REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.5
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of September 5, 2008, by and among Yongye Biotechnology
International, Inc., a Nevada corporation (the “Company”),
and
the investors signatory hereto (each an “Investor”
and
collectively, the “Investors”).
This
Agreement is made in connection with the Securities Purchase Agreement, dated
as
of the date hereof among the Company and the Investors (the “Purchase
Agreement”).
The
Company and the Investors hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Purchase Agreement will have the respective meanings given such terms in the
Purchase Agreement. As used in this Agreement, the following terms have the
respective meanings set forth in this Section 1:
“Delivery
Date”
means
the applicable date on which each of (i) the Restructuring Make Good Shares,
(ii) the Make Good Shares for the fiscal year ending December 31, 2008 and
(iii)
the Make Good Shares for the fiscal year ending December 31, 2009 are required
to be delivered to the Investors by the Make Good Pledgor pursuant to the Make
Good Escrow Agreement.
“Advice”
has
the
meaning set forth in Section 6(d).
“April
2008 Holder”
or
“April
2008 Holders”
means
the holder or holders, as the case may be, from time to time of April 2008
Registrable Securities.
“April
2008 Registrable
Securities”
means:
(i) the shares of Common Stock issued pursuant to the April Agreement, (ii)
the
2008 Make Good Shares (as defined in the April Agreement), as applicable, (iii)
any shares of Common Stock issuable upon the exercise of warrants issued to
the
investors pursuant to the April Financing, (iv) any shares of Common Stock
issuable upon the exercise of warrants issued to any placement agent in
connection with the April Financing and (v) any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event, or any price adjustment as a result of such stock splits,
reverse stock splits or similar events with respect to any of the securities
referenced in (i), (ii), (iii) or (iv) above.
“Commission
Comments”
means
written comments pertaining solely to Rule 415 which are received by the
Company from the Commission to a filed Registration Statement, a copy of which
shall have been provided by the Company to the Holders, which either (i)
requires the Company to limit the number of Registrable Securities which may
be
included therein to a number which is less than the number sought to be included
thereon as filed with the Commission or (ii) requires the Company to either
exclude Registrable Securities held by specified Holders or deem such Holders
to
be underwriters with respect to Registrable Securities they seek to include
in
such Registration Statement.
“Cut
Back Shares”
has
the
meaning set forth in Section 2(b).
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“Effective
Date”
means,
as to a Registration Statement, the date on which such Registration Statement
is
first declared effective by the Commission.
“Effectiveness
Date”
means
(a) with respect to the initial Registration Statement required to be filed
pursuant to Section 2(a), the earlier of: (i) the 150th
day
following the Closing Date and (ii) the fifth Trading Day following the date
on
which the Company is notified by the Commission that the initial Registration
Statement will not be reviewed or is no longer subject to further review and
comments; (b) with respect to any additional Registration Statements required
to
be filed pursuant to Section 2(a), the earlier of: (i) the 120th
day
following the applicable Filing Date for such additional Registration
Statement(s) and (ii) the fifth Trading Day following the date on which the
Company is notified by the Commission that such additional Registration
Statement(s) will not be reviewed or is no longer subject to further review;
(c)
with respect to any additional Registration Statements required to be filed
solely due to SEC Restrictions, the earlier of: (i) the 120th
day
following the applicable Restriction Termination Date and (ii) the fifth Trading
Day following the date on which the Company is notified by the Commission that
such Registration Statement will not be reviewed or is no longer subject to
further review and comments; (d) with respect to a Registration Statement
required to be filed under Section 2(c), the earlier of: (i) the 60th
day
following the date on which the Company becomes eligible to utilize Form S-3
to
register the resale of Common Stock; provided,
that,
if the Commission reviews and has written comments to such filed Registration
Statement that would require the filing of a pre-effective amendment thereto
with the Commission, then the Effectiveness Date under this clause (d)(i) shall
be the 90th
day
following the date on which the Company becomes eligible to utilize Form S-3
to
register the resale of Common Stock, and (ii) the fifth Trading Day following
the date on which the Company is notified by the Commission that the
Registration Statement will not be reviewed or is no longer subject to further
review and comments; and (e) with respect to a Registration Statement required
to be filed under Section 2(d), the earlier of: (i) the 120th
day
following the applicable Delivery Date; provided,
that,
if the Commission reviews and has written comments to such filed Registration
Statement that would require the filing of a pre-effective amendment thereto
with the Commission, then the Effectiveness Date under this clause (e)(i) shall
be the 150th
day
following the applicable Delivery Date, and (ii) the fifth Trading Day following
the date on which the Company is notified by the Commission that the
Registration Statement will not be reviewed or is no longer subject to further
review and comments.
