STOCK PURCHASE AGREEMENT
Exhibit 10.1
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of December 30, 2009
by and among Apextalk Holdings, Inc., a Delaware corporation (the “Company”),
and the purchasers named on Exhibit A hereto (Collectively, the “Purchasers” and
individually, the “Purchaser”).
The
parties hereto agree as follows:
1. Purchase of Common Stock
The
Purchaser intends to be legally bound, hereby irrevocably agrees to purchase
from the Company 1,666,668 shares common stock (the “Common Shares”) at a
purchase price of $2.40 per share upon the terms and conditions set forth
hereinafter. The total amount of the purchase will be $4,000,000 payable to
Apextalk Holdings by separate payments within 90 days. The Company will issue
new shares for this transaction.
The
Purchaser is delivering the payment (the “Purchase Price”) by a check made
payable to “Apextalk Holdings” with two fully executed copies of this Agreement
and a completed Investor Questionnaire (the “Investor
Questionnaire”):
Apextalk
Holdings, Inc.
000
Xxxxxx Xxxxxx,
Xxx
Xxxxxxxxx, Xxxxxxxxxx, 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
The
Purchaser understands that the Common Shares are being issued pursuant to the
exemption from the registration requirements of the United States Securities Act
of 1933, as amended (the “Securities Act”), provided by Regulation D Rule 506,
or Regulation S of such Securities Act. As such, the Common Shares are only
being offered and sold to investors who qualify as “accredited investors” as
defined by Rule 501 of Regulation D of the Securities Act, and a limited number
of sophisticated investors, and persons who are not “US persons” as defined in
Regulation S under the Securities Act. The Corporation is relying on
the representations made by the Purchaser in this Agreement that the Purchaser
qualifies as such an accredited, sophisticated, or non “US person” investor, and
the Purchaser is capable of evaluating the merits and risks of his investment in
the offering and has ability and capacity to protect his
interests. The Common Shares are “restricted securities” for purposes
of the United States securities laws and cannot be transferred except as
permitted under these laws.
2. Representations
and Warranties.
2.1. The
Corporation represents and warrants to, and agrees with the Purchaser as
follows, in each case as of the date hereof:
(a) The
Corporation will be duly organized, validly existing and in good standing under
the laws of Delaware with full power and authority to own, lease, license and
use its properties and assets and to carry out the business as it currently
engages. The Corporation will be in good standing as a foreign corporation in
every jurisdiction in which its ownership, leasing, licensing or use of property
or assets or the conduct of its business makes such qualification necessary,
except where the failure to be so qualified would not have a material adverse
effect on the Corporation.
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(b) At
the date of hereof, the Company has 459,706 shares of issued and outstanding
Common Stock, par value $0.001, and zero shares of issued and outstanding
preferred stock.
Each
outstanding share of the Common Stock will be validly authorized, validly
issued, fully paid and non-assessable, without any personal liability attaching
to the ownership thereof and has not been issued and is not or will not be owned
or held in violation of any preemptive rights of stockholders. There will be no
commitment, plan or arrangement to issue, and no outstanding option, warrant or
other right calling for the issuance of, any share of capital stock of the
Corporation or any security or other instrument which by its terms is
convertible into, exercisable for or exchangeable for capital stock of the
Corporation, except as set forth in Schedule 2.1(b).
There will be no outstanding security or other instrument which by its terms is
convertible into or exchangeable for capital stock of the Corporation, except as
set forth in Schedule
2.1(b).
(c) There
will be no litigation, arbitration, claim, governmental or other proceeding
(formal or informal), or investigation pending or, to the best knowledge of the
officers of the Corporation, threatened with respect to the Corporation, or any
of its subsidiaries, operations, businesses, properties or assets except as set
forth in Schedule
2.1(c) or such as individually or in the aggregate do not now have and
could not reasonably be expected have a material adverse effect upon the
operations, business, properties or assets of the Corporation.
(d) The
Corporation will not be in violation of, or in default with respect to, any law,
rule, regulation, order, judgment or decree except as may be set forth in Schedule 2.1(d) or
such as in the aggregate do not now have and will not in the future have a
material adverse effect upon the operations, business, properties or assets of
the Corporation; nor will the Corporation be required to take any action in
order to avoid any such violation or default.
