notice) to:
Xxxxxx
X.
Xxxxxx, Esq., Partner K&L GATES LLP
000
Xxxxxxxxx Xxxxxx, XX, XX 00000, telecopier: 212.536.3901,
If
to the
Buyer:
XXXXXXX.XXX,
INC.
0xx
Xxxxx, Xxxxxxx Xxxxxxxx Xxxxx,00 Xxxxxxxxxxxx Ave.,
Chongwen
Dist., Beijing 100062,China
Attn:
Xxxx Xxx, Chief Executive Officer, telecopier number: (00) 00 0000
0000.
Notices
shall be deemed to have been given on the date of mailing, except for notices
of
change of address, which shall be deemed to have been given when
received.
4.9
Counterparts.
This
Agreement may be executed in one or more counterparts, including by facsimile,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
Remainder
of Page Intentionally Left Blank
6
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
set forth below.
Dated:
July 8, 2008
| XXXXXXX.XXX, INC. | ||
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| By: | /s/ Xxxx Xxx | |
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Name:
Xxxx Xxx
Title:
Chief Executive Officer
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| XXXXXX.XXX, INC. | ||
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| By: | /s/ Xxx Xxx | |
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Name:
Xxx Xxx
Title:
Chief Executive Officer
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