WAIVER AND FIRST AMENDMENT TO PUT/CALL AGREEMENT
WAIVER
AND FIRST AMENDMENT TO PUT/CALL AGREEMENT
THIS
WAIVER AND FIRST AMENDMENT TO PUT/CALL AGREEMENT
is dated
as of
April
9,
2008
(this “Amendment”),
by
and between EMERALD
DAIRY INC.,
a
Nevada corporation (the “Company”),
and
GRAND
ORIENT FORTUNE INVESTMENT LTD.,
a
limited liability company organized and existing under the laws of the British
Virgin Islands (the “Shareholder”).
Capitalized terms used and not otherwise defined herein are used as defined
in
the Put/Call Agreement (as defined below).
RECITALS:
WHEREAS,
the
Company and the Shareholder are parties to that certain Put/Call Agreement,
dated as of October 9, 2007 (the “Put/Call
Agreement”);
and
WHEREAS,
the
parties desire
to
amend the Put/Call Agreement to delete the current Section 2(d)(iii) in its
entirety.
NOW,
THEREFORE,
in
consideration of the premises and the other mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendments
to Put/Call Agreement.
Section
2(d) of the Put/Call Agreement is hereby amended by deleting such section in
its
entirety and substituting the following therefor:
“2(d) Conditions
to Exercise of Put Right.
The
Shareholder may exercise its Put Right in the event that:
(i) the
Company fails to exercise its Call Option within ten (10) days of a date on
which all of the Call Option Conditions have been met; or
(ii) the
Company consummates a private offering of not less than $5,000,000 of its
securities (a “Qualified
Offering”);
or
(iii) the
Company fails to consummate a Qualified Offering within two (2) years of the
date hereof (each of 2(d)(i), (ii), and (iii), a “Put
Right Trigger”).”
2. Waiver
and General Release.
Each
of
the parties hereto on their own behalf, and on behalf of their legal and
personal representatives, heirs, executors, administrators, affiliates,
partners, parents, subsidiaries and each of their respective officers,
directors, shareholders, owners, employees, agents, and successors and assigns
(collectively, in each case, the “Releasors”)
hereby
absolutely, fully, irrevocably and unconditionally release, remise relieve,
waive, relinquish, and forever discharge the other party, and such party’s legal
and personal representatives, affiliates, partners, parents, subsidiaries and
each of their respective officers, directors, shareholders, owners, employees,
agents, and successors and assigns (collectively,in each case, the “Releasees”),
from
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, obligations, promises, variances, trespasses, damages, costs,
judgments, liabilities, extents, executions, claims and demands whatsoever,
in
law or equity, whether based on state or federal statute or common law, known
or
unknown, fixed or contingent, that they have against any of the Releasees,
as of
the date hereof, for, upon, or by reason of any matter, cause or thing
whatsoever, relating to the Put/Call Agreement.
3. Put/Call
Agreement in Full Force and Effect as Amended.
Except
as specifically amended hereby, the Put/Call Agreement shall remain in full
force and effect and hereby is ratified and confirmed as so amended. The parties
hereto agree to be bound by the terms and conditions of the Put/Call Agreement
as amended by this Amendment, as though such terms and conditions were set
forth
herein and therein in full. Each reference in the Put/Call Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall
mean and be a reference to the Put/Call Agreement as amended by this Amendment,
and each reference herein shall mean and be a reference to the Put/Call
Agreement as amended and modified by this Amendment.
4. Miscellaneous.
(a) The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, be deemed to be an amendment
or modification of, or operate as a waiver of, any
provision of the Put/Call Agreement, nor constitute a waiver of any provision
of
the Put/Call Agreement. This Amendment shall not preclude the future exercise
of
any right, remedy, power or privilege available to the parties whether under
the Put/Call
Agreement, at law or otherwise.
(b) This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto or thereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound
by
its own facsimile signature and that it accepts the facsimile
signature of each other party. The descriptive headings of the various
sections of this Amendment are inserted for convenience of reference only and
shall not be deemed to affect the meaning
or construction of any of the provisions hereof or thereof. Whenever the context
and construction so require, all words herein in the singular number herein
shall be deemed to have been used in the
plural, and vice versa, and the masculine
gender shall include the feminine and neuter and the neuter shall include the
masculine and feminine.
(c) This
Amendment may not be changed, amended, restated, waived, supplemented,
discharged, canceled, terminated or otherwise
modified orally or by any course of dealing
or
in any
manner other than as provided in the Put/Call Agreement. This Amendment shall
be
considered part of the Put/Call Agreement. In the event of any inconsistency
between this Amendment and the Put/Call Agreement, the terms of this Amendment
shall control.
(d) This
Amendment and the Put/Call Agreement constitute the final, entire agreement
and
understanding between the parties with respect to the subject matter hereof
and
thereof and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements between the parties, and shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto and
thereto. There are no unwritten oral agreements between the parties with respect
to the subject matter hereof and thereof. If any provision of this Amendment
is
adjudicated to be invalid under applicable laws or regulations, such provision
shall be inapplicable to the extent of such invalidity without affecting the
validity or enforceability of the remainder of this Amendment which shall be
given effect so far as possible.
(e) This
Amendment and the rights and obligations of the parties hereunder shall be
governed by and construed and interpreted in accordance with the choice of
law
provisions set forth in the Put/Call Agreement.
(f) Each
party shall execute and deliver such other documents, certificates and/or
instruments and
take
such
other actions as the other party may reasonably request in order more
effectively to consummate the transactions contemplated hereby.
[SIGNATURES
APPEAR ON THE NEXT PAGES]
IN
WITNESS WHEREOF,
the
parties have caused this Waiver
and First Amendment
to Put/Call Agreement to be executed
under seal by their
respective officers thereunder duly authorized, as of the date first
above written.
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COMPANY:
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| By: | /s/ Xxx Xxxxxx | |
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Name: Xxx Xxxxxx
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Title:
Chief Financial Officer
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SHAREHOLDER:
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GRAND
ORIENT FORTUNE INVESTMENT LTD.
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| By: | /s/ Yu Xxx Xxx | |
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Name: Yu Xxx Xxx
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Title:
Director
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