(e) The
Corporation will have all requisite power and authority to execute, deliver and
perform its obligations under this Agreement, and (ii) to issue and sell the
shares.
(f) No
consent, authorization, approval, order, license, certificate or permit of or
from, or declaration or filing with, any United States federal, state, local, or
other applicable governmental authority, or any court or any other tribunal, is
required by the Corporation for the execution, delivery or performance by the
Corporation of this Agreement or the issuance and sale of the shares, except
such filings and consents as may be required and have been or at the initial
closing will have been made or obtained under the laws of the United States
federal and state securities laws.
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(g) The
execution, delivery and performance of this Agreement and the issuance of the
Common Shares will not violate or result in a breach of, or entitle any party
(with or without the giving of notice or the passage of time or both) to
terminate or call a default under any agreement or violate or result in a breach
of any term of the Corporation's Articles of Incorporation or Bylaws of, or
violate any law, rule, regulation, order, judgment or decree binding upon, the
Corporation, or to which any of its operations, businesses, properties or assets
are subject, the breach, termination or violation of which, or default under
which, would have a material adverse effect on the operations, business,
properties or assets of the Corporation.
(h) The
Common Shares will be validly authorized and, if and when issued in accordance
with the terms and conditions set forth in this Agreement, will be validly
issued, fully paid and non-assessable without any personal liability attaching
to the ownership thereof, and will not be issued in violation of any preemptive
or other rights of stockholders.
(i)This
Agreement does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
2.2. The
Purchaser hereby represents and warrants to, and agrees with, the Corporation as
follows:
(a) The
Purchaser is an “Accredited Investor” as that term is defined in Rule 501 (a) of
Regulation D promulgated under the Securities Act, and as specifically indicated
in Exhibit I
attached to this Agreement.
(b) The
Purchaser is a “Sophisticated Investor” as that term is defined in Rule
506(b)(2)(ii) of Regulation D promulgated under the Securities Act.
(c) The
Purchaser is a resident of the jurisdiction set forth immediately below his name
on the signature pages hereto.
(d) The
Purchaser is familiar with the Corporation's business, plans and financial
condition, the terms of the offering and any other matters relating to the
offering, the Purchaser has received all materials which have been requested by
the undersigned, has had a reasonable opportunity to ask questions of the
Corporation and its representatives, and the Corporation has answered all
inquiries that the Purchaser or the Purchaser representatives have put to it.
The Purchaser has had access to all additional information necessary to verify
the accuracy of the information set forth herein and any other materials
furnished herewith, and have taken all the steps necessary to evaluate the
merits and risks of an investment as proposed hereunder.
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(h) The
Purchaser or the undersigned's purchaser representative) has such knowledge and
experience in finance, securities, taxation, investments and other business
matters so as to be able to protect the interests of the Purchaser in connection
with this transaction, and the undersigned's investment in the Corporation
hereunder is not material when compared to the undersigned's total financial
capacity.
(i) The
Purchaser understands the various risks of an investment in the Corporation as
proposed herein and can afford to bear such risks, including, without
limitation, the risks of losing the entire investment.
(j) The
Purchaser acknowledges that a limited market for the Common Shares presently
exists and none may develop in the future and that the Purchaser may find it
impossible to liquidate the investment at a time when it may be desirable to do
so, or at any other time.
(k) The
Purchaser has been advised by the Corporation that none of the Common Shares has
been registered under the Securities Act, that the Common Stock will be issued
on the basis of the statutory exemption provided by Regulation D or Regulation S
promulgated under the Securities Act, or both, relating to transactions by an
issuer not involving any public offering and under similar exemptions under
certain state securities laws; that this transaction has not been reviewed by,
passed on or submitted to any federal or state agency or self-regulatory
organization where an exemption is being relied upon; and that the Corporation's
reliance thereon is based in part upon the representations made by the Purchaser
in this Agreement.
