Exhibit 10.19
REGULATION S STOCK PURCHASE AGREEMENT
Dated June 20th, 2003
for
KID CASTLE EDUCATIONAL CORPORATION
COMMON STOCK
REGULATION S STOCK PURCHASE AGREEMENT
Regulation S Stock Purchase Agreement ("Agreement"), dated as of June 20th, 2003
by and between Kid Castle Educational Corporation, a Florida corporation having
an address at 0xx Xxxxx, 00, Xxx Xxxxx Xx., XxxxXxxx Xxxx, Xxxxxx Xxxxxx,
Xxxxxx, R.O.C. (the "Seller"), and XXXXXX INVESTMENTS LIMITED, a Samoa
international business company, the registered address of which is P.O. Box 217,
Apia, Samoa (the "Purchaser").
WHEREAS, Seller desires to sell to Purchaser 900,000 shares of the
Seller's common stock, no par value per share (the "Common Stock"), (the
"Shares") on the terms and conditions set forth in this Agreement; and
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the agreements, covenants and
representations hereinafter set forth, the receipt and adequacy of which is
hereby acknowledged, the parties, intending to be bound, agree as follows:
ARTICLE I
PURCHASE, SALE AND TERMS OF SHARES
1.1. The Shares. The Seller agrees to sell to the Purchaser in an
offshore transaction negotiated outside the U.S. and to be
consummated and closed outside the U.S. and, in consideration
of and in express reliance upon the representations,
warranties, covenants, terms and conditions of this Agreement,
the Purchaser agrees to purchase from the Seller, subject to
the conditions hereinafter set forth, 900,000 Shares of the
Seller at $0.7 price per share or $630,000, in the aggregate
(the "Purchase Price").
1.2. Price; Closing. The transaction will be closed at the
Purchaser's place of business, and the Purchaser will pay the
Purchase Price by wire transfer of immediately available funds
within 5 business days upon receipt of the share
certificate(s), which shall not be released or delivered until
Seller has received the Purchase Price for such Shares.
Purchaser shall initiate the closing process by sending a
written purchase notice to Seller at the address set forth
below (the "Purchase Notice"). The Purchase Notice shall set
forth the number of Shares to be purchased, the price per
share and the delivery date for the share certificates (the
"Closing"). The Purchase Notice shall be binding on Seller
unless Seller objects to the calculation of the Purchase Price
for the Shares set forth in the Purchase Notice.
1.3. Delivery of Purchase Notice. Until the Termination Date (as
defined below) Purchaser shall have the right to deliver its
Purchase Notice to Seller.
1.4. Representations by the Purchaser. The Purchaser makes the
following representations and warranties to the Seller:
A. Access to Information. The Purchaser, in making the
decision to purchase the Shares, has relied upon the
representations and warranties contained in this
Agreement, the representations and warranties of the
Seller as well as independent investigations made by
it and/or its representatives, if any. The Purchaser
and/or its representatives during the course of this
transaction, and prior to the purchase of any Shares,
has had the opportunity to ask questions of and
receive answers from the management of the Seller
concerning the business of the Seller and to receive
any additional information, documents, records and
books relative to the business, assets, financial
condition, results of operations and liabilities
(contingent or otherwise) of the Seller.
B. Sophistication and Knowledge. The Purchaser and/or
its representatives has such knowledge and experience
in financial and business matters that it can
represent itself and is capable of evaluating the
merits and risks of the purchase of the Shares. The
Purchaser is not relying on the Seller with respect
to the tax and other economic considerations of an
investment in the Shares, and the Purchaser has
relied on the advice of, or has consulted with, the
Purchaser's own advisor(s). The Purchaser represents
that it has not been organized for the purpose of
acquiring the Shares.