“Effectiveness
Period”
means,
as to any Registration Statement required to be filed pursuant to this
Agreement, the period commencing on the Effective Date of such Registration
Statement and ending on the later to occur of (a) the first anniversary of
such
Effective Date, (b) such time as all of the Registrable Securities covered
by
such Registration Statement have been publicly sold by the Holders of the
Registrable Securities included therein, or (c) such time as all of the
Registrable Securities covered by such Registration Statement may be sold by
the
Holders without volume restrictions pursuant to Rule 144 as determined by the
counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
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“Filing
Date”
means
(a) with respect to the initial Registration Statement required to be filed
pursuant to Section 2(a), the 45th
day
following the Closing Date; (b) with respect to any additional Registration
Statements required to be filed pursuant to Section 2(a), the 15th
day
following the Effective Date for the last Registration Statement filed pursuant
to this Agreement under Section 2(a); (c) with respect to any additional
Registration Statements required to be filed due to SEC Restrictions, the
15th
day
following the applicable Restriction Termination Date; (d) with respect to
a Registration Statement required to be filed under Section 2(c), the
30th
day
following the date on which the Company becomes eligible to utilize Form S-3
to
register the resale of Common Stock, and (e) with respect to the Registration
Statement required to be filed under Section 2(d), the 45th
day
following the applicable Delivery Date (provided that if the Company is then
eligible to utilize Form S-3 to register the resale of Common Stock, the Filing
Date under this clause (e) shall be 30 days following the applicable Delivery
Date).
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
has
the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5(c).
“Losses”
has
the
meaning set forth in Section 5(a).
“New
York Courts”
means
the state and federal courts sitting in the City of New York, Borough of
Manhattan.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means:
(i) the Shares, (ii) the Restructuring Make Good Shares and the Make Good
Shares, as applicable, (iii) any shares of Common Stock issuable upon the
exercise of warrants issued to the Investors (the “Investor
Warrant Shares”),
(iv)
any shares of Common Stock issuable upon the exercise of warrants issued to
any
placement agent (the “Placement
Agent Warrant Shares”
and,
collectively, with the Investor Warrant Shares, the “Warrant
Shares”)
as
compensation in connection with the financing that is the subject of the
Purchase Agreement and (v) any securities issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event, or
any
price adjustment as a result of such stock splits, reverse stock splits or
similar events with respect to any of the securities referenced in (i), (ii),
(iii) or (iv) above.
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“Registration
Statement”
means
the initial registration statement required to be filed in accordance with
Section 2(a) and any additional registration statements required to be filed
under this Agreement, including in each case the Prospectus, amendments and
supplements to such registration statements or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference therein.
“Restriction
Termination Date”
has
the
meaning set forth in Section 2(b).
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“SEC
Restrictions”
has
the
meaning set forth in Section 2(b).
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Selling
Holder Questionnaire”
means
the selling security holder notice and questionnaire attached as Annex B hereto.
“Shares”
means
the shares of Common Stock issued or issuable to the Investors pursuant to
the
Purchase Agreement.
2. Registration.
(a) On
or
prior to the applicable Filing Date, the Company shall prepare and file with
the
Commission a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415.
Each Registration Statement required to be filed under this Agreement shall
be
filed on Form S-1 (or on such other form appropriate for such purpose) and
contain (except if otherwise required pursuant to written comments received
from
the Commission upon a review of such Registration Statement, other than as
to
the characterization of any Holder as an underwriter, which shall not occur
unless such characterization is required by the Commission or consented to
by
such Holder, or the Holder has identified itself as an underwriter in the
Selling Holder Questionnaire) the “Plan of Distribution” attached hereto as
Annex
A.
The
Company shall cause each Registration Statement required to be filed under
this
Agreement to be declared effective under the Securities Act as soon as possible
but, in any event, no later than its Effectiveness Date, and shall use its
reasonable best efforts to keep each such Registration Statement continuously
effective during its entire Effectiveness Period. By 5:00 p.m. (New York City
time) on the Business Day
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immediately
following the Effective Date of each Registration Statement, the Company shall
file with the Commission in accordance with Rule 424 under the Securities Act
the final prospectus to be used in connection with sales pursuant to such
Registration Statement (whether or not such filing is technically required
under
such Rule). If for any reason other than due solely to SEC Restrictions, a
Registration Statement is effective but not all outstanding Registrable
Securities are registered for resale pursuant thereto, then the Company shall
prepare and file by the applicable Filing Date an additional Registration
Statement to register the resale of all such unregistered Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule
415.
