STOCK PLEDGE AGREEMENT
Exhibit
10.8
STOCK PLEDGE AGREEMENT (this
“Agreement”),
dated January 22, 2010 by and among ________________________________________
(“Pledgor”);
the subscribers who are parties to a certain Subscription Agreement among China
Yongxin Pharmaceuticals, Inc., a Delaware corporation (“Borrower”), and such
Subscribers identified on Schedule I hereto (each a
“Pledgee”); and
Collateral Agents, LLC, a Delaware Limited Liability Company (“Collateral Agent”) on
behalf of Pledgees;
WITNESSETH:
WHEREAS, the Pledgee will lend
up to the amount set forth on Schedule I hereto to Borrower,
with such loan to be evidenced by one or more convertible promissory Notes (each
a “Note”);
and
WHEREAS, Pledgor is a
shareholder, officer and/or director of Borrower, and it is to his benefit and
advantage that the loan is made and the Note is issued; and
WHEREAS, in order to induce
Pledgee to make the loan and accept the Note, the Pledgor has agreed to secure
all of the Borrower’s obligations under the Note with the grant to the Pledgee
of a first priority security interest in Pledgor’s shares of Borrower’s $.001
par value Common Stock, which Common Stock is owned of record and beneficially
controlled by the Pledgor.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions.
The
following terms shall have the following meanings wherever used in this
Agreement:
· “Event of Default”
shall have the meaning given thereto in the Note.
· “Loan” means the
advance of funds under the Note.
· “Obligations” shall
mean all principal and interest and other payments which may be due and payable
under the Note, whether upon stated maturity, by acceleration, or otherwise,
outstanding at any time and under this Agreement, and pursuant to the
“Transaction Documents” as defined in the “Subscription Agreement” pursuant to
which the Note is being issued.
· “Pledged Stock” shall
mean in the aggregate, _____________ shares of $0.001 par value Common Stock of
Borrower.
· “Satisfaction Date”
shall mean that date on which all of the Obligations have been indefeasibly paid
or otherwise satisfied in full.
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· All
other capitalized terms shall have the meanings ascribed to them in the
Transaction Documents.
2. Pledge of the Pledged
Stock/Additional Deposits.
(a) As
security for the due and timely payment and performance of all of the
Obligations, the Pledgor pledges to the Pledgee, and grants to the Pledgee a
first priority lien and security interest in, all of the Pledged Stock (as same
are constituted from time to time), together with all cash dividends, stock
dividends, interest, profits, premiums, redemptions, warrants, subscription
rights, options, substitutions, exchanges and other distributions now or
hereafter made on the Pledged Stock and all cash and non-cash proceeds thereof,
until the Satisfaction Date. The Pledged Stock and all property at
any time pledged to the Pledgee hereunder or in which the Pledgee is granted a
security interest (whether described herein or not) and all income therefrom and
proceeds thereof are herein included in the definition of Pledged
Stock. The Pledged Stock includes all Pledged Stock in which Pledgor
has a direct or indirect interest or beneficial interest regardless of the
manner in which title is held or the name of the holder of the Pledged Stock on
the books and records of Borrower or its transfer agent.
(b) In
furtherance of the pledge hereunder, the Pledgor is, concurrently herewith,
delivering to the Pledgee, the certificates representing all of the Pledged
Stock, each of which now remains in the name of the Pledgor and accompanied by
appropriate undated stock powers duly endorsed in blank by the Pledgor bearing
“medallion” signature guarantees.