C. Lack of Liquidity. The Purchaser acknowledges that
the purchase of the Shares involves a high degree of
risk and further acknowledges that it can bear the
economic risk of the purchase of the Shares,
including the total loss of its investment. The
Purchaser represents and understands that the Shares
may not be sold to a U.S. Person (as hereinafter
defined) or into the United States for a period of
one (1) year from the date of purchase and that
Purchaser has no present need for liquidity in
connection with its purchase of the Shares.
D. No Public Solicitation. The Purchaser is not
purchasing the Shares as a result of or subsequent to
any advertisement, article, notice or other
communication published in any newspaper, magazine or
similar media or broadcast over television or radio,
or presented at any seminar or meeting, or any
solicitation of a subscription by a person not
previously known to the Purchaser in connection with
investments in securities generally. Neither the
Seller nor the Purchaser has engaged in any "Directed
Selling Efforts in the U.S." as defined in Regulation
S of the Securities Act of 1933, as amended (the
"Securities Act") ("Regulation S").
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E. Authority. The Purchaser has full right and power to
enter into and perform its obligations under this
Agreement, and this Agreement constitutes the
Purchaser's valid and legally binding obligation,
enforceable in accordance with its terms. The
Purchaser is authorized and otherwise duly qualified
to purchase and hold the Shares and to enter into
this Agreement.
F. Brokers or Finders. No person has or will have, as a
result of the transactions contemplated by this
Agreement, any right, interest or valid claim against
or upon the Seller for any commission, fee or other
compensation as a finder or broker because of any act
or omission by the Purchaser or its respective
agents.
G. Compliance with Local Laws. Any resale of the Shares
during the `distribution compliance period' as
defined in Rule 902(f) to Regulation S shall only be
made in compliance with exemptions from registration
afforded by Regulation S. Further, any such sale of
the Shares in any jurisdiction outside of the United
States will be made in compliance with the securities
laws of such jurisdiction. Purchaser will not offer
to sell or sell the Shares in any jurisdiction unless
the Purchaser obtains all required consents, if any.
H. Regulation S Exemption. The Purchaser understands
that the Shares are being offered and sold to it in
reliance on an exemption from the registration
requirements of United States federal and state
securities laws under Regulation S promulgated
pursuant to the Securities Act and that the Seller is
relying upon the truth and accuracy of the
representations, warranties, agreements,
acknowledgments and understandings of the Purchaser
set forth herein in order to determine the
applicability of such exemptions and the suitability
of the Purchaser to acquire the Shares. In this
regard, the Purchaser represents, warrants and agrees
that:
a. The Purchaser is not a U.S. Person (as defined
below) and is not an affiliate (as defined in
Rule 501(b) under the Securities Act) of the
Seller. A "U.S. person" means any one of the
following:
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;
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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:
(1) organized or incorporated under the
laws of any foreign jurisdiction; and
(2) 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) under the Securities Act)
who are not natural persons, estates
or trusts.
b. At the time of the origination of contact
concerning this Agreement and the date of
the execution and delivery of this Agreement,
the Purchaser was outside of the United States.
c. The Purchaser will not, during the period
commencing on the date of purchase of the
Shares and ending on the first anniversary of
such date, or such shorter period as may be
permitted by Regulation S or other applicable
securities law (the "Restricted Period"), offer,
sell, pledge or otherwise transfer the shares
in the United States, or to a U.S. person or for
the account or benefit of a U.S. person, or
otherwise in a manner that is not in compliance
with Regulation S.
d. The Purchaser will, after expiration of the
Restricted Period, offer, sell, pledge or
otherwise transfer the Shares only pursuant to
registration under the Securities Act or an
available exemption therefrom and, in accordance
with all applicable state and foreign securities
laws.
e. The Purchaser has not engaged in and prior to
the expiration of the Restricted Period will not
engage in, any short selling of or any
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hedging transaction with respect to the Shares within
the United States, including without limitation, any
put, call or other option transaction, option writing
or equity swap.
f. Neither the Purchaser nor or any person acting on its
behalf has engaged, nor will, during the Restricted
Period, engage in any directed selling efforts to any
U.S. person with respect to the Shares and the
Purchaser and any person acting on its behalf have
complied and will comply with the "offering
restrictions" requirements of Regulation S under the
Securities Act.
