WAIVER AGREEMENT
THIS
WAIVER AGREEMENT (this “Agreement”), dated as of
August ____, 2009, is entered into by and among Asian Financial, Inc., a Wyoming
Corporation (the “Company”), and the Investors
identified on the signature pages hereto (each, an “Investor” and collectively,
the “Investors”).
WHEREAS,
the Investors and the Company have entered into (1) that certain Securities
Purchase Agreement dated as of October 24, 2006, as amended by the Amendment to
Securities Purchase Agreement dated as of November 28, 2007 (as amended, the
“Amended Securities Purchase
Agreement”), which pursuant to Sections 4.4 and 4.8 thereof restrict the
filing of any registration statement by the Company other than a resale
registration statement filed on behalf of the Investors in respect of their
Registrable Securities and requires the listing of the Company’s shares as
promptly as possible following the effectiveness of that registration statement
and (2) that certain Registration Rights Agreement dated as of October 26, 2006
(the “Registration Rights
Agreement”), which provides the Investors certain registration rights as
described therein;
WHEREAS,
the Company intends to cause to be declared effective, on or before December 31,
2009, a registration statement on Form S-1 under the Securities Act relating to
a primary offering of its Common Stock (the “Offering”) on the New York
Stock Exchange (the “NYSE
Registration Statement”);
WHEREAS,
in order to permit the foregoing, (1) certain rights described in the Amended
Securities Purchase Agreement are required to be waived by Holders of no less
than a majority interest of the outstanding Shares and (2) certain registration
rights described in the Registration Rights Agreement are required to be waived
by Holders of no less than a majority in interest of the outstanding Registrable
Securities;
WHEREAS,
each of the Investors signatory hereto holds in aggregate the number of Shares
set forth on their respective signature pages hereto, and collectively the
Investors signatory hereto hold in the aggregate Shares representing in excess
of a majority in interest of the outstanding Shares (in the case of the Amended
Securities Purchase Agreement) and the Registrable Securities (in the case of
the Registration Rights Agreement);
NOW,
THEREFORE, the parties hereby agree as follow:
1. Defined Terms. Capitalized
terms used and not otherwise defined herein that are defined in the Amended
Securities Purchase Agreement and the Registration Rights Agreement will have
the meanings given such terms in the Amended Securities Purchase Agreement and
the Registration Rights Agreement.
2. Registration and Listing.
The Company shall no later than December 31, 2009: (a) file the NYSE
Registration Statement with the Commission, (b) cause the NYSE Registration
Statement to be declared effective under the Securities Act, and (c) cause its
Common Stock to be listed on the New York Stock Exchange.
3. Waiver. On the basis of
the foregoing, each Investor agrees to waive all of its rights under (a)
Sections 4.4 and 4.8 of the Amended Securities Purchase Agreement and (b)
Sections 2(a) and (e) of the Registration Rights Agreement as they relate to the
Registrable Securities until December 31, 2009. In addition, if, after the
listing of the Company’s Common Stock on the New York Stock Exchange, all of the
Registrable Securities held by the Investors may be sold by them without
restrictions pursuant to Rule 144 as determined by counsel to the Company
pursuant to a written opinion letter to such effect, addressed and acceptable to
the Company’s transfer agent and affected Investors, the Company shall no longer
be required to maintain an effective registration statement registering the
resale of the Registrable Securities.
4. Piggy-Back Rights.
Notwithstanding Section 3.1(t) of the Amended Securities Purchase Agreement and
Schedule 3.1(t) thereto and Section 6(a) and (e) of the Registration Rights
Agreement, the Company and each Investor agree that the amount of Registrable
Securities of the selling Investors to be included in the Offering (on a pro
rata basis among themselves) shall be 33 1/3% of the total amount of securities
included in the Offering, subject to the following reductions:
(a) If the size of the
Offering is US$40.0 million or less, then the selling Investors shall not have
the right to include any of their Registrable Securities in the
Offering;
(b) If the size of the
Offering is between US$40.0 million and US$60.0 million, then the selling
Investors’ percentage of the total amount of securities to be included in the
Offering shall be reduced from 33 1/3% to a percentage equal to the quotient of
the following formula:
(A -
B)/A
Where:
A = Size
of the Offering
B =
US$60.0 million
In
addition, each Investor agrees that the Company shall not be required to include
a selling Investor’s Registrable Securities in the Offering unless such selling
Investor accepts the terms of the underwriting as agreed upon between the
Company and the underwriters of the Offering (the “Underwriters”) and provides
the Company and the Underwriters with a completed Selling Shareholder
Questionnaire and any other information or instruments reasonably required by
the Underwriters for the purpose of the Offering.
5. Reaffirmation. Except as expressly
provided herein, the Registration Rights Agreement is reaffirmed and ratified in
all respects. In the event of any conflict between the terms or provisions of
this Agreement and the Registration Rights Agreement, then this Agreement shall
prevail in all respects as to the subject matter herein. Otherwise, the
provisions of the Registration Rights Agreement shall remain in full force and
effect.
6. Execution and Counterparts. For the
avoidance of doubt, it is understood that each Investor is executing this
Agreement solely on its behalf, but this Agreement (as it is executed by
Investors holding in the aggregate Shares representing in excess of a majority
in interest of the outstanding Shares (in the case of the Amended Securities
Purchase Agreement) and the Registrable Securities (in the case of the
Registration Rights Agreement)) is binding on all Investors. 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 Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding obligation
of the party executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature were the original
thereof.
7. Governing Law. All questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York, without regard to the principles of conflicts of
law thereof.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed on the date first
above written.
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COMPANY
Asian
Financial, Inc.
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By:
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Name:
Xxxxxx Xxx
Title:
Chief Executive Officer
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INVESTORS
[Investor]
Total
number of Shares owned:
By:
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