STOCK PURCHASE AGREEMENT
EXECUTION
VERSION
STOCK
PURCHASE AGREEMENT (this “Agreement”) made as of this 22nd day of
June, 2009 between and among Pantheon China Acquisition Corp. (“Buyer” or
“Pantheon”) and the signatories on the execution page hereof (each a “Seller”
and collectively the “Sellers”).
WHEREAS,
Pantheon was organized for the purpose of acquiring, through a stock exchange,
asset acquisition or other similar business combination, or control, through
contractual arrangements, an operating business that has its principal
operations located in the People’s Republic of China (“Business
Combination”).
WHEREAS,
Pantheon consummated an initial public offering in December 2006 (“IPO”) in
connection with which it raised net proceeds of approximately $32.7 million that
were placed in a trust account (the “Trust Account”) maintained by Continental
Stock Transfer and Trust Company (“Continental”) pending the consummation of a
Business Combination, or the dissolution and liquidation of Pantheon, in the
event it is unable to consummate a Business Combination by December 14,
2008.
WHEREAS,
Pantheon, following approval by its stockholders, amended its certificate of
incorporation (the “Extension Amendment”), to extend the time in which it must
complete a Business Combination before it is required to be liquidated and grant
conversion rights to holders of its public common stock in connection with such
vote to approve the Extension Amendment.
WHEREAS,
in connection with the Extension Amendment, Pantheon entered into a certain Put
and Call Option Agreement with Modern Develop Limited (“Modern”), Xxxx X. Xxxx
and the Sellers, pursuant to which Modern has the right to purchase from the
Sellers certain shares of common stock of Pantheon sold in the initial public
offering owned by it and the Sellers has the right to sell such shares to Modern
(the “Put and Call Agreement”).
WHEREAS,
Pantheon, through its wholly owned subsidiary, Pantheon Arizona Corp. (“Pantheon
Arizona”), has agreed to acquire (the “Acquisition”) substantially all (93.94%)
of the outstanding ordinary shares of China Cord Blood Services Corporation
pursuant to certain agreements (the “Transaction Agreements”).
WHEREAS,
the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of majority of Pantheon’s outstanding shares of
common stock which are present and entitled to vote at the meeting.
WHEREAS,
pursuant to certain provisions in Pantheon’s certificate of incorporation, a
holder of shares of common stock of Pantheon issued in the IPO may, if s/he/it
votes against the Acquisition, demand that Pantheon convert such shares into
cash (“Conversion Rights”).
WHEREAS,
the Acquisition is subject to the exercise of Conversion Rights by holders of
less than 20% of the Pantheon shares of common stock issued in the
IPO.
WHEREAS,
the Sellers have agreed to sell to Buyer and Buyer has agreed to purchase from
the Sellers the shares of common stock set forth on the execution page of this
Agreement (“Shares”) for the purchase price per share set forth thereon (which
is equal to the per Share value of the Trust Account) (“Purchase Price Per
Share”) and for the aggregate purchase price set forth thereon (“Aggregate
Purchase Price”).
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase. The Sellers
hereby sell to Buyer and Buyer hereby purchases from the Sellers at the Closing
(as defined in Section 2.1) the Shares at the Purchase Price per Share, for the
Aggregate Purchase Price.
2. Agreement not to Convert;
Appointment of Attorney in Fact. In further consideration of
the Aggregate Purchase Price, provided that the representations and warranties
made by Buyer in Section 4.1 hereof are true and correct on the date of the
stockholder meeting in connection with the approval of the Acquisition with the
same effect as though made on such date and Buyer has complied in all material
respects with its obligations set forth in this Agreement through such date,
each Seller hereby agrees it has not and will not exercise its Conversion
Rights. Because the record date to vote on the proposals set forth in
the proxy statement included in the Registration Statement on Form S-4 filed by
Pantheon Arizona with the U.S. Securities Exchange Commission (the “Proxy
Statement”) has passed, Buyer would not be entitled to vote the Shares at the
shareholders meeting contemplated by the Proxy
Statement. Accordingly, solely with respect to the vote for the
Acquisition and related proposals as set forth in the Proxy Statement, each
Seller hereby irrevocably appoints Xxxx X. Xxxx, with full power of
substitution, to the full extent of such Seller’s rights with respect to the
Shares (and any and all other Shares or securities or rights issued or issuable
in respect thereof) to vote in such manner as each such attorney and proxy or
his substitute shall in his sole discretion deem proper, and otherwise act
(including without limitation pursuant to written consent) with respect to all
the Shares sold hereunder which such Seller is entitled to vote at any meeting
of stockholders (whether annual or special and whether or not an adjourned
meeting) of Pantheon held on or prior to June 30, 2009. This
proxy is coupled with an interest in the Shares and is
irrevocable. The execution of this Agreement shall revoke, without
further action, all prior proxies granted by the Sellers at any time with
respect to such Shares (and any such other Shares or other securities) and no
subsequent proxies will be given (and if given will be deemed not to be
effective) with respect thereto by the Sellers.
