INVESTOR RIGHTS AGREEMENT
EXHIBIT
2.7
THIS
INVESTOR RIGHTS AGREEMENT (this
“Agreement”)
is
made and entered into as of July 25, 2007,
by and
among (i) (a) Origin Agritech Ltd., a British Virgin Islands limited liability
company (the “Company”),
(b)
Xx. Xxx Gengchen, PRC ID No. 110223550623143 (“Xx.
Xxx”),
Xx.
Xxxx Yasheng, PRC ID No. 350102630401035 (“Xx.
Xxxx”)
and
Xx. Xxxx Xxxxx, Hong Kong ID No. X000000(0) (“Xx.
Xxxx”,
and
together with Xx. Xxx and Xx. Xxxx, the “Major
Shareholders”)
and
(ii) Citadel Equity Fund Ltd. (“Citadel”).
Capitalized terms used herein but not otherwise defined herein shall have the
respective meanings set forth in the Notes Purchase Agreement (as defined
below).
WITNESSETH:
WHEREAS,
the Company, the Major Shareholders and Citadel, among others, have entered
into
that certain Notes
Purchase
Agreement dated as of July 25, 2007 (the “Notes
Purchase
Agreement”),
pursuant to which the Company has agreed to issue to Citadel, and Citadel has
agreed to purchase from the Company, 1.0%
Guaranteed Senior Secured Convertible Notes due 2012 (the
“Notes”)
in an
aggregate principal amount of US$40,000,000,
which
are convertible into the Company’s common stock
with no
par value
(the
“Common
Stock”),
which
are being issued pursuant to that certain Indenture dated as of the date hereof
by and among the
Company, other subsidiaries of the Company named therein and The Bank of New
York, as trustee (the “Indenture”);
WHEREAS,
in consideration of Citadel entering into the
Notes
Purchase
Agreement, the Company has agreed to provide certain rights set forth in this
Agreement; and
WHEREAS,
it is a
condition to the Closing under the Notes Purchase Agreement that the parties
hereto shall have executed this Agreement.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto, intending to be legally bound by this agreement, agree as
follows:
1. Representations
and Warranties of the Company and the Major Shareholders.
Each of
the Company and the Major Shareholders (each of the foregoing, a “Warrantor”),
jointly and severally, represents and warrants that:
1.1 (i)
Sinodream Limited, of which Xx. Xxx is the sole director and shareholder, is
the
direct owner of record, free and clear of all Liens, of 3,336,400 shares
of
Common
Stock,
which
constitutes 14.2% of the outstanding voting power of the Company’s capital
stock,
(ii)
Leekdon Limited, of which Xx. Xxxx is the sole director and shareholder, is
the
direct owner of record, free and clear of all Liens, of 1,946,550
shares
of Common
Stock, which constitutes 8.3% of the outstanding voting power of the Company’s
capital stock and (iii) Bonasmart Limited, of which Xx. Xxxx is the sole
director and shareholder, is the direct owner of record, free and clear of
all
Liens, of 3,336,400
shares
of Common
Stock, which constitutes 14.2% of the outstanding voting power of the Company’s
capital stock,.
1.2 Each
of
the Warrantors has full power and authority to make, enter into and carry out
the terms of this Agreement. This Agreement has been duly executed and delivered
by each Warrantor and constitutes the legal, valid and binding obligations
of
such Warrantor enforceable against such Warrantor in accordance with its
terms.
1.3 The
execution and delivery of this Agreement by each Warrantor do not, and the
performance of this Agreement by such Warrantor will not: (i) conflict with
or
violate any law, rule (including the rules of any applicable securities
exchange), regulation, order, decree or judgment applicable to any Warrantor
or
by which any Warrantor or any of the properties of any Warrantor is or may
be
bound or affected, or the Charter Documents of the Company; (ii) result in
or
constitute (with or without notice or lapse of time) any breach of or default
under any contract to which any Warrantor is a party or by which any Warrantor
or any of the affiliates or properties of any Warrantor is or may be bound
or
affected, or (iii) result in the creation of any encumbrance or restriction
on
any of the shares of Common Stock or equity interests in the Company or
properties of any Warrantor. The execution and delivery of this Agreement by
each Warrantor do not, and the performance of this Agreement by each Warrantor
will not, require any consent or approval of any Person.
2. Covenants
and Agreements.