g. The transactions contemplated by this Agreement have
not been pre-arranged with a buyer located in the
United States or with a U.S. person, and are not part
of a plan or scheme to evade the registration
requirements of the Securities Act.
h. Neither the Purchaser nor any person acting on its
behalf has undertaken or carried out any activity for
the purpose of, or that could reasonably be expected
to have the effect of, conditioning the market in the
United States, its territories or possessions, for
any of the Shares. The Purchaser agrees not to cause
any advertisement of the Shares to be published in
any newspaper or periodical or posted in any public
place and not to issue any circular relating to the
Shares, except such advertisements that include the
statements required by Regulation S under the
Securities Act, and only offshore and not in the
United States or its territories, and only in
compliance with any local applicable securities laws.
i. Each certificate representing the Shares shall be
endorsed with the following legends, in addition to
any other legend required to be placed thereon by
applicable federal or state securities laws:
(A) "THE SHARES ARE BEING OFFERED TO
INVESTORS WHO ARE NOT U.S. PERSONS (AS
DEFINED IN REGULATION S UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("THE SECURITIES
ACT")) AND WITHOUT REGISTRATION WITH THE
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER
THE SECURITIES ACT."
(B) "TRANSFER OF THESE SHARES IS
PROHIBITED, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S, PURSUANT TO
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REGISTRATION UNDER THE SECURITIES ACT, OR
PURSUANT TO AVAILABLE EXEMPTION FROM
REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT."
j. The Purchaser consents to the Seller making a
notation on its records or giving instructions to any
transfer agent of the Seller in order to implement
the restrictions on transfer of the Shares set forth
in this Article 1.4.
k. Purchaser agrees that it will not transfer the
Shares, and the Seller shall not be required to
transfer the shares unless the transferee executes a
representation letter substantially in accordance
with Exhibit A hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
2.1. Organization and Standing of the Seller. Seller has been
organized and is validly existing and in good standing under
the laws of Florida. The Seller has the requisite corporate
power and authority necessary to deliver this Agreement and to
sell the Shares and to carry out the provisions of the
Agreement.
2.2. Authority of the Seller. The execution and delivery by the
Seller of the Agreement and the performance by the Seller of
its obligations hereunder, have been duly and validly
authorized by all requisite corporate action on the part of
the Seller. The Agreement, when executed and delivered, will
be legally valid and binding obligations of the Seller,
enforceable against the Seller in accordance with their
respective terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors'
rights, and general principles of equity that restrict the
availability of equitable remedies. To the Seller's knowledge,
the execution and delivery of the Agreement by the Seller and
the performance by the Seller of its obligations hereunder do
not, and will not at any time Purchaser delivers a Purchase
Notice, (i) conflict with or violate the provisions of the
Seller's Charter or Bylaws, (ii) require on the part of the
Seller any filing with, or any permit, authorization, consent
or approval of, any Governmental Entity, (iii) conflict with,
result in a breach of, constitute (with or without due notice
or lapse of time or both) a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify or cancel, or require any notice, consent or
waiver under, any contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of
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indebtedness, lien, encumbrance or other arrangement to which
the Seller is a party or by which Seller is bound or to which
the Seller's assets are subject, (iv) result in the imposition
of any security interest upon any assets of the Seller or (v)
violate or contravene any United States federal or state
statute, rule or regulation or any order, writ, judgment,
injunction, decree, determination or award.
2.3. Governmental Consents; Offering Exemption.
A. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration
or filing with, any governmental entity or regulatory
body (a "Governmental Entity") is required on the
part of the Seller in connection with the execution
and delivery of the Agreement, the offer, issue, sale
and delivery of the Shares or the other transactions
to be consummated as contemplated by this Agreement
except qualifications or filings under the Securities
Act and other applicable state securities laws which
qualifications or filings, if required, will be
obtained or made and will be effective within the
time periods required by law.