(c) If,
while this Agreement is in effect, the Pledgor becomes entitled to receive or
receives any stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
conversion, reclassification, increase or reduction of capital or issued in
connection with any reorganization), option or rights, whether as an addition
to, in substitution of, or in exchange for, any Pledged Stock or otherwise, the
Pledgor agrees to accept the same as agent for the Pledgee, to hold the same in
trust on behalf of and for the benefit of the Pledgee, and to deliver the same
forthwith to the Pledgee in the exact form received, with the endorsement of the
Pledgor when necessary and/or appropriate undated “medallion” stock or other
powers duly executed in blank, to be held by the Pledgee, subject to the terms
hereof, as additional collateral security for the Obligations. Any
sums paid on or in respect of the Pledged Stock on the liquidation or
dissolution of the Pledgor shall be paid over to the Pledgee, to be held by the
Pledgee, subject to the terms and conditions hereof, as additional collateral
security for the Obligations.
3. Retention of the Pledged
Stock.
(a) Except
as otherwise provided herein, the Pledgee shall have no obligation with respect
to the Pledged Stock, except to use reasonable care in the custody and
preservation thereof, to the extent required by law.
(b) The
Pledgee shall hold the Pledged Stock in the form in which same are delivered
herewith, unless and until there shall occur an Event of Default.
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4. Rights of the
Pledgor. Throughout the term of this Agreement, so long as an
Event of Default has not occurred and is continuing, the Pledgor shall have the
right to vote the Pledged Stock in all matters presented to the stockholders of
the Borrower for vote thereon, except in a manner inconsistent with the terms of
this Agreement or detrimental to the interests of the Pledgee.
5. Event of Default; Rights of
Pledgee; Power of Attorney.
(a) Upon
the occurrence and during the continuance of any Event of Default, the Pledgee
shall have the right to: (i) exercise all voting and corporate rights of, and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to, any Pledged Stock as if the Pledgee were the absolute
owner thereof, including (without limitation) in connection with the merger,
consolidation, reorganization, recapitalization or other readjustment of the
Borrower or Pledgor or upon the exercise by the Pledgor or the Pledgee of any
right, privilege or option pertaining to any of the Pledged Stock and, in
connection therewith, to deposit and deliver any and all of the Pledged Stock
with any committee, depository, transfer agent, registrar or other designated
agency on such terms and conditions as the Pledgee may determine, all without
liability except to account for property actually received by it; (ii) apply any
funds or other property received in respect of the Pledged Stock to the
Obligations, and receive in its own name any and all further distributions which
may be paid in respect of the Pledged Stock, all of which shall, upon receipt by
the Pledgee, be applied to the Obligations; (iii) transfer all or any portion of
the Pledged Stock (as determined by the Pledgee in its discretion) on the books
of the Pledgor to and in the name of the Pledgee or such other person or persons
as the Pledgee may designate; (iv) effect any commercially reasonable sale,
transfer or disposition of all or any portion of the Pledged Stock and in
furtherance thereof, take possession of and endorse any and all checks, drafts,
bills of exchange, money orders or other documents and instruments received on
account of the Pledged Stock; (v) collect, xxx for and give acquittance for any
money due on account of any of the foregoing; and (vi) take any and all other
action contemplated by this Agreement, or as otherwise permitted by law, or as
the Pledgee may reasonably deem necessary or appropriate, in order to accomplish
the purposes of this Agreement.
(b) In
furtherance of the foregoing powers of the Pledgee, the Pledgor hereby
authorizes and appoints the Pledgee, effective upon the occurrence and during
the continuation of an Event of Default, with full powers of substitution, as
the true and lawful attorney-in-fact of the Pledgor, in his name, place and
xxxxx, to take any and all such action as the Pledgee, in its sole discretion,
may deem necessary or appropriate in furtherance of the exercise of the
aforesaid powers. Such power of attorney shall be coupled with an
interest, and shall be irrevocable until the Satisfaction Date. Without
limitation of the foregoing, such power of attorney shall not in any manner be
affected or impaired by reason of any act of the Pledgor or by operation of
law. Nothing herein contained, however, shall be deemed to require or
impose any duty upon the Pledgee to exercise any of the rights or powers granted
herein.
(c) The
foregoing rights and powers granted to the Pledgee, and the foregoing power of
attorney, shall be fully binding upon any person who may acquire any beneficial
interest in any of the Pledged Stock or any other property held or received by
the Pledgee hereunder.