Unless
the context requires otherwise, the Company hereby covenants and agrees, and,
to
the extent permitted by applicable law, each of the Major Shareholders hereby
covenants and agrees, to cause each Group Company to do as follows:
2.1 FCPA.
Each of
the Warrantors shall, and shall cause each Group Company, any of the Company’s
Subsidiaries and their respective management to, (i) comply with the U.S.
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”),
including, without limitation, not making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of value to
any
“foreign official” (as the term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and (ii) conduct each such company’s respective
business in compliance with the FCPA.
2.2 PFIC.
No
Group Company shall become a “passive foreign investment company” within the
meaning of Section 1297 of the U.S. Internal Revenue Code of 1986.
2.3 OFAC.
Neither
any Group Company nor, to the knowledge of any Group Company, any director,
officer, agent, employee, Affiliate or Person acting on behalf of any Group
Company is currently subject to any U.S. sanctions administered by the Office
of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and
no Group Company shall, and each of the Consigning Shareholders shall cause
each
Group Company not to, directly or indirectly use the proceeds of the sale of
the
Notes, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other Person or entity, towards any sales
or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other
country sanctioned by OFAC or for the purpose of financing the activities of
any
Person currently subject to any U.S. sanctions administered by
OFAC.
2.4 Money
Laundering Laws.
Each of
the Group Companies shall, and each of the Consigning Shareholders shall cause
each Group Company to, conduct its operations at all times in compliance with
the money laundering statutes of applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any applicable governmental
agency.
3. Right
of First Refusal for Future Securities Offerings.
3.1 Issuance
Notice.
Subject
to the terms and conditions of this Section
and applicable securities laws, if, following the date hereof and until December
31, 2010, the Company proposes to issue or sell (other than the sale of
securities (a “Shelf
Registration”)
effected by preparing and filing a registration statement on Form S-3 (the
“Shelf
Registration Statement”)
in
compliance with the U.S. Securities Act of 1933, as amended, and the declaration
or ordering of the effectiveness of such registration statement by the U.S.
Securities and Exchange Commission (the “Commission”))
any
securities to a purchaser or purchasers that are not an Affiliate of the Company
(the “Proposed
Third Party Purchaser”),
the
Company shall, provided Citadel at such time holds not less than 20.0% of the
Notes then outstanding and not converted, not less than fifteen (15) business
days prior to the consummation of such issuance or sale of securities of the
Company, offer such securities to Citadel by sending written notice (an
“Issuance
Notice”)
to
Citadel, which shall state (a)
the
identity of the Proposed Third Party Purchaser, (b) a description of the
securities to be issued or sold, including detailed terms of such securities,
(c) the amount of the securities proposed to be issued to the Proposed Third
Party Purchaser (the “Offered
New Securities”),
(d)
the proposed purchase price for the Offered New Securities (the “Issuance
Price”);
and
(e) the terms and conditions of such proposed sale.
The
Issuance Notice shall also certify that the Company has received a firm offer
from the Proposed Third Party Purchaser and in good faith believes a binding
agreement for the Offered New Securities is obtainable on the terms set forth
in
the Issuance Notice. The Issuance Notice shall also include a copy of any
written proposal, term sheet or letter of intent or other agreement or
understanding relating to the Offered New Securities and proof satisfactory
to
the Company that the Offered New Securities will not violate any applicable
securities laws. Upon delivery of the Issuance Notice, such offer shall be
irrevocable unless and until the rights of first refusal provided for herein
shall have been waived or shall have expired.
3.2 Option;
Exercise.
By
notification to the Company within fifteen (15) business days after the Issuance
Notice is given, Citadel may elect to purchase or otherwise acquire, at the
price and on the terms specified in such Issuance Notice, up to all of the
Offered New Securities.
The
closing of any sale pursuant to this Section
3.2
shall
occur within sixty (60) days after the date on which such notification is given
by Citadel.
Citadel
shall be entitled, with the prior consent of the Company (such consent not
to be
unreasonably withheld or delayed), to apportion the rights of first refusal
hereby granted to it among itself and its Affiliates in such proportions as
it
deems appropriate.
3.3 Sale
to Third Parties.