2.4. Litigation. To the best of the Seller's knowledge and belief,
there is no action, suit, proceeding or investigation pending
or is currently threatened, against the Seller. The Seller is
not aware of any basis for any of the foregoing or any intent
on its part to initiate any of the foregoing.
2.5. Brokers or Finders. The Seller has not agreed to incur,
directly or indirectly, any liability for brokerage or
finders' fees, agents' commissions or other similar charges
from Purchaser in connection with the Documents or any of the
transactions contemplated hereby or thereby.
2.6. Disclosures. The Seller has provided the Purchaser with all
information requested by the Purchaser in connection with its
decision to purchase the Shares. Neither this Agreement, any
Exhibit hereto, nor any report, certificate or instrument
furnished to the Purchaser or its agents in connection with
the transactions contemplated by this Agreement, when read
together, contains or will contain any material misstatement
of fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading.
ARTICLE III
REGISTRATION RIGHTS
3.1. Piggy-Back Registrations.
A. If, at any time after the first anniversary of
purchase of the Shares, the Seller shall determine to
register for its own account or the account of others
under the Securities Act (including pursuant to a
demand for registration of any stockholder of the
Seller) any of its equity securities,
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other than on Form S-4 or Form S-8 or their then equivalents
relating to shares of Common Stock to be issued solely in
connection with any acquisition of any entity or business or
shares of Common Stock issuable in connection with stock
option or other employee benefit plans, it shall send to the
Purchaser written notice of such determination and, if within
fifteen (15) days after receipt of such notice, the Purchaser
shall so request in writing, the Seller shall use its best
efforts to include in such registration statement all or any
part of the Registrable Shares the Purchaser requests to be
registered, except that if, in connection with the initial
public offering of the Seller, the managing underwriter shall
impose a limitation on the number of shares of such Common
Stock which may be included in the registration statement
because, in its judgment, such limitation is necessary to
effect an orderly public distribution, then the Seller shall
be obligated to include in such registration statement only
such limited portion of the Registrable Shares with respect to
which the Purchaser has requested inclusion hereunder on a pro
rata basis. For purposes of this Agreement, "Registrable
Shares" shall mean such number of Shares purchased under this
Agreement, provided, however, that shares of common Stock
which are Registrable Shares shall cease to be Registrable
Shares upon the consummation of any sale pursuant to a
registration statement or Rule 144 under the Securities Act.
3.2. Provisions Applicable to Registration. The following
provisions shall apply, as applicable, in connection with the
Registrable Shares to be included in the registration
statement pursuant to this Article 3:
A. The Purchaser, if reasonably requested by the Seller
or by the underwriter with respect to any public
offering, shall agree not to sell, make any short
sale of, loan, grant any options for the purchase of,
or otherwise dispose of any Registrable Shares (other
than those included in the registration) without the
prior written consent of the Seller or such
underwriters, as the case may be, for such period of
time (not to exceed one hundred eighty (180) days),
from the effective date of such registration
statement, or the commencement of the offering, as
applicable, as may be requested by the underwriters,
provided that all other holders of the class of
securities being registered shall make the same
agreements as those required to be made by the
Purchaser under this Article 3.2A.
B. The Purchaser shall promptly provide the Seller with
such non-confidential and non-proprietary information
as it shall reasonably request and that is available
to the Purchaser in order to prepare the registration
statement.
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C. All reasonable and necessary expenses in connection
with the preparation of the registration statement,
including, without limitation, any and all legal,
accounting and filing fees, but not including fees
and disbursements of experts and counsel retained by
the Purchaser or underwriting discounts and
commissions to be paid by the Purchaser, shall be
borne by the Seller.