6. Foreclosure; Sale of Pledged
Stock.
(a) Without
limitation of paragraph 5 above, in the event that the Pledgee shall make any
sale or other disposition of any or all of the Pledged Stock following an Event
of Default, the Pledgee may also:
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(i) offer
and sell, in a commercially reasonable manner, all or any portion of the Pledged
Stock publicly through a registered broker-dealer, or by means of a private
placement restricting the offer or sale to a limited number of prospective
purchasers who meet such suitability standards as the Pledgee and its counsel
may deem appropriate, and who may be required to represent that they are
purchasing Pledged Stock for investment and not with a view to
distribution;
(ii) sell
any or all of the Pledged Stock upon credit or for future delivery, in a
commercially reasonable manner, without being in any way liable for failure of
the purchaser to pay for the subject Pledged Stock; and
(iii) receive
and collect the net proceeds of any sale or other disposition of any Pledged
Stock, and apply same in such order and to such of the Obligations (including
the customary costs and expenses of the sale or disposition of the Pledged
Stock) as the Pledgee may, in its absolute discretion, deem
appropriate.
(b) Upon
any sale of any of the Pledged Stock in accordance with this Agreement, the
Pledgee shall have the right to assign, transfer and deliver the subject Pledged
Stock to the purchaser(s) thereof, and each such purchaser shall be entitled to
hold such Pledged Stock absolutely free from any right or claim of the Pledgor
and/or any other person claiming any beneficial interest in the Pledged Stock,
including any equity of redemption (which right and all other such rights are
hereby waived by the Pledgor to the fullest extent permitted by
law).
(c) Following
the occurrence and during the existence of an Event of Default, Pledgor will
cooperate and provide such certificate, resolutions, representations, legal
opinions and all other matters necessary to facilitate a transfer or sale of any
part of the Pledged Stock.
(d) Nothing
herein contained shall be deemed to require the Pledgee to effect any sale or
disposition of any Pledged Stock at any time, or to consummate any proposed
public or private sale at the time and place at which same was initially
called. It is the intention of the parties hereto that the Pledgee
shall, subject to any further conditions imposed by this Agreement, upon the
occurrence and during the continuation of an Event of Default, have the right to
use or deal with the Pledged Stock as if the Pledgee were the outright owner
thereof, and to exercise any and all rights and remedies, as a secured party in
possession of collateral or otherwise, under any and all provisions of
law.
(e) The
Pledgee may exercise its rights with respect to each and every component of the
Pledged Stock, without regard to the existence of any other security or source
of payment for, in order to satisfy the Obligations. In addition to
other rights and remedies provided for herein or otherwise available to
it, the Pledgee shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code then in effect in the State of New
York.
(f) Pledgee
is authorized, at any such sale, if the Pledgee deems it advisable to do so, in
order to comply with any applicable securities laws, to restrict the prospective
bidders or purchasers to persons who will represent and agree, among other
things, that they are purchasing the Pledged Stock for their own account for
investment, and not with a view to the distribution or resale thereof, or
otherwise to restrict such sale in such other manner as the Pledgee deems
advisable to ensure such compliance. Sales made to the highest bidder
in pursuant to such restricted sale shall be deemed to have been made in a
commercially reasonable manner.