(l) The
Purchaser acknowledges that the Purchaser has been informed by the Corporation
of or is otherwise familiar with, the nature of the limitations imposed by the
Securities Act and the rules and regulations thereunder on the transfer of the
securities. In particular, the Purchaser agrees that no sale, assignment or
transfer of any of the securities shall be valid or effective, and the
Corporation shall not be required to give any effect to such a sale, assignment
or transfer, unless (i) the sale, assignment or transfer of such securities is
registered under the Securities Act, it being understood that the securities are
not currently registered for sale and that the Corporation has no obligation or
intention to so register the securities, except as contemplated by the terms of
this Agreement or (ii) such securities are sold, assigned or transferred in
accordance with all the requirements and limitations of Rule 144 under the
Securities Act (it being understood that Rule 144 is not available at the
present time for the sale of the securities), or (iii) such sale, assignment or
transfer is otherwise exempt from registration under the Securities Act,
including Regulation S promulgated thereunder. The Purchaser further understands
that an opinion of counsel and other documents may be required to transfer the
securities.
(m) The
Purchaser acknowledges that the securities shall be subject to a stop transfer
order and the certificate or certificates evidencing any Common Shares shall
bear the following or a substantially similar legend or such other legend as may
appear on the forms of securities and such other legends as may be required by
state blue sky laws:
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES OR “BLUE SKY” LAWS OF ANY STATE OF THE
UNITED STATES. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
ASSIGNED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS REOFFERED, SOLD,
TRANSFERRED, PLEDGED, ASSIGNED OR OTHERWISE
DISPOSED OF PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
(n) The
Purchaser will acquire the Common Shares for the Purchaser's own account (or for
the joint account of the Purchaser and the Purchaser's spouse either in joint
tenancy, tenancy by the entirety or tenancy in common) for investment and not
with a view to the sale or distribution thereof or the granting of any
participation therein, and has no present intention of distributing or selling
to others any of such interest or granting any participation
therein.
(o) No
representation, guarantee or warranty has been made to the Purchaser by any
broker, the Corporation, any of the officers, directors, stockholders, partners,
employees or agents of either of them, or any other persons, whether expressly
or by implication, that:
(i) the
Corporation or the Purchaser will realize any given percentage of profits and/or
amount or type of consideration, profit or loss as a result of the Corporation's
activities or the Purchaser's investment in the Corporation; or
(ii) the
past performance or experience of the management of the Corporation, or of any
other person, will in any way indicate the predictable results of the ownership
of the Securities or of the Corporation's activities.
(p) The
Purchaser acknowledges that the representations, warranties and agreements made
by the Purchaser herein shall survive the execution and delivery of this
Agreement and the purchase of the Common Shares
2.3 Additional Representations
and Warranties of Non-United States Persons.
(a) At
the time the Purchaser was offered the Common Shares, it was not, and at the
date hereof, is not a “U.S. Person”
which is defined below:
(A) Any
natural person resident in the United States;
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(B)
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Any
partnership or corporation organized or incorporated under the laws of the
United States;
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(C)
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Any
estate of which any executor or administrator is a U.S.
person;
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(D) Any
trust of which any trustee is a U.S. person;
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(E)
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Any
agency or branch of a foreign entity located in the United
States;
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(F)
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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;
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(G)
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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 of the United States;
and
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(H)
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Any
partnership or corporation if (i) organized or incorporated under the laws
of any foreign jurisdiction and (ii) 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) of Regulation D
promulgated under the Securities Act) who are not natural persons, estates
or trusts.
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“United States” or “U.S.” means the United States
of America, its territories and possessions, any State of the United States, and
the District of Columbia.
(b) The
Purchaser understands that no action has been or will be taken in any
jurisdiction by the Corporation that would permit a public offering of the
Common Shares in any country or jurisdiction where action for that purpose is
required.
(c) The
Purchaser (i) as of the execution date of this Agreement is not located within
the United States, and (ii) is not purchasing the Common Shares for the account
or benefit of any U.S. person except in accordance with one or more available
exemptions from the registration requirements of the Securities Act or in a
transaction not subject thereto.
(d) The
Purchaser will not resell the Common Shares except in accordance with the
provisions of Regulation S (Rule 901 through 905 and Preliminary Notes thereto),
pursuant to a registration under the Securities Act, or pursuant to an available
exemption from registration; and agrees not to engage in hedging transactions
with regard to such securities unless in compliance with the Securities
Act.