D. The Seller shall use its best efforts to effect such
registration permitting the sale of such Registrable
Shares in accordance with the intended method or
methods of distribution thereof, and pursuant
thereto, the Seller shall as expeditiously as
possible:
a. prepare and file with the SEC a registration
statement relating to the applicable
registration on any appropriate form under
the Securities Act, which form shall be
available for the sale of the Registrable
Shares in accordance with the intended
method or methods of distribution thereof
and use its best efforts to cause such
registration statement to become effective
and keep such registration statement
effective in accordance with this Article
3.2;
b. prepare and file with the SEC such
amendments and post-effective amendments to
the registration statement as may be
necessary to keep the registration effective
until all such Registrable Shares are sold;
cause the prospectus to be supplemented by
any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply
with the provisions of the Securities Act
with respect to the disposition of all
securities covered by such registration
statement during the applicable period in
accordance with the intended method or
methods of distribution by the sellers
thereof as set forth in such registration
statement or supplement to the prospectus;
provided, however that the Seller may, from
time to time, request that the Purchaser
immediately discontinue the disposition of
the Registrable Shares if the Seller
determines, in the good faith exercise of
its reasonable business judgment, that the
offering and disposition of the Registrable
Shares could materially interfere with bona
fide financing, acquisition or other
material business plans of the Seller or
would require disclosure of non-public
information, the premature disclosure of
which could materially adversely affect the
Seller (it being acknowledged that the
Seller is not required to disclose in such
request any such transaction, plan or
non-public information), so long as the
Seller promptly after the disclosure of such
transaction, plan or non-public information
complies with this Article 3.2D(b);
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c. notify the Purchaser and the underwriter, if
any, promptly, and (if requested by any such
person) confirm such advice in writing, (A)
when the prospectus or any prospectus
supplement or post-effective amendment has
been filed, and, with respect to the
registration statement or any post-effective
amendment thereto, when the same has become
effective, (B) of any request by the SEC for
amendments or supplements to the
registration statement or the prospectus or
for additional information, (C) of the
issuance by the SEC of any stop order
suspending the effectiveness of the
registration statement or the initiation of
any proceedings for that purpose, (D) of the
receipt by the Seller of any notification
with respect to the suspension of the
qualification of the Registrable Shares for
sale in any jurisdiction or the initiation
of any proceedings for such purpose and (E)
subject to the proviso below, of the
happening of any event as a result of which
the prospectus included in such registration
statement, as then in effect, includes an
untrue statement of a material fact or omits
to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading in light
of the circumstances then existing and,
subject to Article 3.2D(b) above, at the
request of any such person, prepare and
furnish to such person a reasonable number
of copies of a supplement to or an amendment
of such prospectus as may be necessary so
that, as thereafter delivered to the
purchasers of such shares, such prospectus
shall not include an untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances
then existing; provided, however, the Seller
need not disclose the event if it otherwise
has not disclosed such event to the public;
d. if requested by the underwriter or the
Purchaser, promptly incorporate in a
prospectus supplement or post-effective
amendment such information as the
underwriter and the Purchaser agree should
be included therein relating to the plan of
distribution with respect to such
Registrable Shares, including, without
limitation, the purchase price being paid
therefor by such underwriters and with
respect to any other terms of the
underwritten offering of the Registrable
Shares to be sold in such offering; and make
all required filings of such prospectus
supplements or post-effective amendments as
soon as notified of the matters to be
incorporated in such prospectus supplements
or post-effective amendments;
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e. deliver to the Purchaser and the
underwriters, if any, without charge, as
many copies of the prospectus (including
each preliminary prospectus) in conformity
with the requirement of the Securities Act
and any amendments or supplements thereto as
such persons may reasonably request and such
other documents as they may reasonably
request to facilitate the prior sale or
other disposition of such Registrable
Shares;
f. prior to any public offering of Registrable
Shares, register or qualify or cooperate
with the Purchaser, or the underwriters, if
any, in connection with the registration or
qualification of such Registrable Shares for
offer and sale under the securities or blue
sky laws of such jurisdictions as the
Purchaser or underwriters, if any,
reasonably requests in writing and do any
and all other acts or things necessary or
advisable to enable the disposition in such
jurisdictions of the Registrable Shares
covered by the registration statement;
provided, however, that the Seller shall not
be required to qualify to do business in any
jurisdiction where it is not then so
qualified or to take any action that would
subject it to general service of process in
any such jurisdiction where it is not then
so subject or would subject the Seller to
any tax in any such jurisdiction where it is
not then so subject; and
E. Notwithstanding the provisions of this Article 3 to
the contrary, the Seller:
a. may require the Purchaser to furnish to the
Seller such information regarding the
distribution of such securities as the
Seller may from time to time reasonably
request in writing, and the Seller may limit
such registration rights to situations where
a proposed distribution of Registrable
Shares is to be effected forthwith upon the
effectiveness of the registration statement;
and
b. The undersigned will covenant that the
Purchaser has not taken, and will not take,
directly, or indirectly, any action
designed, or which might reasonably be
expected, to cause or result in, under the
Securities Exchange Act or otherwise, or
which has caused or resulted in,
stabilization or manipulation of the price
of any security of the Seller to facilitate
the sale or resale of the Registrable
Shares.