2.1 Closing. The closing
of the purchase of the Shares (“Closing”) by Buyer will occur on or before June
30, 2009, but in no event may the Closing be later than the date the Buyer’s
Trust Account is liquidated in connection with the consummation of the
Acquisition (the “Closing Date”). The Closing shall be effected
delivery versus payment via the Depository Trust Company. It shall be
a condition to the obligation of Buyer on the one hand and the Sellers on the
other hand, to consummate the transfer of the Shares contemplated hereunder that
the other party’s representations and warranties are true and correct on the
Closing Date with the same effect as though made on such date, unless waived in
writing by the party to whom such representations and warranties are
made.
2
2.2 At
or before the Closing, the Sellers shall deliver or cause to be delivered to
Buyer appropriate instructions for book entry transfer of ownership of the
Shares from the Sellers to Buyer. In addition, within two business
days of the date of this Agreement, the Sellers shall provide the Buyer with a
true and correct copy of the voting information form with respect to the Shares
held by the Sellers indicating the financial institution through which such
shares are held and the control number provided by Broadridge Financial
Solutions regarding the voting of such Shares or written confirmation of such
information as would appear on the voting information form.
2.3 At
or before the Closing, Buyer shall deliver or cause to be delivered to the
Sellers payment by wire transfer of immediately available funds the Aggregate
Purchase Price in accordance with Section 1 of this Agreement.
2.4 In
the event payment of the Aggregate Purchase Price has not been received on July
2, 2009, then commencing on July 3, 2009 Buyer shall pay to the Sellers in
immediately available funds an amount equal to the lesser of (i) 3.0% of the
Aggregate Purchase Price per month (pro-rated on a daily basis based on the date
when payment is required and the date such payment is made) or (ii) the highest
lawful rate, for each Share held by the Sellers from the date such payment was
required to be made through the date such payment is actually made.
3. Representations and
Warranties of the Sellers.
3.1 Each
Seller hereby represents and warrants to Buyer on the date hereof and on the
date of the Closing that:
(a) Sophisticated
Seller. The Seller is sophisticated in financial matters and
is able to evaluate the risks and benefits attendant to the sale of Shares to
Buyer.
(b) Independent
Investigation. The Seller, in making the decision to sell the Shares to
Buyer, has not relied upon any oral or written representations or assurances
from Pantheon, Pantheon Arizona, or any of their officers, directors or
employees or any other representatives or agents of Buyer or Pantheon Arizona,
except as are contained in this Agreement. The Seller has had access
to and reviewed all of the filings made by Pantheon and Pantheon Arizona with
the United States Securities and Exchange Commission (the “SEC”), pursuant to
the Exchange Act and the Securities Act of 1933 (the “Securities Act”), in each
case to the extent available publicly accessible via the SEC’s Electronic Data
Gathering, Analysis and Retrieval system.
(c) Authority; No
Conflicts. This Agreement has been validly authorized, executed and
delivered by the Seller and, assuming the due authorization, execution and
delivery thereof by Buyer, is a valid and binding agreement enforceable in
accordance with its terms, subject to the general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors’ rights
generally. The execution, delivery and performance of this Agreement by the
Seller does not and will not conflict with, violate or cause a breach of,
constitute a default under, or result in a violation of (i) any agreement,
contract or instrument to which the Seller is a party which would prevent the
Seller from performing its obligations hereunder or (ii) any law, statute, rule
or regulation to which the Seller is subject.
3
(d) No Legal Advice from
Buyer. The Seller acknowledges that he has had the opportunity to review
this Agreement and the transactions contemplated by this Agreement with the
Seller’s own legal counsel and investment and tax advisors. The Seller is
relying solely on such counsel and advisors and not on any statements or
representations of Buyer or any of its representatives or agents for legal, tax
or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
4. Representations and
Warranties of Buyer.
