WAIVER AND CONSENT
THIS
WAIVER AND CONSENT (this “Agreement”)
is
made on the 4th
of
April, 2008 by and among CHINA GREEN AGRICULTURE, INC., a Nevada corporation
(the “Company”),
and
each of the other signatories hereto (collectively, the “Investors”,
each
signatory, “Investor”).
Each
of the capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the SPA (as defined below).
RECITALS:
WHEREAS,
on
December 26, 2007 (the “Closing Date”), the Company and the Investors, along
with other investors, consummated a private placement by entering into a
Securities Purchase Agreement (the “SPA”) and its ancillary documents (including
the Holdback Escrow Agreement) pursuant to which the Company issued and sold
to
the Investors an aggregate of 6,313,616 shares of common stock of the Company
for a total of $20,519,255;
WHEREAS,
pursuant to Section 4.15 of the SPA and Section 3.2 of the Holdback Escrow
Agreement, the Company is obligated to hire a chief financial officer (“CFO”)
who is a
certified public accountant or possesses experience such that he or she can
reasonably serve as a chief financial officer, fluent in English, and
who
has a
working familiarity with (i) US GAAP and (ii) auditing procedures and compliance
for United States public companies no later than three months following the
Closing Date (the “CFO Deadline”);
WHEREAS,
the
Company has made efforts to seek a qualified CFO during the past three months
and has not been successful as of the date of this Agreement. The Company is
continuing to make the efforts and anticipates it can hire a qualified CFO
by
April 25, 2008;
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, pursuant to Section 6.4 of the SPA, the parties hereby agree
as
follows:
Section
1. Extension.
Each
undersigned Investor, solely as to itself and no other Investor, agrees that
the
CFO Deadline is hereby extended by thirty (30) days (the “Extension”) until and
including April 25, 2008 (the “Extension Period”).
Section
2. Consent
and Waiver. Each
undersigned Investor, solely as to itself and no other Investor, hereby consents
to the Extension and hereby waives any and all liquidated damages that may
accrue to the investors under the SPA or Holdback Escrow Agreement (the
“Liquidated Damages”) during the Extension Period; provided, however, that in
the event that the Company does not hire a qualified CFO by the end of the
Extension Period, the investors under the SPA shall be entitled to the
Liquidated Damages from April 26, 2008.
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Section
3. Miscellaneous.
(a) Expenses.
Each
party shall bear its own costs and expenses, including legal fees, incurred
or
sustained in connection with the preparation of this Agreement and related
matters, except that in accordance with Section 6.4 of the SPA, the Company
shall promptly pay the legal fees of one counsel representing the undersigned
in
connection with this Agreement.
(b) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and each Investor.
(c) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the SPA.
(d) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties
(e) Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
(f) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
SPA.
(g) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
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(h) Headings.
The
headings in this Agreement are for convenience only, do not constitute a part
of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(i) Except
as
specifically contemplated by this Agreement, each of the SPA and Holdback Escrow
Agreement shall remain in full force and effect, unaffected by this
Agreement.
(j) Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investors hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Investor pursuant
hereto, shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert with respect
to
such obligations or the transactions contemplated by this Agreement. Each
Investor shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose.
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IN
WITNESS WHEREOF,
the
parties have executed and delivered this Waiver and Consent as of the date
first
written above.
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COMPANY:
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By:
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/s/ Xxx Xx
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Name:
Xxx Xx
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Title:
President & Chief Executive
Officer
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INVESTORS:
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By:
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_________________________
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Name:
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Title:
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By:
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_________________________
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Name:
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Title:
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By:
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_________________________
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Name:
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Title:
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By:
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_________________________
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Name:
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Title:
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By:
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_________________________
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Name:
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Title:
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By:
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_________________________
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Title:
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