F. Indemnification.
a. In the event of a registration or
qualification of any Registrable Shares
under the Securities Act pursuant to the
provisions of this Article 3, the Seller
shall indemnify and hold harmless the
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Purchaser, the officers and directors of the
Purchaser and each director or officer of
any person or entity who controls the
Purchaser, each underwriter of such
Registrable Shares and each other person or
entity who controls the Purchaser or such
underwriter within the meaning of the
Securities Act (collectively, the
"Indemnitees"), from and against any and all
losses, claims, damages or liabilities,
joint or several, to which any of the
Indemnitees, joint or several, may become
subject under the Securities Act or the
applicable securities laws or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof)
arise out of or are based upon (x) any
untrue statement or alleged untrue statement
of any material fact contained in any
registration statement under which such
Registrable Shares were registered or
qualified under the Securities Act, or any
amendment or supplement thereto, any
preliminary prospectus or final prospectus
contained therein, or any supplement
thereto, or any document prepared and/or
furnished to the Purchaser incident to the
registration or qualification on any
Registrable Shares, or (y) the omission or
alleged omission to state in any
registration statement a material fact
required to be stated therein or necessary
to make the statements therein not
misleading or, with respect to any
prospectus, necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading, or (z)
any violation by the Seller of the
Securities Act or state securities or "blue
sky" laws applicable to the Seller and
relating to action or inaction required of
the Seller, in connection with such
registration or qualification under such
state securities or "blue sky" laws, and in
each case shall reimburse the Indemnitees
for any legal or other expenses reasonably
incurred by such Indemnitees in connection
with investigating or defending any such
loss, claim, damage or liability (or action
in respect thereof); provided, however, that
the Seller shall not be liable in any such
case to the extent that any such loss,
claim, damage or liability (or action in
respect thereof) arises out of or is based
upon an untrue statement or alleged untrue
statement or omission or alleged omission
made in such registration statement in
reliance upon and in conformity with
information furnished to the Seller through
an instrument duly executed by such
Indemnitees; and provided further, that the
Seller shall not be liable in any such case
to the extent that any such loss, claim,
damage or liability (or action in respect
thereof) arises out of or is based upon an
untrue statement or alleged untrue statement
or omission or alleged omission in such
registration statement, which untrue
statement or alleged untrue statement or
omission or alleged omission is
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completely corrected in an amendment or
supplement to the registration statement and
such the Indemnitee thereafter fails to
deliver or cause to be delivered such
registration statement as so amended or
supplemented prior to or concurrently with
the sale of the Registrable Shares to the
person asserting such loss, claim, damage or
liability (or actions in respect thereof) or
expense after the Seller has furnished the
Purchaser with the same.