(b) Notwithstanding
anything to the contrary contained in this Section 2, if the Company receives
Commission Comments, and following discussions with and responses to the
Commission in which the Company uses its reasonable best efforts and time
to
cause as many Registrable Securities for as many Holders as possible and
as many
April 2008 Registrable Securities for as many April 2008 Holders as possible
to
be included in the Registration Statement filed pursuant to Section 2(a)
without
characterizing any Holder or any April 2008 Holder as an underwriter unless
such
characterization is consistent with written information provided by the Holder
or the April 2008 Holder in the Selling Holder Questionnaire (and in such
regard
uses its reasonable best efforts to cause the Commission to permit the affected
Holders and the affected April 2008 Holders or their respective counsel to
participate in Commission conversations on such issue together with Company
Counsel, and timely conveys relevant information concerning such issue with
the
affected Holders or the affected April 2008 Holders or their respective
counsel), the Company is unable to cause the inclusion of all Registrable
Securities and the April 2008 Registrable Securities, then the Company may,
following not less than three (3) Trading Days prior written notice to the
Holders and the April 2008 Holders (i) remove from the Registration Statement
such Registrable Securities and such April 2008 Registrable Securities (the
“Cut
Back Shares”)
and/or
(ii) agree to such restrictions and limitations on the registration and resale
of the Registrable Securities and the April 2008 Registrable Securities,
in each
case as the Commission may require in order for the Commission to allow such
Registration Statement to become effective; provided,
that in
no event may the Company characterize any Holder or any April 2008 Holder
as an
underwriter unless such characterization is required by the Commission or
consented to by such Holder or such April 2008 Holder, or the Holder or the
April 2008 Holder has identified itself as an underwriter in the Selling
Holder
Questionnaire (collectively, the “SEC
Restrictions”).
Unless
the SEC Restrictions otherwise require, any cut-back imposed pursuant to
this
Section 2(b) shall be determined
in the following order: (A) with respect to the April 2008 Registrable
Securities, any
cut-back imposed pursuant to this Section 2(b) shall be allocated among the
April 2008 Registrable Securities of the April 2008 Holders on a pro rata
basis;
and (B) with respect to the Registrable Securities, any cut-back imposed
pursuant to this Section 2(b) shall be as
follows: (i) first, the Placement
Agent Warrant Shares shall
be
cut-back on a pro rata basis among the Holders
thereof,
(ii) second, the Restructuring Make Good Shares and the Make Good Shares,
as
applicable, shall
be
cut-back on a pro rata basis among the Holders, (iii) third, the
Investor Warrant Shares shall
be
cut-back on a pro rata basis among the Holders, and (iv) fourth, the Shares
shall be cut-back on a pro rata basis among the Holders. The
required Effectiveness Date for such Registration Statement will be tolled
until
such time as the Company is able to effect the registration of the Cut Back
Shares in accordance with any SEC Restrictions if such Registrable Securities
and such April 2008 Registrable Securities cannot at such time be resold
by the
Holders and/or the April 2008 Holders thereof without volume limitations
pursuant to Rule 144 (such date, the “Restriction
Termination Date”).
From
and after the Restriction Termination Date, all provisions of this Section
2
shall again be applicable to the Cut Back Shares (which, for avoidance of
doubt,
retain their character as “Registrable Securities” or “2008 Registrable
Securities”) if such Registrable Securities or April 2008 Registrable Securities
cannot at such time be resold by the Holders or the April 2008 Holders thereof
without volume limitations pursuant to Rule 144 so that the Company will
be
required to file with and cause to be declared
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effective
by the Commission such additional Registration Statements in the time frames
set
forth herein as necessary to ultimately cause to be covered by effective
Registration Statements all Registrable Securities and April 2008 Registrable
Securities (if such Registrable Securities or April 2008 Registrable Securities
cannot at such time be resold by the Holders or the April 2008 Holders thereof
without volume limitations pursuant to Rule 144).
(c) Promptly
following any date on which the Company becomes eligible to use a registration
statement on Form S-3 to register Registrable Securities for resale, the Company
shall file a Registration Statement on Form S-3 covering all such Registrable
Securities permitted to be registered thereon (or a post-effective amendment
on
Form S-3 to the then effective Registration Statement) and shall cause such
Registration Statement to be filed by the Filing Date for such Registration
Statement and declared effective under the Securities Act as soon as possible
thereafter, but in any event prior to the Effectiveness Date therefor. Such
Registration Statement shall contain (except if otherwise required pursuant
to
written comments received from the Commission upon a review of such Registration
Statement, other than as to the characterization of any Holder as an
underwriter, which shall not occur unless such characterization is consistent
with written information provided by the Holder in the Selling Holder
Questionnaire) the “Plan of Distribution” attached hereto as Annex
A.
The
Company shall use its reasonable best efforts to keep such Registration
Statement continuously effective under the Securities Act during the entire
Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day
immediately following the Effective Date of such Registration Statement, the
Company shall file with the Commission in accordance with Rule 424 under the
Securities Act the final prospectus to be used in connection with sales pursuant
to such Registration Statement (whether or not such filing is technically
required under such Rule).
(d) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of the Restructuring Make Good
Shares and the Make Good Shares, as applicable, on Form S-3 if the Company
is
then eligible to utilize such Form (or on such other form appropriate for such
purpose) and shall cause such Registration Statement to be filed by the Filing
Date for such Registration Statement and declared effective under the Securities
Act as soon as possible thereafter, but in any event prior to the Effectiveness
Date therefor. Such Registration Statement shall contain (except if otherwise
required pursuant to written comments received from the Commission upon a review
of such Registration Statement, other than as to the characterization of any
Holder as an underwriter, which shall not occur without such Holder’s consent)
the “Plan of Distribution” attached hereto as Annex
A.
