STOCK PURCHASE AGREEMENT
EXHIBIT
10.14
This
STOCK PURCHASE AGREEMENT (this “Agreement”), is made
and entered into as of March 1, 2010 (the “Effective Date”), by
and between China Yongxin Pharmaceuticals Inc. (“Seller”) and PmMaster
Beijing Software Co., Ltd (“Purchaser”).
RECITALS
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A.
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Seller
is the record and beneficial owner
of:
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(i)
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all
of the shares of capital stock of Digital Learning Institute Inc., a
Delaware corporation (the “DLI
Shares”);
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(ii)
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all
of the shares of capital stock of Software Education of America, Inc., a
California corporation (the “SEA
Shares”);
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(iii)
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all
of the shares of capital stock of XxXxxxxx Educational Services, Inc., a
California corporation (the “MES
Shares”);
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(iv)
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all
of the shares of capital stock of Digital Knowledge Works, Inc., a
Delaware corporation (the “DKW Shares”);
and
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(v)
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all
of the shares of capital stock of Coursemate, Inc., a California
corporation (the “Coursemate
Shares”).
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B. In
consideration of the covenants and agreements set forth herein, Seller desires
to sell the Shares (as defined below) to Purchaser and Purchaser desires to
purchase the Shares from Seller on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE
1
DEFINITIONS
Section
1.1 Certain
Definitions. As used herein, the following terms shall have
the following meanings:
(a) “Shares” means,
collectively, the DLI Shares, the SEA Shares, the MES Shares, the DKW Shares and
the Coursemate Shares.
(b) “Subsidiaries” means,
collectively, Digital Learning Institute Inc., a Delaware corporation; Software
Education of America, Inc., a California corporation; XxXxxxxx Educational
Services, Inc., a California corporation; Digital Knowledge Works, Inc., a
Delaware corporation; and Coursemate, Inc., a California
corporation.
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ARTICLE
2
SALE AND
PURCHASE OF THE SHARES
Section
2.1 Sale of the
Shares. Subject to the terms and conditions of this Agreement,
and in consideration of the covenants and agreements set forth herein (including
the waiver set forth in Article 3 hereof), on the Effective Date, Purchaser
shall purchase from Seller, and Seller shall sell, transfer and deliver to
Purchaser, the Shares, free and clear of all options, pledges, security
interests, voting trusts or similar arrangements, liens, charges or other
encumbrances or restrictions of any kind whatsoever (collectively, “Encumbrances”).
Section
2.2 Purchase
Price. In consideration for the Shares, on the Effective Date,
Purchaser shall pay by wire transfer to Seller the sum of $20,000.
Section
2.3 Delivery. On
the Effective Date, Seller shall surrender to Purchaser the stock certificates
evidencing the Shares (or execute and deliver to Purchaser an affidavit stating
to the effect that Seller never received such stock certificates), together with
any stock powers and such other good and sufficient instruments of conveyance
and assignment, satisfactory in form and substance to Purchaser, as shall be
necessary to warrant and vest in Purchaser good and marketable right, title and
interest in and to the Shares. Promptly after the execution of this
Agreement, the parties shall also deliver an executed copy of this Agreement to
each of the Subsidiaries so that each such Subsidiary may reflect the change in
ownership of the applicable Shares on its stock ledger and related
records.
ARTICLE
3
WAIVER OF
CLAIMS
Section
3.1. Release by Purchaser and the
Subsidiaries. Purchaser, for itself and its successors and
assigns (collectively, the “Releasing Parties”)
hereby absolutely, forever and fully, generally and specifically,
unconditionally and irrevocably releases, acquits, and forever discharges
Seller, its affiliates, agents, representatives, attorneys, accountants, heirs,
predecessors, successors and assigns (collectively the “Released Parties”),
of and from any and all claims, actions, causes of action, demands, rights,
damages, costs, expenses and compensation of every kind, including, but not
limited to, attorneys’ fees and costs of any kind or nature (collectively, the
“Claims”),
known or unknown, which the Releasing Parties, or any of them, heretofore had,
owned, held or claimed to have, own or hold against any of the Released Parties,
or at any time now or in the future have own, hold or claim to have, own or hold
against any of the Released Parties which relate to or arise out of Seller’s
prior relationship with the Subsidiaries (including Seller’s rights or status as
a stockholder of the Subsidiaries); provided, however, that this
Agreement does not discharge any representations and warranties, covenants or
obligations of the parties under or contained in this Agreement.
Section
3.2. Section
1542. Purchaser acknowledges that in the event that at any
time after the execution of this Agreement by the parties any injury, loss or
damage is sustained in connection with any matter released in Section 3.1 or any
matter set forth elsewhere in this Agreement which is not now known or
suspected, or in the event that the loss or damage now known has consequences or
results not known or suspected, this Agreement shall nevertheless constitute a
full and final release as to the parties and matters herein released, and this
release shall apply to and include all such unknown or unsuspected consequences
or results. Each of the parties has read and has been carefully
advised by their attorneys of the contents of Section 1542 of the California
Civil Code which reads as follows:
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“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
Purchaser
hereby expressly, unconditionally and irrevocably waives any and all rights and
benefits under Section 1542.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Purchaser that:
Section
4.1 Authorization; Due Execution
and Delivery; Binding Obligation. Seller has the requisite
power and authority to execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by
Seller and constitutes a legal, valid and binding agreement and obligation of
Seller, enforceable against Seller in accordance with its terms.