b. In the event of the registration or
qualification of any Registrable Shares
under the Securities Act pursuant to the
provisions of this Article 3, the Purchaser
shall indemnify and hold harmless the
Seller, each person who controls the Seller
within the meaning of the Securities Act,
each officer and director of the Seller and
any other selling holder from and against
any losses, claims, damages or liabilities
to which the Seller, such controlling
person, any such officer or director or any
other selling holder may become subject
under the Securities Act or the applicable
securities laws or otherwise, insofar as
such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of
or are based upon (x) any untrue statement
or alleged untrue statement of any material
fact contained in any registration statement
under which such Registrable Shares were
registered or qualified under the Securities
Act, or any amendment or supplement thereto,
or (y) the omission or alleged omission to
state therein a material fact required to be
stated therein or necessary to make the
statements therein not misleading, which
untrue statement or alleged untrue statement
or omission or alleged omission was made
therein in reliance upon and in conformity
with written information furnished to the
Seller through an instrument duly executed
by the Purchaser specifically for use in
preparation thereof, and in each case shall
reimburse the Seller, such controlling
person, each such officer or director and
any other selling holder for any legal or
other expenses reasonably incurred by them
in connection with investigating or
defending any such loss, claim, damage or
liability (or action in respect thereof).
c. Promptly after receipt by a person entitled
to indemnification under this Article 3.2F
(an "Indemnified Party") of notice of the
commencement of any action or claim relating
to any registration statement filed under
the provisions of this Article 3 or as to
which indemnity may be sought hereunder,
such Indemnified Party shall, if a claim for
indemnification hereunder in respect thereof
is to be made against any other party hereto
(an "Indemnifying Party"), give written
notice to such Indemnifying Party of the
commencement of such action or claim, but
the omission so to
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notify the Indemnifying Party will not
relieve such person from any liability that
such person may have to any Indemnified
Party otherwise than pursuant to the
provisions of this Article 3.2F and shall
also not relieve the Indemnifying Party of
such party's obligations under this Article
3.2F, except to the extent that the omission
so to notify results in the Indemnifying
Party being damaged solely as a result of
the failure to give timely notice. In case
any such action is brought against an
Indemnified Party, and such party notifies
an Indemnifying Party of the commencement
thereof, the Indemnifying Party shall be
entitled (at such party's own expense) to
participate in and, to the extent that the
Indemnifying Party may wish, jointly with
any other Indemnifying Party similarly
notified, to assume the defense, with
counsel satisfactory to such Indemnified
Party, of such action and/or to settle such
action and, after notice from the
Indemnifying Party to such Indemnified Party
of its election so to assume the defense
thereof, the Indemnifying Party shall not be
liable to such Indemnified Party for any
legal or other expenses subsequently
incurred by such Indemnified Party in
connection with the defense thereof, other
than the reasonable cost of investigation;
provided, however, that no Indemnifying
Party and no Indemnified Party shall enter
into any settlement agreement that would
impose any liability on such other party or
parties without the prior written consent of
such other party or parties, unless such
other party or parties are fully indemnified
to such party's satisfaction, as the case
may be, against any such liability.
d. If for any reason the indemnification
provided for in this Article 3 is
unavailable to an Indemnified Party or is
insufficient to hold it harmless as
contemplated by this Article 3, then the
Indemnifying Party shall contribute to the
amount paid or payable by the Indemnified
Party as a result of such loss, claim,
damage, liability or action in such
proportion as is appropriate to reflect to
only the relative benefits received by the
Indemnified Party and the Indemnifying
Party, but also the relative fault of the
Indemnified Party and the Indemnifying
Party, as well as any other relevant
equitable considerations. No person guilty
of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from
any person who was not guilty of such
fraudulent misrepresentation.