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(g) All
proceeds received by Pledgees in respect of any sale, collection or other
enforcement or disposition of Pledged Stock, shall be applied (after deduction
of any amounts payable to Pledgees pursuant to Paragraph 10 hereof) against the
Obligations. Upon payment in full of all Obligations, Pledgor
shall be entitled to the return of all Pledged Stock, including cash, which has
not been used or applied toward the payment of Obligations or used or applied to
any and all costs or expenses of the Pledgees incurred in connection with the
liquidation of the Pledged Stock (unless another person is legally entitled
thereto). Any assignment of Pledged Stock by the Pledgees to Pledgor
shall be without representation or warranty of any nature whatsoever and wholly
without recourse. To the extent allowed by law, each Pledgee may
purchase the Pledged Stock and may pay for such purchase by offsetting the
purchase price with such Pledgees proportionate share of the Obligations owed to
such Pledgee by Borrower arising under the Obligations or any other source;
provided however, that if any Pledgee shall purchase Pledged Stock, the per
share purchase price therefor shall be no less than 100% of the average closing
bid price of the Common Stock as reported by Bloomberg L.P. for the Principal
Market for the five (5) trading days immediately preceding the Event of Default
giving rise to the right of Pledgees to dispose of the Pledged Stock under this
Agreement.
(h) Without
limiting, and in addition to, any other rights, options and remedies Pledgee has
under the Transaction Documents, the UCC, at law or in equity, or otherwise,
upon the occurrence and continuation of an Event of Default, Pledgee shall have
the right to apply for and have a receiver appointed by a court of competent
jurisdiction. Pledgor expressly agrees that such a receiver will be
able to manage, protect and preserve the Pledged Stock and until a sale or other
disposition of the Pledged Stock shall be finally made and
consummated. Pledgor waives any right to require a bond to be posted
by or on behalf of any such receiver.
7. Covenants, Representations
and Warranties.
In
connection with the transactions contemplated by this Agreement, and knowing
that the Pledgee is and shall be relying hereon, the Pledgor hereby covenants,
represents and warrants that:
(a) the
Pledged Stock has been and will be duly and validly issued, is and will be fully
paid and non-assessable, and is and will be owned by the Pledgor free and clear
of any and all restrictions, pledges, liens, encumbrances or other security
interests of any kind, save and except for the pledge to the Pledgee pursuant to
this Agreement;
(b) there
are and will be no options, warrants or other rights in respect of the sale,
transfer or other disposition of any of the Pledged Stock by the Pledgor, and
the Pledgor has the absolute right to pledge the Pledged Stock hereunder without
the necessity of any consent of any Person;
(c) neither
the execution or delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, nor the compliance with or performance of this
Agreement by the Pledgor, conflicts with or will result in the breach or
violation of or a default under the terms, conditions or provisions of (i) any
mortgage, security agreement, indenture, evidence of indebtedness, loan or
financing agreement, or other agreement or instrument to which the Pledgor is a
party or by which the Pledgor is bound, or (ii) any provision of law, any order
of any court or administrative agency, or any rule or regulation applicable to
the Pledgor or Borrower;
(d) this
Agreement has been duly executed and delivered by the Pledgor, and constitutes
the legal, valid and binding obligation of the Pledgor, enforceable against the
Pledgor in accordance with its terms;
(e) there
are no actions, suits or proceedings pending or threatened against or affecting
the Pledgor that involve or relate to the Pledged Stock; and
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(f) upon
execution of this Agreement by Pledgor, the Pledgee shall have the senior
security interest in the Pledged Stock.
8. UCC
Filings. Pledgor hereby grants to Pledgee the right and
authority at Pledgee’s expense, to file UCC Financing Statements in Washington,
D.C., Delaware, New York and any other jurisdiction in the sole discretion of
Pledgee to memorialize the security interest herein granted.
9. Return of the Pledged
Stock. To the extent that the Pledgee shall not previously
have taken, acquired, sold, transferred, disposed of or otherwise realized value
on the Pledged Stock in accordance with this Agreement, at the Satisfaction
Date, any security interest in the Pledged Stock shall automatically terminate,
cease to exist and be released, and the Pledgee shall forthwith return the
Pledged Stock to and in the name of the Pledgor, and file, at Pledgor’s
reasonable expenses, releases of Pledgee’s security interest in the Pledged
Stock.