4.1 Buyer
hereby represents to the Sellers that:
(a) Sophisticated
Buyer. The Buyer is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the sale of Shares by the
Sellers.
(b) Independent
Investigation. Buyer, in making the decision to purchase the Shares from
the Sellers, has not relied upon any oral or written representations or
assurances from the Sellers or any of their respective officers, directors,
partners or employees or any other representatives or agents of the Sellers,
except as are contained in this Agreement.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Buyer and,
assuming the due authorization, execution and delivery thereof by each Seller,
is a valid and binding agreement enforceable in accordance with its terms,
subject to the general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors’ rights generally. The execution,
delivery and performance of this Agreement by Buyer does not and will not
conflict with, violate or cause a breach of, constitute a default under, or
result in a violation of (i) any agreement, contract or instrument to which
Buyer is a party which would prevent Buyer from performing its obligations
hereunder or (ii) any law, statute, rule or regulation to which Buyer is
subject.
(d) Trust
Account. Buyer confirms that (i) at least $28,858,647 is held
in the Trust Account and (ii) it is not aware of any outstanding liabilities
that are not subject to an effective waiver of claims against the Trust Account,
except those liabilities listed as “unwaived” as set forth on the Schedule of
Liabilities attached to the Put and Call Agreement.
(e) Irrevocable Instructions to
Continental. Buyer has delivered the Irrevocable Instructions
attached as Annex 1 to Continental requiring that no funds be released from the
Trust Account unless all amounts due to the Sellers are paid prior to release to
Buyer or any other party and Continental has acknowledged and agreed to such
Irrevocable Instructions. Buyer agrees that it will not enter into an
agreement for a replacement of Continental as trustee in connection with the
Trust Account unless and until Buyer, such substitute trustee, and any other
required signatory shall first deliver to the Sellers fully executed Irrevocable
Instructions substantially in the form attached as Annex 1 hereto.
5. Put and Call
Agreement. Provided that the representations and warranties
made by Buyer in Section 4.1 hereof are true and correct on the date of the
stockholder meeting in connection with the approval of the Acquisition with the
same effect as though made on such date and Buyer has complied in all material
respects with its obligations set forth in this Agreement through such date,
each Seller agrees not to exercise its put option rights pursuant to the Put and
Call Agreement, and, provided that all of Buyer’s obligations hereunder are
performed in full, waives any and all claims against Modern, Buyer and Xxxx X.
Xxxx it may have now and in the future arising out of any obligations Modern has
under the Put and Call Agreement. Except as explicitly stated in the
foregoing, the terms and conditions of the Put and Call Agreement shall remain
in full force and effect.
4
6. Indemnification. Buyer
hereby agrees to indemnify and hold harmless each Seller and each of its
partners, principals, members, officers, directors, employees, agents,
representatives and affiliated or managed funds from and against any and all
losses, claims, damages, liabilities and expenses, joint or several, of any kind
or nature whatsoever, and any and all actions, inquiries, proceedings and
investigations in respect thereof, whether pending or threatened, to which any
such party may become subject, arising in any manner out of or in connection
with this Agreement or the transactions contemplated herein to the fullest
extent permitted under applicable law, regardless of whether any of such parties
is a party hereto, and immediately upon request reimburse such party for such
party’s reasonable legal and other expenses as they are incurred in connection
with investigating, preparing, defending, paying, settling or compromising any
such action, inquiry, proceeding or investigation (including, without
limitation, usual and customary per diem compensation for any such party’s
involvement in discovery proceedings or testimony); provided that Buyer shall
not be liable for any such loss, liability, claim, damage or expense resulting
from actions taken by such Seller in bad faith or as a result of its gross
negligence or willful misconduct.
7. Expenses. Buyer
shall pay not later than the Closing the legal fees and expenses of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Sellers, in the
amount of $5,000.
8. Termination.
Notwithstanding any provision in this Agreement to the contrary, this Agreement
shall become null and void and of no force and effect upon the earlier of (a)
the termination of the Transaction Agreements prior to the consummation of the
transactions contemplated thereby and (b) 11:59 p.m. eastern standard time on
June 30, 2009 if the Acquisition has not been consummated by such
date.
9. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. This
Agreement or any counterpart may be executed via facsimile transmission, and any
such executed facsimile copy shall be treated as an original.
10. Governing Law. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced in
the courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum and irrevocably waive trial by jury.