The
Company shall use its reasonable best efforts to keep such Registration
Statement continuously effective under the Securities Act during the entire
Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City
time) on the Business Day immediately following the Effective Date of such
Registration Statement, the Company shall file with the Commission in accordance
with Rule 424 under the Securities Act the final prospectus to be used in
connection with sales pursuant to such Registration Statement (whether or not
such filing is technically required under such Rule).
(e) [Intentionally
omitted.]
(f) If:
(i) a
Registration Statement is not filed on or prior to its Filing Date covering
the
Registrable Securities required under this Agreement to be included therein
(if
the
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Company
files a Registration Statement without affording the Holders the opportunity
to
review and comment on the same as required by Section 3(a) hereof, the Company
shall not be deemed to have satisfied this clause (i)), or (ii) the Company
does
not respond as promptly as reasonably possible to, and in no event later than
21
calendar days following receipt of, any comments received from the Commission
with respect to each Registration Statement and prepare and file with the
Commission such amendments, including pre-effective amendments, to each
Registration Statement and the Prospectus, or (iii) the Company fails to file
with the Commission a request for acceleration of a Registration Statement
in
accordance with Rule 461 of the Securities Act within 10 Trading Days of the
date that the Company is notified by the Commission that such Registration
Statement will not be “reviewed” or will not be subject to further review, (iv)
if, after the Effective Date of a Registration Statement, such Registration
Statement ceases to remain continuously effective as to all Registrable
Securities covered thereby or the Holders otherwise are not permitted to utilize
the Prospectus therein to resell such Registrable Securities, for more than
10
consecutive calendar days or more than an aggregate of 15 calendar days (which
need not be consecutive calendar days) during any 12-month period, (v) the
Effectiveness Date for the Registration Statement required to be filed under
Section 2(a) above shall occur later than the date that is 150 days after the
Filing Date, or (vi) the Company shall fail for any reason to satisfy the
current public information requirement under Rule 144 as to the applicable
Registrable Securities at a time when there is no effective Registration
Statement (any such failure or breach being referred to as an “Event,”
and
for purposes of clauses (i) - (vi), the date on which such Event occurs, being
referred to as “Event
Date”),
then
in addition to any other rights the Holders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of
each
such Event Date (if the applicable Event shall not have been cured by such
date)
until the applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as partial liquidated damages and not as a penalty, equal to
1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant
to the Purchase Agreement. The
parties agree that in no event will the Company be liable for liquidated damages
under this Agreement in excess of 1.0% of the aggregate Investment Amount of
the
Holders in any 30-day period or 10% for all liquidated damages payable under
this Section 2(f).
The
partial liquidated damages pursuant to the terms hereof shall apply on a daily
pro-rata basis for any portion of a month prior to the cure of an Event (except
in the case of the first Event Date), and shall cease to accrue (unless earlier
cured) upon the expiration of the Effectiveness Period.
(g) Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex
B
(a
“Selling
Holder Questionnaire”).
The
Company shall not be required to include the Registrable Securities of a Holder
in a Registration Statement and shall not be required to pay any liquidated
or
other damages under Section 2(f) to any Holder who fails to furnish to the
Company a fully completed Selling Holder Questionnaire at least two Trading
Days
prior to the Filing Date (subject to the requirements set forth in
Section 3(a)).
3. Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
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(a) Not
less
than four Trading Days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company shall
furnish to each Holder copies of the “Selling Stockholders” section of such
document, the “Plan of Distribution” and any risk factor contained in such
document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed, which documents will be subject to the
review of such Holder. Such documents may be delivered to such Holder via
electronic mail (i.e., e-mail). The Company shall not file a Registration
Statement, any Prospectus or any amendments or supplements thereto in which
the
“Selling Stockholder” section thereof differs from the disclosure received from
a Holder in its Selling Holder Questionnaire (as amended or supplemented).
The
Company shall not file a Registration Statement, any Prospectus or any
amendments or supplements thereto in which it (i) characterizes any Holder
as an
underwriter, unless such characterization is consistent with written information
provided by the Holder in the Selling Holder Questionnaire, (ii) excludes a
particular Holder due to such Holder refusing to be named as an underwriter,
or
(iii) reduces the number of Registrable Securities being registered on behalf
of
a Holder except pursuant to, in the case of subsection (iii), the Commission
Comments, without, in each case, such Holder’s express written authorization,
unless such reduction is made pursuant to Section 2(b) hereof.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously
effective as to the applicable Registrable Securities for its Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of
the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented
or
amended to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably possible to any comments received from the Commission with respect
to
each Registration Statement or any amendment thereto and, as promptly as
reasonably possible provide the Holders true and complete copies of all
correspondence from and to the Commission relating to such Registration
Statement that would not result in the disclosure to the Holders of material
and
non-public information concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the Registration Statement(s) and the disposition of all Registrable
Securities covered by each Registration Statement.