If less
than all of the Offered New Securities are elected to be purchased or acquired
as provided in Section
3.2,
the
Company may, during the thirty (30) day period following the expiration of
the
15-day period as set forth in Section
3.2,
offer
and sell the remaining unsubscribed portion of such securities to the Proposed
Third Party Purchaser in the Issuance Notice at a price not less than, and
upon
terms no more favorable to the Proposed Third Party Purchaser than, those
specified in the Issuance Notice. If the Company does not enter into an
agreement for the sale of such securities within such period, or if such
agreement is not consummated within thirty (30) days after the execution
thereof, the right of first refusal provided hereunder shall be deemed to be
revived and such securities shall not be offered to a third party unless first
reoffered to Citadel in accordance with this Section.
3.4
Shelf
Registration.
(a) If,
following the date hereof and until December 31, 2010, the Company proposes
to
issue or sell its securities through a Shelf Registration, the Company shall,
provided Citadel at such time holds not less than 20.0% of the Notes then
outstanding and not converted, not less than 30 days prior to filing a
registration statement on Form S-3 in respect of the Shelf Registration, offer
such securities to Citadel by sending written notice (a “Shelf
Registration Issuance
Notice”)
to
Citadel, which shall state (a) a description of the securities to be issued
or
sold, including detailed terms of such securities, (b) the total amount of
the
securities to be issued or sold under such registration statement and (c) the
expected amount of proceeds from the issuance and sale of such securities.
By
notification to the Company within 10 days after the Shelf Registration Issuance
Notice is given, Citadel may elect to enter into negotiation with the Company,
and the Company shall engage in negotiation with Citadel in good faith, as
to
alternative financing other than the Shelf Registration. If the Company and
Citadel fail to reach a mutually satisfactory agreement with respect to such
financing five (5) business days prior to the filing date for the Shelf
Registration Statement in respect of such Shelf Registration, the Company shall
be entitled to proceed with the filing of such Shelf Registration
Statement.
(b) Following
the date on which the Shelf Registration Statement is declared effective by
the
Commission and so long as such Shelf Registration Statement remains effective,
the Company shall, not less than five (5) business days prior to the proposed
sale of any securities by way of a “take-down” under such Shelf Registration
Statement (a “Take-down”),
offer
such securities to Citadel by sending a written notice (a “Take-down
Notice”),
which
shall state (a) a description of the securities to be issued or sold, including
detailed terms of such securities, (b) the amount of the securities to be issued
or sold under such Shelf Registration Statement (the “Offered
Take-down Securities”);
(c)
the proposed purchase price for the Offered Take-down Securities (the
“Take-down Price”);
and
(d) the terms and conditions of such proposed sale.
(c) By
notification to the Company within three (3) business days after the Take-down
Notice is given, Citadel may elect to purchase or otherwise acquire, at the
price and on the terms specified in such Take-down Notice, up to all of the
Offered Take-down Securities. The closing of the sale of the Offered Take-down
Securities pursuant to this Section 3.4(c) shall occur within thirty (30) days
after the date on which such notification is given by Citadel. Citadel shall
be
entitled, with the prior consent of the Company (such consent not to be
unreasonably withheld or delayed), to apportion the rights of first offer under
this Section 3.4 granted to it among itself and its Affiliates in such
proportions as it deems appropriate.
(d) If
less
than all of the Offered Take-down Securities are elected to be purchased or
acquired as provided in Section 3.4(c) hereof, the Company may offer and sell
the remaining unsubscribed portion of such securities by way of a Take-down
at a
price not less than, and upon terms no more favorable than, those specified
in
the Take-down Notice. If the Company does not offer and sell such securities
through the Take-down within thirty (30) days after the execution thereof,
the
right of first offer provided in this Section 3.4 shall be deemed to be revived
and such securities shall not be offered by way of a Take-down unless first
reoffered to Citadel in accordance with this Section 3.4.
4. Right
of First Refusal for Future Debt Financing.
4.1 Incurrence
Notice.