5
11. Remedies. Each
of the parties hereto acknowledges and agrees that, in the event of any breach
of any covenant or agreement contained in this Agreement by the other party,
money damages may be inadequate with respect to any such breach and the
non-breaching party may have no adequate remedy at law. It is
accordingly agreed that each of the parties hereto shall be entitled, in
addition to any other remedy to which they may be entitled at law or in equity,
to seek injunctive relief and/or to compel specific performance to prevent
breaches by the other party hereto of any covenant or agreement of such other
party contained in this Agreement.
12. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be
assigned by either party without the prior written consent of the other party
hereto.
13. Amendments. Neither
this Agreement nor any provision hereof may be changed or amended orally, but
only by an agreement in writing signed by the other party hereto.
[remainder of page left intentionally
blank; signature page follows]
6
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
|
By:
|
/s/ Xxxx X. Xxxx
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title: Chief
Executive Officer and President
|
|
|
VICTORY
PARK CREDIT OPPORTUNITIES
MASTER
FUND, LTD.
|
|
|
By: Victory
Park Capital Advisors, LLC, its
investment
manager
|
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxx
|
|
|
Title:
General Counsel
|
|
|
VICTORY
PARK SPECIAL SITUATIONS
MASTER
FUND, LTD.
|
|
|
By: Victory
Park Capital Advisors, LLC, its
investment
manager
|
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxx
|
|
|
Title:
General Counsel
|
|
|
Address
(both):
|
|
|
000
Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
Purchase
Price Per Share: $5.99
Number of
Shares: 2,273,700
Aggregate
Purchase Price: $13,619463.00
7
ANNEX 1
IRREVOCABLE INSTRUCTIONS –
FUNDS RELEASE
TO: Continental
Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Re: Trust
Account No.: A/C # 530-064812
Gentlemen:
Pantheon
China Acquisition Corp. (the “Company”) is providing these irrevocable
instructions to you in connection with the above-described Trust Account
established in connection with and pursuant to an Investment Management Trust
Agreement dated as of December 14, 2006 between the Company and Continental
Stock Transfer & Trust Company as Trustee (the “Trust Agreement”).
Capitalized terms used herein shall have the meanings ascribed thereto in the
Trust Agreement.
In the
event the Company delivers to you a Termination Letter substantially in the form
of Exhibit A to the Trust Agreement, in addition to the other documents required
to be delivered pursuant to Exhibit A to the Trust Agreement, then on the date
the Company liquidates its trust account, you are irrevocably instructed by the
Company to deliver from the Trust Account an amount equal to an aggregate of
$27,238,920.01 (the “Aggregate Amount”) in consideration for the delivery
(through the DWAC System to the Company’s account) of an aggregate of 4,547,399
shares of the Company’s common stock beneficially owned by Victory Park Credit
Opportunities Master Fund, Ltd., Victory Park Special Situations Master Fund,
Ltd. and YA Global Investments, L.P. (collectively, the “Investors”) which shall
be distributed to such Investors in the amounts indicated on Schedule A hereto
prior to the release of any funds from the Trust Account to the Company or any
other third party. Such amounts shall be delivered to the Investors in
accordance with the bank wire instructions delivered to you by each of the
Investors. To the extent there is less than the Aggregate Amount
remaining in the Trust Account upon distribution to the Investors, then such
lesser amount shall be allocated to the Investors pari passu.
The funds
distribution described above is for the benefit of the Investors, who are made
third party beneficiaries of these irrevocable instructions with rights of
enforcement.
Kindly
acknowledge where indicated below, your receipt and understanding of these
instructions and return a copy to Loeb & Loeb LLP, Attention Xxxxxxxx
Xxxxxx, Phone: 000 000-0000 and Fax: 000 000-0000 and Xxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxx and Xxxxx, PC, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxxx X. Xxxxxxx, Esq., Fax Number: (000) 000-0000; Phone Number: (000)
000-0000.
8
A
facsimile signed and electronically delivered copy of this letter shall be
deemed an original.
|
Very
truly yours,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Acknowledged
and Agreed:
CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
9
SCHEDULE
A
|
Victory
Park Credit Opportunities Master Fund, Ltd.
|
$ | 11,031,184.00 | ||
|
Victory
Park Special Situations Master Fund, Ltd.
|
$ | 2,588,279.00 | ||
|
YA
Global Investments, L.P.
|
$ | 13,619,457.01 | ||
|
TOTAL
|
$ | 27,238,920.01 |
10