(c) Notify
the Holders as promptly as reasonably possible (and, in the case of (i)(A)
below, not less than three Trading Days prior to such filing and, in the case
of
(v) below, not less than three Trading Days prior to the financial statements
in
any Registration Statement becoming ineligible for inclusion therein) and (if
requested by any such Person) confirm such notice in writing no later than
one
Trading Day following the day (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment to a Registration Statement is proposed
to be filed; (B) when the Commission notifies the Company whether there will
be
a “review” of such Registration Statement and whenever the Commission comments
in writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the Holders
that pertain to the Holders as a Selling Stockholder or to the Plan of
Distribution, but not information which the Company believes would constitute
material and non-public information); and (C) with respect to each
Registration
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Statement
or any post-effective amendment, when the same has become effective; (ii) of
any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement covering any
or
all of the Registrable Securities or the initiation of any Proceedings for
that
purpose; (iv) of the receipt by the Company of any notification with respect
to
the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction, or the initiation
or
threatening of any Proceeding for such purpose; and (v) of the occurrence of
any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made
in
such Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(d) Use
its
reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) Furnish
to each Holder, without charge and at the option of the Company in electronic
format, at least one conformed copy of each Registration Statement and each
amendment thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing of such
documents with the Commission.
(f) Promptly
deliver to each Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request. The Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders in connection with the offering and sale of
the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior
to
any public offering of Registrable Securities, register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky
laws
of all jurisdictions within the United States as any Holder may request, to
keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration. Statements; provided,
however,
in
connection with any such registration or qualification, the Company shall not
be
required to (i) qualify to do business in any jurisdiction where the
Company would not otherwise be required to qualify, (ii) subject itself to
general taxation in any such jurisdiction, (iii) file a general consent to
service of process in any jurisdiction, or (iv) make any change to the Company’s
Articles of Incorporation or bylaws.
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9
-
(h) Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement(s), which certificates shall be free,
to
the extent permitted by the Purchase Agreement, of all restrictive legends,
and
to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holders may request.
(i) Upon
the
occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements or a
supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, no Registration Statement nor any Prospectus
will
contain an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading.
4. Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to a Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with any
Trading Market on which the Common Stock is then listed for trading, and (B)
in
compliance with applicable state securities or Blue Sky laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates
for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is reasonably requested by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for
the
Company, (v) Securities Act liability insurance, if the Company so desires
such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated
by
this Agreement. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation,
all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be
responsible for any broker or similar commissions incurred by any Holder or,
except to the extent provided for in the Transaction Documents, any legal fees
or other cost of the Holders in connection with this Agreement.
5. Indemnification.
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, agents, investment advisors,
partners, members and employees of each of them, each Person who controls any
such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
each such controlling Person, to the fullest extent permitted by applicable
law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of
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10
-
preparation
and reasonable attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any Prospectus
or
any form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus
or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (1) such
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in
the Registration Statement, such Prospectus or such form of Prospectus or in
any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (2) in the case of an occurrence
of
an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to
the
receipt by such Holder of an Advice or an amended or supplemented Prospectus,
but only if and to the extent that following the receipt of the Advice or the
amended or supplemented Prospectus the misstatement or omission giving rise
to
such Loss would have been corrected. The Company shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding of which
the
Company is aware in connection with the transactions contemplated by this
Agreement.
(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, arising solely out of or based solely
upon: (x) such Holder’s failure to comply timely with the prospectus delivery
requirements of the Securities Act after receiving written notice from the
Company that Rule 172 of the Securities Act may not be relied upon, or (y)
any
untrue statement of a material fact contained in any Registration Statement,
any
Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent that, (1) such
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in
the Registration Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such form of Prospectus
or
in any amendment or supplement thereto or (2) in the case of an occurrence
of an
event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of
an outdated or defective Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated or defective and prior to the receipt
by such Holder of an Advice or an amended or supplemented Prospectus, but only
if and to the extent that following the receipt of the Advice or the amended
or
supplemented Prospectus the misstatement or omission giving rise to such Loss
would have
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11
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been
corrected. In no event shall the liability of any selling Holder hereunder
be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party
and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which determination
is
not subject to appeal or further review) that such failure shall have
proximately and materially adversely prejudiced the Indemnifying
Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same counsel
were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing
that
it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense thereof
and such counsel shall be at the expense of the Indemnifying Party); provided
that, the Indemnifying Party shall pay for no more than two separate sets of
counsel for all Indemnified Parties and such legal counsel shall be selected
by
Holders of no less than a majority in interest of the then outstanding
Registrable Securities The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from
all liability on claims that are the subject matter of such Proceeding.
All
fees
and expenses of the Indemnified Party (including reasonable fees and expenses
to
the extent incurred in connection with investigating or preparing to defend
such
Proceeding in a manner not inconsistent with this Section) shall be paid to
the
Indemnified Party, as incurred, within ten Trading Days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such Indemnified
Party to undertake to reimburse all such fees and expenses to the extent it
is
finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).
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12
-
(d) Contribution.
If a
claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(b) No
Piggyback on Registrations.