Subject
to the terms and conditions of this Section and applicable laws, if, following
the date hereof and until December 31, 2010, the Company proposes to obtain
debt
financing (other than working capital facilities in an aggregate amount not
exceeding US$25,000,000 or its equivalent) from a financier or financiers that
are not an Affiliate of the Company (the “Proposed
Third Party Financier”),
the
Company shall, provided Citadel at such time holds not less than 20.0% of the
Notes then outstanding and not converted, not less than fifteen (15) business
days prior to drawdown of such debt financing, offer Citadel the opportunity
to
provide such debt financing by sending written notice (an “Incurrence
Notice”)
to
Citadel, which shall state (a) the identity of the proposed Third Party
Financier, (b) a description of the debt financing to be provided, including
detailed terms of such debt financing, (c) the principal amount of such
financing, and (d) the terms and conditions of such debt financing. The
Incurrence Notice shall also certify that the Company has received a firm
commitment from the Proposed Third Party Financier and in good faith believes
a
binding agreement for such debt financing is obtainable on the terms set forth
in the Incurrence Notice. The Incurrence Notice shall also include a copy of
any
written proposal, term sheet, commitment letter, letter of intent or other
agreement or understanding relating to such debt financing. Upon delivery of
the
Incurrence Notice, such offer shall be irrevocable unless and until the rights
of first refusal provided for herein shall have been waived or shall have
expired.
4.2 Option;
Exercise.
By
notification to the Company within fifteen (15) business days after the
Incurrence Notice is given, Citadel may elect to provide, on terms no less
beneficial to the Company than those specified in such Issuance Notice, the
debt
financing referred to therein. The closing of any such debt financing pursuant
to this Section 4.2 shall occur within sixty (60) days after the date on which
such notification is given by Citadel. Citadel shall be entitled, with the
prior
consent of the Company (such consent not to be unreasonably withheld or
delayed), to apportion the rights of first refusal hereby granted to it among
itself and its Affiliates in such proportions as it deems
appropriate.
4.3 Lapse.
If
Citadel does not elect to provide debt financing as provided in Section
4.2,
the
Company may, during the thirty (30) day period following the expiration of
the
fifteen (15) day period as set forth in Section
4.2,
enter
into the relevant debt financing arrangements with the Proposed Third Party
Financier on terms no more favorable to the Proposed Third Party Financer than
those specified in the Incurrence Notice. If the Company does not enter into
an
agreement for the provision of such debt financing within such period, or if
drawdown of such financing is not consummated within thirty (30) days after
the
execution thereof, the right of first refusal provided hereunder shall be deemed
to be revived and such debt financing shall not be provided by a third party
unless first reoffered to Citadel in accordance with this Section.
5. Limitation
on Conversion of Notes by Citadel.
Notwithstanding
any provision in the Indenture, the Company shall not effect any conversion
of
the Notes, and Citadel shall not have the right to convert any portion of the
Notes held by it, to the extent that after giving effect to such conversion,
Citadel (together with its Affiliates) would beneficially own in excess of
9.99%
of the number of shares of Common Stock outstanding immediately after giving
effect to such conversion (the “Conversion
Limitation”).
For
purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by Citadel and its Affiliates shall include the number of
shares of Common Stock issuable upon conversion of such Notes with respect
to
which the determination of such sentence is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (A) conversion
of
the remaining, nonconverted portion of any Notes beneficially owned by Citadel
or any of its Affiliates and (B) exercise or conversion of the unexercised
or
nonconverted portion of any other securities of the Company subject to a
limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by Citadel or any of its Affiliates. Except as set
forth in the preceding sentence, for purposes of this Section, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act. For purposes of this Section, in determining the number of outstanding
shares of Common Stock, Citadel may rely on the number of outstanding shares
of
Common Stock as reflected in (x) the Company’s most recent annual, quarterly or
current report on Form 20F or Form 6-K, respectively, as the case may be; (y)
a
more recent public announcement by the Company or (z) any other notice by the
Company setting forth the number of shares of Common Stock outstanding. For
any
reason at any time, upon the written or oral request of Citadel, the Company
shall within two business days confirm orally and in writing to Citadel the
number of shares of Common Stock then outstanding. In any case, the number
of
outstanding shares of Common Stock shall be determined after giving effect
to
the conversion or exercise of securities of the Company, including any Notes,
by
Citadel or its Affiliates since the date as of which such number of outstanding
shares of Common Stock was reported. By not less than sixty-one (61) days’ prior
written notice to the Company, Citadel may, at its election, increase or
decrease the Conversion Limitation to any other percentage not in excess of
9.99% specified in such notice, and the Conversion Limitation shall continue
to
apply until such sixty-first day (or such later date, as determined by Citadel,
as may be specified in such notice).