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(e) The
Purchaser will not engage in hedging transactions with regard to shares of the
Corporation prior to the expiration of the distribution compliance period
specified in Category 2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903 of
Regulation S, as applicable, unless in compliance with the Securities Act; and
as applicable, shall include statements to the effect that the securities have
not been registered under the Securities Act and may not be offered or sold in
the United States or to U.S. persons (other than distributors) unless the
securities are registered under the Securities Act, or an exemption from the
registration requirements of the Securities Act is available.
(f) No
form of “directed selling efforts” (as defined in Rule 902 of Regulation S under
the Securities Act), general solicitation or general advertising in violation of
the Securities Act has been or will be used nor will any offers by means of any
directed selling efforts in the United States be made by the Purchaser or any of
their representatives in connection with the offer and sale of the Common
Shares.
3.
Covenants of the Corporation and Purchaser.
(a) The
Corporation and the Purchaser are liable for, and shall pay, their own expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement, including, without limitation, attorneys’ and consultants’
fees and expenses.
(b) As long
as the Purchaser owns any of the Common Shares, the Corporation will conduct its
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business (including, without limitation,
all applicable local, state and federal environmental laws and regulations),
except for those laws, rules and regulations the failure to comply with which
would not have a material adverse effect.
4.
Indemnification. The Purchaser understands the meaning and legal consequences of
the representations and warranties contained in Section 2.2, and agrees to
indemnify and hold harmless the Corporation and each member, officer, employee,
agent or representative thereof against any and all loss, damage or liability
due to or arising out of a breach of any representation or warranty, or breach
or failure to comply with any covenant, of the Purchaser, whether contained in
this Agreement. Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the Purchaser, the Purchaser does
not thereby or in any other manner waive any rights granted to the Purchaser
under federal or state securities laws.
5.
Additional Information. The Purchaser hereby acknowledges and agrees
that the Corporation may make or cause to be made such further inquiry and
obtain such additional information as they may deem appropriate, with regard to
the suitability of the Purchaser.
6.
Modification.
Neither this Agreement nor any provisions hereof shall be waived, modified,
discharged or terminated or by an instrument in writing signed by the party
against whom any such waiver, modification, discharge or termination is
sought.
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7.
Notices. Any
notice, demand or other communication that any party hereto may be required, or
may elect, to give to anyone interested hereunder shall be deemed given (a)
three (3) business days after mailing if sent by registered or certified mail,
return receipt requested, addressed to such address as may be given herein, (b)
immediately if delivered personally at such address, including by overnight
delivery service, or (c) immediately if communicated by facsimile to the person
entitled to such notice, provided, however, that
acknowledgment of the receipt of such facsimile notice is returned to the person
giving notice, it being understood that such acknowledgment shall not be
unreasonably withheld. The addresses for such communications shall
be:
(a) If to the
Purchaser: Champion
Investors (China) LTD
0 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx,
XX 00000
Tel:
(000) 000 0000
(b) If to the
Company: Apextalk
Holdings, Inc.
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Tel: (000)000-0000
with a copy (which does not constitute
a notice) to:
Xxxxxx
& Jaclin, LLP
Attn.:
Xxxxxxxx Xxxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Tel.:
000-0000000
8.
Counterparts.
This Agreement may be executed through the use of separate signature pages or in
any number of counterparts, and each such counterpart shall, for all purposes,
constitute one agreement binding on all parties, notwithstanding that all
parties are not signatories to the same counterpart.
9.
Entire
Agreement. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and there are no representations, covenants
or other agreements except as stated or referred to herein.
10.
Severability.
Each provision of this Agreement is intended to be severable from every other
provision, and the invalidity or illegality of any Portion hereof shall not
affect the validity or legality of the remainder hereof.
11.
Assignability.
This Agreement is not transferable or assignable by the Purchaser.
12.
Applicable
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California as applied to residents of that State executing
contracts wholly to be performed in that State without regard to conflicts of
laws principles.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officer as of the date first above written.
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APEXTALK
HOLDING, INC.
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By:
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Xxx
Xxx
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Name:
Xxx Xxx
Title:
Chief Executive Officer
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By:
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CHAMPION
INVESTORS (CHINA) LTD
Yi
Xxx Xxxx
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| Name: Yi Xxx Xxxx | ||
| Title: Chief Executive Officer | ||
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