Section
4.2 Title to the
Shares. Seller owns the Shares beneficially and of record,
free and clear of any and all Encumbrances or other rights of third parties of
any kind or nature. Except for this Agreement, (i) there is no
outstanding option, warrant, call, right or other agreement or commitment
obligating Seller to sell, deliver or transfer any of the Shares to any other
person or entity, (ii) no person other than Seller has any ownership interest or
claim in or to the Shares of any kind and (iii) no person other than Seller has
any ownership interest in, or right to acquire any ownership interest in, any of
the Subsidiaries.
Section
4.3 No
Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
conflict with or constitute a default under any contract, agreement or
instrument to which Seller or any of the Subsidiaries is a party or (ii) violate
any statute or law or any judgment, decree, order, regulation or rule of any
court or governmental authority.
Section
4.4 Acknowledgments of
Seller. Seller understands, acknowledges and agrees that: (i)
the decision to sell the Shares to Purchaser has been made by Seller in its sole
discretion with the advice of Seller’s professional advisors; (ii) Seller,
either alone or with the assistance of its professional advisors, has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of the sale and purchase contemplated by this
Agreement; (iii) the consideration as set forth herein may be less than
would be obtained by Seller under other circumstances, including, without
limitation, if the Subsidiaries (or any number of the Subsidiaries) were sold to
a third party or if Seller was to retain the Shares and sell the Shares at some
time in the future; (iv) Seller has completely and carefully read this
Agreement and understands its terms and consequences and has had the opportunity
to consult with its own counsel, accountant and/or other professional advisors
and to obtain advice from any other person or expert that Seller deems relevant;
and (v) Seller’s decision to sell the Shares is fully and completely
informed.
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ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to Seller that:
Section
5.1 Authorization; Due Execution
and Delivery; Binding Obligations. Purchaser has the requisite
power and authority to execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to perform Purchaser’s obligations
hereunder. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid and binding agreement and obligation
of Purchaser enforceable against Purchaser in accordance with its
terms.
Section
5.2 No
Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
conflict with or constitute a default under any contract, agreement or
instrument to which Purchaser is a party or (ii) violate any statute or law or
any judgment, decree, order, regulation or rule of any court or governmental
authority.
Section
5.3 Knowledge of the
Business. Purchaser has sufficient knowledge of the business
of each of the Subsidiaries, and has access to all relevant available
information of each of the Subsidiaries, so as to have the capacity to evaluate
the relative merits and risks of purchasing the Shares.
Section
5.4 Sophisticated
Investor. Purchaser, either alone or with the assistance of
Purchaser’s professional advisors, has such knowledge and experience in
financial and business matters that Purchaser is capable of evaluating the
merits and risks of an investment in the Shares and has the net worth to
undertake such risks.
Section
5.5 Investment
Intent. Purchaser is purchasing the Shares for Purchaser’s own
account for investment purposes and not for the account of any other person or
entity and not with a view to or for sale in connection with any distribution of
all or any part of the Shares.
Section
5.6 No Public
Market. Purchaser acknowledges and understands that the Shares
have not been registered under the Securities Act of 1933, as amended (the
“Act”), or
qualified under any applicable state securities laws or regulations, that the
Shares are being offered in reliance upon exemptions from the registration
requirements of the Act and such laws and regulations and that, as such, the
Shares may not be resold without registration under the Act and applicable state
securities laws or an applicable exemption thereto.
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ARTICLE
6
MISCELLANEOUS
Section
6.1 Reasonable
Efforts. Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties agrees to use its commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this
Agreement.
Section
6.2 Expenses. Each
party hereto will bear its own expenses in connection with the negotiation and
execution of this Agreement and the performance of the transactions contemplated
hereby.
Section
6.3 Survival of
Agreements. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the purchase, sale and delivery of the Shares.
Section
6.4 Parties in
Interest. All representations, covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
Section
6.5 Notices. All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by fax, to the address or addresses set
forth on the signature page hereto, or at such other address or addresses as
shall have been furnished in writing by such party to the others in accordance
with this Section 6.5.
Section
6.6 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
Section
6.7 Entire
Agreement. This Agreement constitutes the sole and entire
agreement of the parties with respect to the subject matter hereof.
Section
6.8 Counterparts; Facsimile
Signatures. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of a
signed counterpart of this Agreement by facsimile transmission constitutes good
and valid execution and delivery of this Agreement.
Section
6.9 Amendments. This
Agreement may not be amended or modified, and no provisions hereof may be
waived, without the written consent of Seller and Purchaser.
Section
6.10 Severability. If
any provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the validity of any other provision and of
the entire Agreement shall not be affected thereby.
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blank]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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PURCHASER:
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SELLER:
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PmMaster
Beijing Software Co., Ltd
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Address
for purposes of notice:
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Address
for purposes of notice:
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Facsimile
No.: _____________________________
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Facsimile
No.:
_____________________________
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