6. Indemnification.
(a) In
addition to all rights and remedies available to Citadel at law or in equity,
each of the Warrantors shall jointly and severally indemnify Citadel, and its
Affiliates, stockholders, officers, directors, employees, agents,
representatives, successors and permitted assigns (collectively, the
“Indemnified
Parties”)
and
save and hold each of them harmless against and pay on behalf of or reimburse
such party as and when incurred for any loss (including, without limitation,
diminutions in value), liability, demand, claim, action, cause of action, cost,
damage, deficiency, tax, penalty, fine or expense, whether or not arising out
of
any claims by or on behalf of any third party, including interest, penalties,
reasonable attorneys’ fees and expenses and all reasonable amounts paid in
investigation, defense or settlement of any of the foregoing (collectively,
“Losses”)
which
any such party may suffer, sustain or become subject to, as a result of, in
connection with, relating or incidental to or by virtue of:
(i) any
misrepresentation or breach of a representation or warranty on the part of
any
Warrantor herein;
(ii) any
nonfulfillment or breach of any covenant or agreement on the part of any
Warrantor herein; or
(iii) any
action, demand, proceeding, investigation or claim by any third party
(including, without limitation, governmental agencies) against or affecting
any
Warrantor and/or its Affiliates or Subsidiaries which, if successful, would
give
rise to or evidence the existence of or relate to a breach of (A) any of the
representations or warranties at the time made or (B) covenants of any
Warrantor.
(b) Notwithstanding
the foregoing, and subject to the following sentence, upon judicial
determination, which is final and no longer appealable, that the act or omission
giving rise to the indemnification hereinabove provided resulted primarily
out
of or was based primarily upon the Indemnified Party’s gross negligence, fraud
or willful misconduct (unless such action was based upon the Indemnified Party’s
reliance in good faith upon any of the representations, warranties, covenants
or
promises made by any Warrantor herein) by the Indemnified Party, no Warrantor
shall be responsible for any Losses sought to be indemnified in connection
therewith, and each Warrantor shall be entitled to recover from the Indemnified
Party all amounts previously paid in full or partial satisfaction of such
indemnity, together with all costs and expenses of such Warrantor reasonably
incurred in effecting such recovery, if any.
(c) All
indemnification rights hereunder shall survive indefinitely, regardless of
any
investigation, inquiry or examination made for or on behalf of, or any knowledge
of Citadel and/or any of the other Indemnified Parties.
(d) The
indemnity obligations that each Warrantor has under this Section shall be in
addition to any liability that such Warrantor may otherwise have.
(e) Notwithstanding
any other provisions in this Section 6, the Indemnified Parties shall not be
entitled to recover from the Warrantors for any Losses under this Section 6
unless and until the total amount of all such Losses indemnifiable hereunder
exceeds US$100,000, provided that when such amount is exceeded, the Warrantors
shall be liable for all amount including the first US$100,000. In any event,
the
Warrantors’ total liability for any Losses under this Section 6 shall not exceed
US$60,000,000.
7. Miscellaneous.
7.1 Termination.
Except
for Sections
6
and
7,
which
shall survive the termination of this Agreement, or as otherwise expressly
provided herein, this Agreement will be automatically terminated with no further
effect at such time that Citadel or any of its Affiliates (as defined in the
Indenture) is no longer a Beneficial Owner (as defined in the Indenture) of
any
Notes or Conversion Shares.
7.2 Specific
Enforcement.
Upon a
breach by any Warrantor of this Agreement, in addition to any such damages
as
Citadel is entitled to, directly or indirectly, by reason of said breach,
Citadel shall be entitled to injunctive relief against such Warrantor if such
relief is applicable and available, as a remedy at law would be inadequate
and
insufficient. Nothing in this Section shall be construed as limiting Citadel’s
remedies in any way.
7.3 Notices.
Notices
given pursuant to any provision of this Agreement shall be addressed as follows:
(i) if to the Company, to: Xx. 00 Xxxxx Xxxx Xxxx Xxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxx, People’x Xxxxxxxx xx Xxxxx, 000000, Fax: (00) 00 0000 0000, Attention:
Chief Financial Officer and (ii) if to the Purchaser, to: c/o 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, XXX, Fax: (0-000) 000 0000, Attention: Xx.