Except
as and to the extent specified in Schedule
3.1(v)
to the
Purchase Agreement, neither the Company nor any of its security holders (other
than the Holders in such capacity pursuant hereto) may include securities of
the
Company in a Registration Statement other than the Registrable Securities and
the April 2008 Registrable
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13
-
Securities,
and the Company shall not during the Effectiveness Period enter into any
agreement providing any such right to any of its security holders.
(c) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(d) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Section 3(c), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the Registration Statement until such Holder’s
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement or until it is advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(e) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then the Company
shall send to each Holder written notice of such determination and, if within
fifteen calendar days after receipt of such notice, any such Holder shall so
request in writing, the Company shall include in such registration statement
all
or any part of such Registrable Securities such holder requests to be
registered, subject to customary underwriter cutbacks applicable to all holders
of registration rights.
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this Section 6(f),
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 the Holders of no less than a majority in interest
of the then outstanding Registrable Securities. Notwithstanding the foregoing,
a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of certain Holders and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities to which such
waiver or consent relates; provided,
further
that no amendment or waiver to any provision of this Agreement relating to
naming any Holder or requiring the naming of any Holder as an underwriter may
be
effected in any manner inconsistent with the written information provided by
the
Holder in the Selling Holder Questionnaire. Section 2(a) may not be amended
or
waived except by written consent of each Holder affected by such amendment
or
waiver.
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14
-
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number specified
in
this Section or (ii) electronic mail (i.e., Email) prior to 6:30 p.m. (New
York
City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at
the
facsimile number specified in this Section or (ii) electronic mail (i.e.,
Email)on a day that is not a Trading Day or later than 6:30 p.m. (New York
City
time) on any Trading Day, (c) the Trading Day following the date of mailing,
if
sent by U.S. nationally recognized overnight courier service, or (d) upon actual
receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as follows:
If
to the
Company:
0xx
Xxxxx,
Xxxxx 000 Xxx Xxxx International Tower
Xx.
0
Xxxxxxx Xxxx
Xxxxxxx
Xxxxxxxx
Xxxxxxx,
XXX
Facsimile:
x00 0000000000
Email:
xxx@xxxxx-xxxxxx.xxx
Attn.:
CEO
With
a
copy to:
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxx@xxxx.xxx
Attn.:
Xxxxxxxx X. Xxxxxxxx, Esq.
If
to an
Investor:
To
the
address set forth under such Investor’s name
on
the signature pages hereto
If
to any
other Person who is then the registered Holder:
To
the
address of such Holder as it appears in the stock transfer books of the Company
or
such
other address as may be designated in writing hereafter, in the same manner,
by
such Person.
(h) 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 and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under
the Purchase Agreement.
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15
-
(i) Execution
and Counterparts.
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.
(j) 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. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or its
respective Affiliates, employees or agents) will be commenced in the New York
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert
in
any Proceeding, any claim that it is not personally subject to the jurisdiction
of any New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce
any
provisions of this Agreement, then the prevailing party in such Proceeding
shall
be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) 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 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.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
-
16
-
(n) Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor under this Agreement are several and not joint
with
the obligations of each other Investor, and no Investor shall be responsible
in
any way for the performance of the obligations of any other Investor under
this
Agreement. Nothing contained herein or in any Transaction Document, and no
action taken by any Investor pursuant thereto, 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 or as a group with respect to such obligations or the transactions
contemplated by this Agreement or any other Transaction Document. Each Investor
acknowledges that no other Investor will be acting as agent of such Investor
in
enforcing its rights under this Agreement. Each Investor shall be entitled
to
independently 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. The Company acknowledges that each of the Investors has been provided
with the same Registration Rights Agreement for the purpose of closing a
transaction with multiple Investors and not because it was required or requested
to do so by any Investor.
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17
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
By:
/s/ Zishen Wu
Name:
Zishen Wu
Title:
CEO
[REMINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGES OF INVESTORS TO FOLLOW]
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18
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Black
River Commodity Select Fund Ltd.
|
|
|
by:
Black River Asset Management LLC,
|
|
|
its
Investment Adviser
|
|
|
|
|
|
By:
/s/ Xxxx
Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|
|
Title:
Principal
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Black
River Asset Management
LLC,
|
|
|
Street:
00000
Xxxxxxxxxx
Xxxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
______________________________
|
-
19
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Black
River Small Capitalization Fund Ltd.
|
|
|
by:
Black River Asset Management LLC,
|
|
|
its
Investment Adviser
|
|
|
|
|
|
By:
/s/ Xxxx
Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|
|
Title:
Principal
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Black
River Asset Management
LLC
|
|
|
Street:
00000
Xxxxxxxxxx
Xxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
______________________________
|
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20
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Ardsley
Partners Institutional Fund, L.P.
