STOCK PURCHASE AGREEMENT
Exhibit
10.21
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:
“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.
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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.
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.
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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.
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.
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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/s/ Gang Qiu
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By:
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/s/ Xxxxxxx Xxx
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Name:
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Gang Qiu
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Name:
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Xxxxxxx Xxx
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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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Xxx Xxxx Building of Changchun
City
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No 2152, Xxx Xxxx Rd., Xxx Xxxx
Qu
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Changchun City
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Facsimile
No.: 85362517
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Facsimile
No.: 85331718
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5
Acknowledgment and Amendment
Letter
THIS ACKNOWLEDGMENT AND AMENDMENT
LETTER (this “Letter”), is dated as
of May 15, 2010, by and between China Yongxin Pharmaceuticals Inc., a Delaware
corporation (the “Seller”) and PmMaster
Beijing Software Co., Ltd (the “Purchaser”)
(collectively, the “Parties”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
them in the Stock Purchase Agreement by and between the Seller and Purchaser on
March 1, 2010 (the “Agreement”). Subject
to the modifications and amendments provided herein, all other terms under
the Agreement shall remain in full force and effect.
RECITALS
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A.
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On
March 1, 2010, Purchaser purchased from Seller and Seller sold,
transferred and delivered to Purchaser, all of the equity interests in the
Subsidiaries (as defined in the Agreement) for a total consideration of
$20,000 (“Purchase
Price”).
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B.
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For
the sake of clarity, the Parties wish to amend Section 2.2 of the
Agreement to clarify that the Purchase Price is paid by the Purchaser in
exchange of all of the assets and liabilities of the
Subsidiaries.
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NOW, THEREFORE, the Parties
hereby acknowledge and agree that Section 2.2 of the Agreement shall be amended
and replaced in its entirety as follows:
“Section
2.2 Purchase Price. For the consideration of $20,000 (“Purchase Price”), the
Purchaser shall purchase all of the assets and assume all of the liabilities of
the Subsidiaries.”
IN WITNESS WHEREOF, the
undersigned Parties have executed this Letter as of the date first written
above.
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PURCHASER:
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SELLER: | ||
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PmMaster
Bejing Software Co., Ltd
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/s/ Gang Qiu
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/s/ Xxxxxxx Xxx
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Name:
Gang Qiu
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Name:
Xxxxxxx Xxx
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Title:
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Title:
Chief Executive
Officer
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Amendment to the
Acknowledgment and Amendment Letter
and the Original
Agreement
THIS AMENDMENT (the “Amendment”) TO THE ACKNOWLEDGMENT AND AMENDMENT
LETTER AND THE ORIGINAL AGREEMENT (both as defined below), is dated as of
May 19, 2010, by and between China Yongxin Pharmaceuticals Inc., a Delaware
corporation (the “Seller”) and PmMaster
Beijing Software Co., Ltd (the “Purchaser”)
(collectively, the “Parties”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
them in the Stock Purchase Agreement by and between the Seller and Purchaser on
March 1, 2010 (the “Original Agreement”) and/or in
the Acknowledgment and Amendment Letter (as defined below). Subject
to the modifications and amendments provided herein, all other terms of
the Original Agreement shall remain in full force and effect.
RECITALS
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A.
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On
March 1, 2010, pursuant to the Original Agreement, Purchaser purchased
from Seller and Seller sold, transferred and delivered to Purchaser, all
of the equity interests in the Subsidiaries (as defined in the Agreement)
for a total consideration of $20,000 (“Purchase
Price”).
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B.
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On
May 15, 2010, the Parties entered into an Acknowledgment and Amendment
Letter (the “Acknowledgment and
Amendment Letter”) to amend Section 2.2 of the Original Agreement
to clarify that the Purchase Price was paid by the Purchaser to purchase
the Subsidiaries, including all of the assets and liabilities of the
Subsidiaries.
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C.
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For
the sake of further clarity, the Parties wish to execute this Amendment to
further amend the Original Agreement, as amended by the Acknowledgment and
Amendment Letter, to specify that in exchange for the Purchase Price,
Purchaser is: (1) purchasing the Shares, (2) purchasing all of the assets
of the Subsidiaries, and (3) assuming all of the liabilities of the
Subsidiaries.
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NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in this
Amendment, the parties, intending to be legally bound, hereby agree as
follows:
1. The
Parties hereby acknowledge and agree that Section B. of the Recitals in the
Original Agreement shall be amended and replaced in its entirety as
follows:
“B. In
consideration of the covenants and agreements set forth herein, Seller desires
to sell the Shares and the Subsidiaries’ Assets and Liabilities (as both terms
are defined below) to Purchaser and Purchaser desires to purchase the Shares and
the Subsidiaries’ Assets and Liabilities from Seller on the terms and conditions
set forth in this Agreement (this transaction is hereinafter referred to as the
“Sale”).”