Xxxx
X. Xxxxxx, with a copy to 00/X Xxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxx, Fax: (000) 0000 0000, Attention: Xx. Xxxxxx Xxxx and Xx. Xxx Xxx, and
with
a copy to Milbank, Tweed, Xxxxxx & XxXxxx LLP, Suites 1029-1031, Twin Towers
(East), B12 Jianguomenwai Avenue, Xxxx Xxxx District, Beijing, People’x Xxxxxxxx
xx Xxxxx 000000 Fax: (00) 00 0000 0000, Attention: Mr. Xxxxxx Sun.
All
notices, requests, consents and other communications hereunder shall be in
writing and shall be personally delivered or delivered by overnight courier
or
mailed by first-class registered or certified mail, postage prepaid, return
receipt requested, or by facsimile transmission. Every notice hereunder shall
be
deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, upon transmission by facsimile and
confirmed facsimile receipt, or two (2) days after the same shall have been
deposited with a reputable international overnight courier.
7.4 Amendments
and Waiver.
Unless
otherwise specifically stated herein, any term of this Agreement may be amended
with the written consent of the party against whom enforcement may be sought
and
the observance of any term of this Agreement may be waived (either generally
or
in a particular instance and either retroactively or prospectively) by the
Company and the Consigning Shareholders, in the case of Citadel’s obligations,
and by Citadel in the case of the obligations of any other parties hereto.
No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
7.5 Entire
Agreement.
This
Agreement, together with the other Transaction Documents, embodies the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter
hereof.
7.6 Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement
to the extent permitted by law.
7.7 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
Any
controversy or claim arising out of or relating to this Agreement, or any breach
of this Agreement, shall be initiated, maintained and finally determined by
binding arbitration under the rules of arbitration of the Hong Kong
International Arbitration Centre (the “HKIAC”).
The arbitral tribunal shall be appointed within thirty (30) days of the
notice of dispute, and shall consist of three arbitrators appointed as follows:
one arbitrator shall be appointed by Citadel, one arbitrator shall be appointed
by the Company, and the third arbitrator shall be appointed jointly by such
two
arbitrators; provided,
however,
that if
the two arbitrators shall be unable to select the third arbitrator within such
thirty (30)-day period, such third arbitrator shall be chosen by the HKIAC
Court
of Arbitration. The place of arbitration shall be in Hong Kong SAR, PRC. The
arbitration shall be conducted in English. The arbitrators shall be experienced
and have knowledge in the subject matter of the dispute. Judgment upon any
award
rendered may be entered in any court having jurisdiction thereof, or application
may be made to such court for a judicial acceptance of the award and an order
of
enforcement, as the case may be. Any award pursuant to such proceeding
shall be granted in U.S. Dollars. The arbitration awards shall be
non-appealable, final, binding and conclusive upon parties. Each of the parties
hereby irrevocably agrees that any service of process made with respect to
a
dispute under this Agreement may be made pursuant to the notice procedures
set
forth in this Agreement.
7.8 Successors
and Assigns.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
be binding upon, and inure to the benefit of, the respective representatives,
successors and assigns of the parties hereto. Unless otherwise provided herein,
Citadel
may
assign its rights hereunder to any of
its
Affiliates
(as
defined below).
For
purposes of this Agreement, an “Affiliate”
shall
refer to: (i) any Person directly or indirectly controlling, controlled by
or
under common control with another Person, (ii) any Person owning or controlling
50% or more of the outstanding voting securities of such other Person, (iii)
any
officer, director or partner of such Person, (iv)
a trust
for the benefit of such Person referred to in the foregoing clause (ii) of
this
definition.
7.9 Counterparts.
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.
[Signature
page(s) to follow]
IN
WITNESS WHEREOF, the undersigned have executed this Investor Rights Agreement
as
of the day and year written above.
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THE COMPANY:
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| By: | ||
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Name: Xxx Xxxxxxxx
Title: Director
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| MAJOR SHAREHOLDERS: | ||
| |
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| By: | ||
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Xx. Xxx Gengchen |
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| By: | ||
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Xx. Xxxx Yasheng |
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| By: | ||
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Xx.
Xxxx
Xxxxx
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Accepted
and Agreed to:
CITADEL
EQUITY FUND LTD.
By:
Citadel Limited Partnership, its Portfolio Manager
By:
Citadel Investment Group, L.L.C., its General Partner
| By: | |||
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Name:
Title:
Authorized Signatory
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