|
|
|
|
|
|
By:
/s/
Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Partner
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Ardsley
Partners
|
|
|
Street:
000
Xxxxxx
Xx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
Xxxxx@xxxxxxx.xxx
|
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21
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
0000
Xxxxxxxxx Family Trust, dated 2/25/98
|
|
|
|
|
|
By:
/s/ Xxxx
Xxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxx
|
|
|
Title:
Advisor / Trustee
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Ardsley
Partners
|
|
|
Street:
000
Xxxxxx
Xx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
Xxxxx@xxxxxxx.xxx
|
-
22
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Ardsley
Partners Fund II, L.P.
|
|
|
|
|
|
By:
/s/
Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Partner
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Ardsley
Partners
|
|
|
Street:
000
Xxxxxx
Xx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
Xxxxx@xxxxxxx.xxx
|
-
23
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Xxxxxx
Xxxxxx
|
|
|
|
|
|
By:
/s/
Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Agent / Advisor
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Ardsley
Partners
|
|
|
Street:
000
Xxxxxx
Xx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
Xxxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
Xxxxx@xxxxxxx.xxx
|
-
24
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Special
Situations Private Equity Fund, L.P.
|
|
|
By:
/s/
Xxxxx
Greenhouse
|
|
|
Name:
Xxxxx Greenhouse
|
|
|
Title:
Managing Director
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
|
|
|
Street:
000
Xxxxxxx Xxx. Xxxxx
0000
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, N.Y.
10022
|
|
|
Attention:
Xxxxx
Greenhouse/Xxxxxxxx Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
|
-
25
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Special
Situations Cayman Fund, L.P.
|
|
|
By:
/s/
Xxxxx
Greenhouse
|
|
|
Name:
Xxxxx Greenhouse
|
|
|
Title:
Managing Director
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
|
|
|
Street:
000
Xxxxxxx Xxx. Xxxxx
0000
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, N.Y.
10022
|
|
|
Attention:
Xxxxx
Greenhouse/Xxxxxxxx Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
|
-
26
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
MidSouth
Investor Fund LP
|
|
|
By:
/s/
Xxxxx X.
Xxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxx
|
|
|
Title:
General Partner
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Xxxxxxx
& Company
Inc.
|
|
|
Street:
000
0xx Xxx.
Xxxxx Xxxxx
0000
|
|
|
City/State/Zip:
Xxxxxxxxx,
XX
00000
|
|
|
Attention:
Xxxxx
X
Xxxxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
xxxx@xxxxxxx.xxx
|
-
27
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Hua-Mei
21st
Century Partners, LP
|
|
|
By:
/s/
Xxxxx
Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Managing Director
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Guerrilla
Capital Management,
LLC
|
|
|
Street:
000
Xxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, XX
00000
|
|
|
Attention:
Xxxxx
Xxxxx
|
|
|
Tel:
(000)
000-0000
|
|
|
Fax:
(000)
000-0000
|
|
|
Email:
xxxxxx@xx.xxxxxx.xxx
|
-
28
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Guerrilla
Partners, LP
|
|
|
By:
/s/
Xxxxx
Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Managing Director
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Guerrilla
Capital Management,
LLC
|
|
|
Street:
000
Xxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, XX
00000
|
|
|
Attention:
Xxxxx
Xxxxx
|
|
|
Tel:
(000)
000-0000
|
|
|
Fax:
(000)
000-0000
|
|
|
Email:
xxxxxx@xx.xxxxxx.xxx
|
-
29
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Xxxxxx-GEPT
Partners, L.P.
|
|
|
By:
/s/
Xxxxxx
Xxxxx
|
|
|
Name:
Xxxxxx xxxxx
|
|
|
Title:
CFO
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Xxxxxx
Asset
Management
|
|
|
Street:
000
Xxxx
Xxxxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, XX
00000
|
|
|
Attention:
Xxxxxx
Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
xxxxxx@xxxxxxxxxxxxxx.xxx
|
-
30
-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
NAME
OF INVESTING ENTITY
|
|
|
Xxxxxx
Partners, L.P.
|
|
|
By:
/s/
Xxxxxx
Xxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
CFO
|
|
|
|
|
|
ADDRESS
FOR NOTICE
|
|
|
|
|
|
c/o:
Xxxxxx
Asset
Management
|
|
|
Street:
000
Xxxx
Xxxxxx
|
|
|
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, XX
00000
|
|
|
Attention:
Xxxxxx
Xxxxx
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
Email:
xxxxxx@xxxxxxxxxxxxxx.xxx
|
-
31
-
Annex
A
Plan
of
Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or quoted or in private transactions. These sales
may be at fixed or negotiated prices. The Selling Stockholders may use any
one
or more of the following methods when selling shares:
· ordinary
brokerage transactions and transactions in which the broker-dealer solicits
Investors;
· block
trades in which the broker-dealer will attempt to sell the shares as agent
but
may position and resell a portion of the block as principal to facilitate the
transaction;
· purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
· an
exchange distribution in accordance with the rules of the applicable exchange;
· privately
negotiated transactions;
· to
cover
short sales made after the date that this Registration Statement is declared
effective by the Commission;
· broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per share;
· through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
· a
combination of any such methods of sale; and
· any
other
method permitted pursuant to applicable law.
