EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of January 8, 2013, by and between ChinaEdu Corporation, an exempted company
with limited liability incorporated under the laws of the Cayman Islands (the
"Purchaser"), and Columbia Pacific Opportunity Fund, L.P., (the "Seller"), with
reference to the following:
WHEREAS, the Seller owns American Depositary Shares (the "ADSs"), each
of which represents three ordinary shares, par value $0.01 per share in the
Purchaser; and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, an aggregate of 2,750,000 of such ADSs, of
which 97,242 will be sold and purchased on the date hereof (the "First Closing
Shares") and 2,652,758 will be sold and purchased at the Second Closing (as
defined herein) (the "Second Closing Shares", and together with the First
Closing Shares, the "Shares").
NOW, THEREFORE, in consideration of the conditions and promises herein
contained, and subject to the terms and conditions of this Agreement, the
parties hereto agree as follows:
1. Sale, Purchase and Closing.
1.1 At the Closings (as defined herein) and subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase from the Seller,
and the Seller agrees to sell to the Purchaser, all right, title and interest of
the Seller in and to the Shares, free and clear of all encumbrance (other than
those that arise under applicable securities laws).
1.2 The purchase and sale of the First Closing Shares (the "First
Closing") shall take place concurrently with the signing of this Agreement and
the purchase and sale of the Second Closing Shares (the "Second Closing", and
together with the First Closing, the "Closings") shall take place at 2:00 p.m.
(local time) on February 28, 2013 or such prior date as notified to the Seller
by the Purchaser two (2) business days in advance thereof (the "Second Closing
Date"). Each of the Closings shall be held at the offices of Loeb & Loeb LLP
Beijing Representative Office, Suite 4301, Tower C, Beijing Yintai Center, 2
Jianguomenwai Dajie, Chaoyang District, Beijing 100022, P.R. China, or at such
other time and place as the Seller and the Purchaser shall mutually agree.
1.3 The Purchaser shall pay US$5.60 per Share, or an aggregate price of
US$15,400,000 (the "Purchase Price") for the Shares, of which US$544,555.20
shall be paid at the First Closing (the "First Closing Payment") and the
remaining US$14,855,444.80 (the "Second Closing Payment") shall be paid at the
Second Closing, in each case by wire transfer of immediately available funds to
the Seller.
1.4 At the First Closing, the Seller shall deliver to the Purchaser:
(a) certificate(s) for the First Closing Shares duly assigned in blank or
accompanied by duly executed blank stock powers, or (b) a letter of
authorization to its broker instructing it to electronically transfer the First
Closing Shares to the Purchaser, as the case may be, and in each case in form
and substance reasonably satisfactory to the Purchaser; and such other documents
and instruments necessary to consummate the First Closing upon the terms and
conditions set forth in this Agreement, all of which shall be in form and
substance reasonably satisfactory to the Purchaser.
1.5 At the Second Closing, the Seller shall deliver to the Purchaser:
(a) certificate(s) for the Second Closing Shares duly assigned in blank or
accompanied by duly executed blank stock powers, or (b) a letter of
authorization to its broker instructing it to electronically transfer the Second
Closing Shares to the Purchaser, as the case may be, and in each case in form
and substance reasonably satisfactory to the Purchaser; and such other documents
and instruments necessary to consummate the Second Closing upon the terms and
conditions set forth in this Agreement, all of which shall be in form and
substance reasonably satisfactory to the Purchaser (collectively, "Seller Second
Closing Deliverables").
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2. Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as follows:
2.1 The Seller is the owner of record and holds good and valid title to
the Shares, and such Shares are free of any and all liens, encumbrances,
mortgages, deeds of trust, pledge, assignment, security interests or transfer
restrictions other than those specified herein and other than those that arise
under applicable securities laws.
2.2 The Seller has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby
including, without limitation, the authority to transfer the Shares to the
Purchaser, and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement.
2.3 This Agreement has been duly executed and delivered by the Seller
and constitutes the valid and binding agreement of the Seller enforceable
against the Seller in accordance with its terms.
2.4 The execution, delivery and performance of this Agreement by the
Seller does not contravene or conflict with: (i) the articles of association or
equivalent constitutional documents of the Seller; or (ii) with any material
agreement, contract or other instrument, or any law, rule, regulation, order or
decree, binding upon or applicable to the Seller, except, with respect to clause
(ii), for such contraventions or conflicts as would not reasonably be expected
have a material adverse effect on the ability of the Seller to consummate the
transactions contemplated by this Agreement.
2.5 The Seller is not party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the Purchaser for
an investment banking fee, commission, finder's fee or like payment in
connection with the transactions contemplated by this Agreement.
3. Representations and Warranties of Purchaser.
The Purchaser represents and warrants to the Seller as follows:
3.1 The Purchaser has all requisite power and authority (corporate and
otherwise) to execute, deliver and perform this Agreement and the transactions
contemplated hereby, and the execution, delivery and performance by the
Purchaser of this Agreement has been duly authorized by all requisite action
by the Purchaser.
3.2 This Agreement has been duly executed and delivered by the Purchaser
and constitutes the valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms.
3.1 The execution, delivery and performance of this Agreement by the
Purchaser does not contravene or conflict with: (i) the articles of association
of the Purchaser; or (ii) with any material agreement, contract or other
instrument, or any law, rule, regulation, order or decree, binding upon or
applicable to the Purchaser, except, with respect to clause (ii), for such
contraventions or conflicts as would not reasonably be expected have a material
adverse effect on the ability of the Purchaser to consummate the transactions
contemplated by this Agreement.