2. The
Parties hereby further acknowledge and agree that Section 2.1 of the Original
Agreement, and Section 2.2 of the Original Agreement, as amended in the
Acknowledgment and Amendment Letter, shall each be amended and replaced in their
entirety as follows:
“Section
2.1 Sale of
Subsidiaries. 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 and assume from Seller, and Seller shall sell,
transfer, assign and deliver to Purchaser: (a) all of the assets of the
Subsidiaries, including the Digital Learning Institute software platform, and
(b) all of the liabilities of the Subsidiaries in the approximate amount of $1.9
million (collectively, the “Subsidiaries’ Assets and
Liabilities”). In connection with the Sale, Seller shall sell,
transfer and deliver and Purchaser shall purchase and acquire 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 Subsidiaries’ Assets and
Liabilities and the Shares, Purchaser shall pay by wire transfer to Seller the
sum of $20,000.”
IN WITNESS WHEREOF, the
undersigned Parties have executed this Amendment 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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/s/ Gang Qiu
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/s/ Xxxxxxx Xxx
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Name:
Gang Qiu
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Name:
Xxxxxxx Xxx
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Title:
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Title:
Chief Executive
Officer
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8
Amendment No. 2 to the
Acknowledgment and Amendment Letter
and the Original
Agreement
THIS AMENDMENT NO. 2 (the
“Amendment No.
2”) TO THE AMENDMENT NO.
1, ACKNOWLEDGMENT AND AMENDMENT LETTER AND THE ORIGINAL AGREEMENT (as
defined below), is dated as of July 23, 2010, by and between China Yongxin
Pharmaceuticals Inc., a Delaware corporation (the “Seller”) and PmMaster
Beijing Software Co., Ltd (the “Purchaser”)
(collectively, the “Parties”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
them in the Stock Purchase Agreement by and between the Seller and Purchaser on
March 1, 2010 (the “Original Agreement”) and/or in
the Acknowledgment and Amendment Letter and Amendment No.1 (as defined
below). Subject to the modifications and amendments provided
herein, all other terms of the Original Agreement shall remain in full
force and effect.
RECITALS
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A.
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On
March 1, 2010, pursuant to the Original Agreement, Purchaser purchased
from Seller and Seller sold, transferred and delivered to Purchaser, all
of the equity interests in the Subsidiaries (as defined in the Original
Agreement) for a total consideration of $20,000 (“Purchase
Price”).
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B.
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On
May 15, 2010, the Parties entered into an Acknowledgment and Amendment
Letter (the “Acknowledgment and
Amendment Letter”) to amend Section 2.2 of the Original Agreement
to clarify that the Purchase Price was paid by the Purchaser to purchase
the Subsidiaries, including all of the assets and liabilities of the
Subsidiaries.
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C.
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On
May 19, 2010, the Parties entered into an Amendment to the Acknowledgment
and Amendment Letter and Original Agreement (“Amendment No.
1”), to further clarify that in exchange for the Purchase Price,
Purchaser is: (1) purchasing the Shares, (2) purchasing all of the assets
of the Subsidiaries, and (3) assuming all of the liabilities of the
Subsidiaries.
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D.
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After
the execution of the Amendment No. 1, the Seller determined that one of
the subsidiaries, Global Computer Systems, Inc. (“Global”), which
was one of the Subsidiaries (as defined in the Original Agreement) that
the Parties understood would be included in Purchaser’s purchase of the
Subsidiaries, was inadvertently left out of the list of Seller’s companies
that were to included under the definition of “Subsidiaries” in Section
1.1(b) of the Original Agreement;
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E.
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By
executing this Amendment No. 2, the Parties intend to revise the
above-described discrepancy in the definition of “Subsidiaries” in the
Original Agreement to include Global as one of the Subsidiaries purchased
by Purchaser, and to revise the description of the “Subsidiaries’ Assets
and Liabilities” in Section 2.1 of the Original Agreement, as
amended in the Acknowledgment and Amendment Letter and Amendment No. 1, to
include all of the liabilities of Global, as part of the amount of
liabilities of the Subsidiaries that were assumed by Purchaser as part of
this transaction.
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NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in this
Amendment, the parties, intending to be legally bound, hereby agree as
follows:
1. The
Parties hereby acknowledge and agree that Section 1.1(b) of the Original
Agreement shall be amended and replaced in its entirety as follows:
“(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; Coursemate, Inc., a California corporation; and
Global Computer Systems, Inc., a Delaware corporation.”
2. The
Parties hereby further acknowledge and agree that Section 2.1 of the Original
Agreement, as amended in the Acknowledgment and Amendment Letter and Amendment
No. 1, shall each be amended and replaced in their entirety as
follows:
9
“Section
2.1 Sale of
Subsidiaries. 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 and assume from Seller, and Seller shall sell,
transfer, assign and deliver to Purchaser: (a) all of the assets of the
Subsidiaries, including the Digital Learning Institute software platform, and
(b) all of the liabilities of the Subsidiaries in the approximate amount of
$1.959 million (collectively, the “Subsidiaries’ Assets and
Liabilities”). In connection with the Sale, Seller shall sell,
transfer and deliver and Purchaser shall purchase and acquire 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”).”
IN WITNESS WHEREOF, the
undersigned Parties have executed this Amendment No. 2 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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/s/ Gang Qiu
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/s/ Xxxxxxx Xxx
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Name:
Gang Qiu
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Name:
Xxxxxxx Xxx
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Title:
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Title:
Chief Executive Officer
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10