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ARTICLE IV
MISCELLANEOUS
4.1. No Waiver; Cumulative Remedies. No failure or delay on the
part of any party to this Agreement in exercising any right,
power or remedy hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
4.2. Amendments, Waivers and Consents. Any provision in the
Agreement to the contrary notwithstanding, and except as
hereinafter provided, changes in, termination or amendments of
or additions to this Agreement may be made, and compliance
with any covenant or provision set forth herein may be omitted
or waived, if the Seller shall obtain consent thereto in
writing from the Purchaser. Any waiver or consent may be given
subject to satisfaction of conditions stated therein and any
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
4.3. Addresses for Notices. All notices, requests, demands and
other communications provided for hereunder shall be in
writing (including telegraphic communication) and mailed,
telegraphed or delivered to each applicable party at the
address set forth herein or at such other address as to which
such party may inform the other parties in writing in
compliance with the terms of this Article. All such notices,
requests, demands and other communications shall be considered
to be effective when delivered.
4.4. Costs, Expenses and Taxes. The Seller shall pay any and all
stamp, or other similar taxes payable or determined to be
payable in connection with the execution and delivery of this
Agreement , the issuance of any securities and the other
instruments and documents to be delivered hereunder or
thereunder (other than taxes on the Purchaser's income), and
agrees to save the Purchaser harmless from and against any and
all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes.
4.5. Effectiveness; Binding Effect; Assignment. This Agreement
shall be binding upon and inure to the benefit of the Seller
and the Purchaser and their respective successors and assigns;
provided, that, the Seller may not assign any of its rights or
obligations under this Agreement without the prior written
consent of the Purchaser. The Purchaser may assign all or any
part of its rights and obligations hereunder to any person who
acquires any Shares owned by the Seller subject to the
conditions of this Agreement and the assumption by the
assignee of any obligations relating to the rights assigned.
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4.6. Prior Agreements. This Agreement and other documents executed
and delivered in connection herewith constitute the entire
agreement between the parties and supersede any prior
understandings or agreements concerning the subject matter
hereof.
4.7. Severability. The provisions of this Agreement are severable
and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part
of a provision contained herein shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of the Agreement
and the terms of the Shares shall be reformed and construed as
if such invalid or illegal or unenforceable provision, or part
of a provision, had never been contained herein, and such
provisions or part reformed so that it would be valid, legal
and enforceable to the maximum extent possible.
4.8. Governing Law; Venue.
A. This Agreement shall be enforced, governed and
construed in accordance with the laws of New York
without giving effect to choice of laws principles or
conflict of laws provisions. Any suit, action or
proceeding pertaining to this Agreement or any
transaction relating hereto shall be brought to the
courts of New York in New York, United States of
America, and the undersigned hereby irrevocably
consents and submits to the jurisdiction of such
courts for the purpose of any such suit, action, or
proceeding. The parties acknowledges and agrees that
venue hereunder shall lie exclusively in New York,
United States of America.
B. Seller hereby waives, and agrees not to assert
against the Purchaser, or any successor assignee
thereof, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding,
(i) any claim that the Seller is not personally
subject to the jurisdiction of the above-named
courts, and (ii) to the extent permitted by
applicable law, any claim that such suit, action or
proceeding is brought in an inconvenient forum or
that the venue of any such suit, action or proceeding
is improper or that this Agreement may not be
enforced in or by such courts.
4.9. Headings. Article, section and subsection headings in this
Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any
other purpose.
4.10. Survival of Representations and Warranties. All
representations and warranties made in the Agreement, the
Shares, or any other instrument or document delivered in
connection herewith or therewith, shall survive the execution
and delivery hereof or thereof.
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4.11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
4.12. Further Assurances. From and after the date of this Agreement,
upon the request of the Seller or the Purchaser, the Seller
and the Purchaser shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the
intent and purposes of the Agreement and the Shares.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed as of the date first above written.
KID CASTLE EDUCATIONAL
CORPORATION
By: /s/ Xxxx Xx-En
_____________________________
Name:
Title:
XXXXXX INVESTMENTS LIMITED
By: /s/ Lo, Yi-Yun
_____________________________
Name: Lo, Yi-Yun
Title:
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