3.2 The Purchaser is not party to any contract, agreement or
understanding with any person that would give rise to a valid claim against any
Seller for an investment banking fee, commission, finder's fee or like payment
in connection with the transactions contemplated by this Agreement.
3.3 The Purchaser acknowledges and agrees that neither the Seller, nor
any of its representatives, affiliates and/or agents, has made any
representation or warranty to the Purchaser about the Purchaser, the Shares or
the Seller other than those representations and warranties expressly set forth
in this Agreement, and that the Purchaser has not relied upon any other
representation or warranty, express or implied, in purchasing the Shares.
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4. Conditions Precedent to Each Party's Obligations.
4.1 The obligation of the Seller to consummate the Second Closing shall
be subject to the satisfaction (or waiver by the Seller) of the following
conditions on or prior to the Second Closing Date: (i) the representations and
warranties of the Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the Second Closing Date with the
same effect as though such representations and warranties had been made on, as
of and with reference to the Second Closing Date; and (ii) the Seller shall have
received the Second Closing Payment in cash by wire transfer to an account or
accounts to be designated by the Seller.
4.2 The obligation of the Purchaser to consummate the Second Closing
shall be subject to the satisfaction (or waiver by the Purchaser) of the
following conditions on or prior to the Second Closing Date: (i) the
representations and warranties of the Seller contained in this Agreement shall
be true and correct in all material respects on and as of the Second Closing
Date with the same effect as though such representations and warranties had been
made on, as of and with reference to the Second Closing Date; (ii) the Purchaser
shall have received from the Seller, the Seller Second Closing Deliverables; and
(iii) the Purchaser shall have obtained the funds necessary to consummate the
purchase of the Second Closing Shares.
5. Covenants
5.1 From the date hereof through the Second Closing, except as
contemplated under this Agreement, the Seller shall not sell, assign, transfer,
pledge, hypothecate, mortgage, encumber or otherwise dispose of, through one or
a series of transactions any Shares to any person without the prior written
consent of the Purchaser.
5.2 From and after the date hereof and until the earlier to occur of the
Second Closing or the termination of this Agreement in accordance with Section
6, the Purchaser shall use its commercially reasonable efforts to obtain the
funds necessary to consummate the purchase of the Second Closing Shares.
5.3 Each of the parties hereto will use commercially reasonable efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable consistent with applicable law to
consummate and make effective in the most expeditious manner practicable the
transactions contemplated hereby.
6. Termination
6.1 This agreement may be terminated: (a) at any time before the Second
Closing by mutual written agreement of the parties; (b) by any party at any time
after February 28, 2013 (the "Outside Date") if the Second Closing shall not
have occurred on or before such date; provided, however, that the right to
terminate this Agreement under this Section 6.1(b) shall not be available to any
party whose action or failure to act has been the primary cause of or resulted
in the failure of the Second Closing to occur on or before the Outside Date and
such action or failure to act constitutes a breach of this Agreement; (c) by the
Seller on the one hand, or the Purchaser on the other, if there has been a
material breach of this Agreement, which cannot be cured before February 28,
2013, by the other party of any representation, warranty, covenant or agreement
hereunder or any representation or warranty of such other party shall have
become untrue after the date hereof; or (d) by the Seller if an offer is made
prior to the Second Closing to purchase a majority of the outstanding shares of
the Purchaser (whether by way of acquisition of ordinary shares, ADSs, or
otherwise), at a price per Share of US$6.00 or greater.
6.2 In the event of termination of this Agreement as provided in Section
6.1 hereof, this Agreement shall immediately become void and there shall be no
liability on the part of the Seller or the Purchaser, or their respective
affiliates or representatives, other than with respect to Section 7 hereof which
provisions shall survive such termination; provided, however, that nothing
contained in this Section 6.2 shall relieve or limit the liability of any party
to this Agreement for any fraudulent or willful breach of this Agreement.
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7. Miscellaneous
7.1 No party may sell, license, transfer or assign (by operation of law
or otherwise) any of such party's rights or interests in this Agreement or
elegate such party's duties or obligations under this Agreement, in whole or in
part, without the prior written consent of the other party. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
7.2 This Agreement, including any and all exhibits hereto, constitutes
the entire agreement between the parties hereto. The provisions of this
Agreement supersede all previous communications, negotiations, representations
or agreements, either oral or written, with respect to any transaction relating
to or arising from this Agreement or terms described herein. This Agreement may
be modified or amended only by a written document executed by all parties.
7.3 This Agreement may be executed in any number of counterparts, and
each such counterpart of this Agreement shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. Facsimile counterpart signatures to this Agreement shall be
acceptable and binding.
7.4 All representations and warranties made by any party in connection
with any transaction contemplated by this Agreement shall survive the execution
and delivery of this Agreement, the performance or consummation of any
transaction described in this Agreement, and the termination of this Agreement.
7.5 This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York, USA, without giving effect to
the principles of conflicts of laws thereof to the extent that the application
of the laws of another jurisdiction would be required thereby.
7.6 The parties hereto agree that if irreparable damage for which
monetary damages, even if available, would not be an adequate remedy would occur
in the event that any of the provisions of this Agreement was not performed in
accordance with its specified terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or other equitable
relief to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction, this being
in addition to any other remedy to which they are entitled at law or in equity.
IN WITNESS HEREOF, the parties hereto have caused their respective duly
authorized representatives to execute this Agreement as of the date first
above written.
COLUMBIA PACIFIC OPPORTUNITY FUND, L.P.
/s/ Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxx
Title: Managing Member
CHINAEDU CORPORATION
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Chief Executive Officer
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