10. Expenses of the
Pledgee. All reasonable expenses incurred by the Pledgee
(including but not limited to reasonable attorneys’ fees) in connection with any
actual or attempted sale or other disposition of Pledged Stock hereunder shall
be reimbursed to the Pledgee by the Pledgor on demand, or, at the Pledgee’s
option, such expenses may be added to the Obligations and shall be payable on
demand.
11. Further
Assurances. From time to time hereafter, each party shall take
any and all such further action, and shall execute and deliver any and all such
further documents and/or instruments, as any other party may reasonably request
in order to accomplish the purposes of and fulfill the parties’ obligations
under this Agreement, and in order to enable the Pledgee to exercise any of its
rights hereunder.
12. Miscellaneous.
(a) All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
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To
Pledgor:
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x/x
Xxxxx Yongxin Pharmaceuticals, Inc.
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000
Xxxxxx Xxxxx
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Xxxx
xx Xxxxxxxx, XX 00000
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Attn:
Xxxxxxx Xxx, CEO
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Fax:
(000) 000-0000
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With
a copy by facsimile only to:
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Xxxxxxxxxx
& Xxxxx, LLP
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00000
Xxxxxxxx Xxxx., Xxxxx 000
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Xxx
Xxxxxxx, XX 00000
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Attn:
Xxxx Xxxx, Esq.
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Fax:
(000)
000-0000
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To
Pledgees:
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As
identified on Schedule I hereto
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To
Collateral Agent:
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Collateral
Agents, LLC
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000
Xxxx 00xx
Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attn:
General Counsel
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Fax:
(000) 000-0000
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If
to Pledgor, Pledgees,
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or
Collateral Agent
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with
a copy by telecopier only to:
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Grushko
& Xxxxxxx, P.C.
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000)
000-0000
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(b) If
any notice to Pledgor of the sale or other disposition of Pledged Stock is
required by then applicable law, five (5) business days prior written notice
(which Pledgor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code) to Pledgor of the time and place of any
sale of Pledged Stock which Pledgor agrees may be by private
sale. The rights granted in this Section are in addition to any and
all rights available to Pledgee under the Uniform Commercial Code.
(c) The
laws of the State of New York including but not limited to Article 9 of the
Uniform Commercial Code as in effect from time to time, shall govern the
construction and enforcement of this Agreement and the rights and remedies of
the parties hereto. The parties hereby consent to the exclusive
jurisdiction of all courts sitting in the State and County of New York, in
connection with any action or proceeding under or relating to this Agreement,
and waive trial by jury in any such action or proceeding.
(d) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns. The Pledgor shall
not, however, assign any of its or his rights or obligations hereunder without
the prior written consent of the Pledgee, and the Pledgee shall not assign its
rights hereunder without simultaneously assigning its obligations hereunder to
the subject assignee. Except as otherwise referred to herein, this
Agreement, and the documents executed and delivered pursuant hereto, constitute
the entire agreement between the parties relating to the specific subject matter
hereof.
(e) Neither
any course of dealing between the Pledgor and the Pledgee nor any failure to
exercise, or any delay in exercising, on the part of the Pledgee, any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege operate as a waiver
of any other exercise of such right, power or privilege or any other right,
power or privilege.
(f) The
rights of the Pledgees hereunder, except as otherwise set forth herein shall be
exercised upon the approval of Pledgees holding 75% of the outstanding
Obligations (“Majority in Interest”) at the time such approval is sought or
given. Any tangible or physical Pledged Stock shall be delivered to
and be held by the Collateral Agent pursuant to this Agreement and on behalf of
all Pledgees as to their respective rights.
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(g) The
Collateral Agent was appointed by the Pledgees pursuant to a Collateral Agent
Agreement of even date herewith. All of the rights and benefits
granted to the Pledgees pursuant to this Agreement, including the security
interest and enforcement rights are also granted to the Collateral Agent and
will be exercised by Collateral Agent on behalf of Pledgees pursuant to the
Collateral Agent Agreement. All deliveries required to be made by
Pledgors hereunder shall be made to the Collateral Agent.