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
-
32
-
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon
the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to
this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and
of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference
in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a
donee
or pledgee intends to sell more than 500 shares of Common Stock, a supplement
to
this prospectus will be filed if then required in accordance with applicable
securities law.
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the purchasers. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this Registration Statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.
The
Company has advised each Selling Stockholder that it may not use shares
registered on this Registration Statement to cover short sales of Common Stock
made prior to the date on which this Registration Statement shall have been
declared effective by the Commission. If a
-
33
-
Selling
Stockholder uses this prospectus for any sale of the Common Stock, it will
be
subject to the prospectus delivery requirements of the Securities Act. The
Selling Stockholders will be responsible to comply with the applicable
provisions of the Securities Act and Exchange Act, and the rules and regulations
thereunder promulgated, including, without limitation, Regulation M, as
applicable to such Selling Stockholders in connection with resales of their
respective shares under this Registration Statement.
The
Company is required to pay all fees and expenses incident to the registration
of
the shares, but the Company will not receive any proceeds from the sale of
the
Common Stock. The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
-
34
-
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common
Stock”),
of
YONGYE BIOTECHNOLOGY
INTERNATIONAL, INC.,
a
Nevada corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of August 26, 2008 (the “Registration
Rights Agreement”),
among
the Company and the Investors named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
|
1.
|
Name.
|
|
|
(a) Full
Legal Name of Selling Securityholder
_____________________________________________________________
|
||
|
(b) Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are held:
_____________________________________________________________
|
||
|
(c) Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the questionnaire):
_____________________________________________________________
|
||
|
2.
|
Address
for Notices to Selling Securityholder:
|
|
|
----------______________________________________________________________________
|
||
|
----------______________________________________________________________________
|
||
|
----------______________________________________________________________________
|
||
|
----------______________________________________________________________________
|
||
|
Telephone:_____________________________________________________________
|
||
|
Fax:
|
||
|
Contact
Person:
|
||
-
35
-
|
3.
|
Beneficial
Ownership of Registrable Securities:
|
|
|
Type
and Principal Amount of Registrable Securities beneficiary
owned:
|
||
|
___________________________________________________________
|
||
|
___________________________________________________________
|
||
|
___________________________________________________________
|
||
|
4.
|
Broker-Dealer
Status:
|
|
|
(a) Are
you a broker-dealer?
Yes
¨ No
¨
|
||
|
Note: If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration Statement.
|
||
|
(b) Are
you an affiliate of a broker-dealer?
Yes
¨ No
¨
|
||
|
(c) If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable Securities?
Yes
¨ No
¨
|
||
|
Note: If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration Statement.
|
||
|
5.
|
Beneficial
Ownership of Other Securities of the Company Owned by
the
Selling
Securityholder.
|
|
|
Except
as set forth below in this Item 5, the undersigned is not the beneficial
or registered owner of any securities of the Company other than the
Registrable Securities listed above in Item 3.
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
||
|
___________________________________________________________
|
||
|
___________________________________________________________
|
||
|
6.
|
Relationship
with the Company:
|
|
|
Except
as set forth below, neither the undersigned nor any of its affiliates,
officers, directors or principal equity holders (owners of 5% of
more of
the equity securities of the undersigned) has held any position or
office
or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
|
||
-
36
-
|
State
any exceptions here:
|
||
|
___________________________________________________________
|
||
|
___________________________________________________________
|
||
|
7.
|
The
Company has advised each Selling Stockholder that it may not use
shares
registered on the Registration Statement to cover short sales of
Common
Stock made prior to the date on which the Registration Statement
is
declared effective by the Commission, in accordance with 1997 Securities
and Exchange Commission Manual of Publicly Available Telephone
Interpretations Section A.65. If a Selling Stockholder uses the prospectus
for any sale of the Common Stock, it will be subject to the prospectus
delivery requirements of the Securities Act. The Selling Stockholders
will
be responsible to comply with the applicable provisions of the Securities
Act and Exchange Act, and the rules and regulations thereunder
promulgated, including, without limitation, Regulation M, as applicable
to
such Selling Stockholders in connection with resales of their respective
shares under the Registration Statement.
|
|
| The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof and prior to the Effective Date for the Registration Statement. | ||
| Certain legal consequences arise from being named as a Selling Securityholder in the Registration Statement and related prospectus. Accordingly, the undersigned is advised to consult their own securities law counsel regarding the consequence of being named or not being named as a Selling Securityholder in the Registration Statement and the related prospectus. | ||
| By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 6 and the inclusion of such information in the Registration Statement and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus. The undersigned hereby elects to include the Registrable Securities owned by it and listed above in Item 3 (unless otherwise specified in Item 3) in the Registration Statement. | ||
-
37
-
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated:_______________________
Beneficial
Owner:________________________
By:___________________________________
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Xx.
Xxxxxxx Xxxxxxx
Xxxx
& Xxxx LLC
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
Tel: (000)
000-0000
Fax: (000)
000-0000
-
38
-