(h) The
Pledgee’s rights and remedies, whether hereunder or pursuant to any other
agreements or by law or in equity, shall be cumulative and may be exercised
singly or concurrently and by the Escrow Agent on Pledgee’s behalf or pursuant
to the Escrow Agreement.
(i) No
change, amendment, modification, waiver, assignment of rights or obligations,
cancellation or discharge hereof, or of any part hereof, shall be valid unless
the Pledgee shall have consented thereto in writing.
(j) The
captions and paragraph headings in this Agreement are for convenience of
reference only, and shall not in any way define, limit or describe the
construction, terms or provisions of this Agreement.
(k) If
any provision of this Agreement is held invalid or unenforceable, either in its
entirety or by virtue of its scope or application to given circumstances, such
provision shall thereupon be deemed modified only to the extent necessary to
render same valid, or not applicable to given circumstances, or excised from
this Agreement, as the situation may require, and this Agreement shall be
construed and enforced as if such provision had been included herein as so
modified in scope or application, or had not been included herein, as the case
may be.
(l) This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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CHINA
YONGXIN PHARMACEUTICALS, INC., a Delaware corporation, acknowledges the
execution of the foregoing Stock Pledge Agreement and agrees to cooperate with
the Pledgees and Collateral Agent and further agrees not to take any action or
suffer inaction inconsistent with the Pledgees’ and Collateral Agent’s lawful
rights under the Stock Pledge Agreement.
IN WITNESS WHEREOF, the
parties hereto have executed this Stock Pledge Agreement on and as of the date
first set forth above.
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CHINA
YONGXIN PHARMACEUTICALS, INC.
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a
Delaware corporation
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By:
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Name:
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Title:
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PLEDGOR:
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9
OMNIBUS
PLEDGEE SIGNATURE PAGE TO
The
undersigned, in its capacity as a Pledgee, hereby executes and delivers the
Stock Pledge Agreement to which this signature page is attached and agrees to be
bound by the Stock Pledge Agreement on the date set forth on the first page of
the Stock Pledge Agreement. This counterpart signature page, together with all
counterparts of the Stock Pledge Agreement and signature pages of the other
parties named therein, shall constitute one and the same instrument in
accordance with the terms of the Stock Pledge Agreement.
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[Print
Name of Pledgee]
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[Name
of Co-Pledgee, if applicable]
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[Signature]
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[Signature]
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Name:
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Name:
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Title:
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Title:
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Mailing
Address:
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Telephone
No.:_____________________________
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Facsimile
No:_______________________________
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Email
Address:______________________________
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(City,
State and Zip)
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10
COLLATERAL
AGENT SIGNATURE PAGE TO
STOCK
PLEDGE AGREEMENT
The
undersigned, in its capacity as a Collateral Agent, hereby executes and delivers
the Stock Pledge Agreement to which this signature page is attached and agrees
to be bound by the Stock Pledge Agreement on the date set forth on the first
page of the Stock Pledge Agreement. This counterpart signature page,
together with all counterparts of the Stock Pledge Agreement and signature pages
of the other parties named therein, shall constitute one and the same instrument
in accordance with the terms of the Stock Pledge Agreement.
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COLLATERAL
AGENT:
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COLLATERAL
AGENTS, LLC
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By:
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Name:
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Title:
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11
Schedule
I
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SUBSCRIBER
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AMOUNT
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EXCALIBUR
SPECIAL OPPORTUNITIES LP
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$ | 300,000.00 | ||
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XXXX
XXXXXXXXXXX
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$ | 50,000.00 | ||
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FOURTH
STREET HOLDINGS, LP
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$ | 100,000.00 | ||
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XXXXXX
X. XXXX
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$ | 100,000.00 | ||
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XXXXX
X. XXXXXXX
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$ | 50,000.00 | ||
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TOTAL
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$ | 600,000.00 | ||
12
