REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”)
is made
and entered into as of August 2, 2007, by and among CHINA
NATURAL GAS, INC.,
a
Delaware corporation (the “Company”),
and
the investors signatory hereto (each an “Investor”
and
collectively, the “Investors”).
This
Agreement is made pursuant to 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 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:
“Advice”
has
the
meaning set forth in Section 7(c).
“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
under Section 2(a), the earlier of: (a)(i) the 90th day following the Final
Closing Date; provided,
that,
if the Commission reviews and has written comments to the filed Registration
Statement that would require the filing of a pre-effective amendment thereto
with the Commission, then the Effectiveness Date under this clause (a)(i) shall
be the 120th day following the Final 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 (provided
further, however,
that
the periods specified in clauses (a)(i) and (a)(ii) shall be automatically
stayed for such additional period of time as the Registration Statement does
not
meet the requirements of Rule 3-01 of Regulation S-X, provided that such
automatic stay shall expire on December 31, 2007); (b) with respect to any
additional Registration Statements that may be required pursuant to Section
2(b), the earlier of (i) the 90th day following (x) if such Registration
Statement is required because the Commission shall have notified the Company
in
writing that certain Registrable Securities were not eligible for inclusion
on a
previously filed Registration Statement, the date or time on which the
Commission shall indicate as being the first date or time that such Registrable
Securities may then be included in a Registration Statement, or (y) if such
Registration Statement is required for a reason other than as described in
(x)
above, the date on which the Company first knows, or reasonably should have
known, that such additional Registration Statement(s) is required; provided,
that,
if the Commission reviews and has written comments to a Registration Statement
that would require the filing of a pre-effective amendment thereto with the
Commission, then the Effectiveness Date under this clause (b)(i) for such
Registration Statement shall be the 120th day following the date that the
Company first knows, or reasonably should have known, that such additional
Registration Statement is required under such Section, and (ii) the fifth
Trading Day following the date on which the Company is notified by the
Commission that such additional Registration Statement will not be reviewed
or
is no longer subject to further review and comments; or (c) with respect to
a
Registration Statement required to be filed under Section 2(e), the
“Second
Effectiveness Date.”
“Effectiveness
Period”
has the
meaning set forth in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Filing
Date”
means
(a) with respect to the initial Registration Statement required to be filed
under Section 2(a), the 60th day following the Final Closing Date; (b) with
respect to any additional Registration Statements that may be required pursuant
to Section 2(b), the 60th day following (x) if such Registration Statement
is
required because the Commission shall have notified the Company in writing
that
certain Registrable Securities were not eligible for inclusion on a previously
filed Registration Statement, the date or time on which the Commission shall
indicate as being the first date or time that such Registrable Securities may
then be included in a Registration Statement, or (y) if such Registration
Statement is required for a reason other than as described in (x) above, the
date on which the Company first knows, or reasonably should have known, that
such additional Registration Statement(s) is required; or (c) with respect
to a
Registration Statement required to be filed under Section 2(e), the
“Second
Filing Date.”
“Final
Closing Date”
means
that date which is 30 days after the Initial Closing (as that term is defined
in
the Purchase Agreement).
“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 6(c).
“Indemnifying
Party”
has the
meaning set forth in Section 6(c).
“Losses”
has the
meaning set forth in Section 6(a).
“California”
means
the state and federal courts sitting in the City of San Francisco, County of
San
Francisco.
“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 Warrant Shares; and (iii) any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event, or any conversion price adjustment with respect to any of
the
securities referenced in (i) above.
“Registration
Statement”
means
the initial registration statement required to be filed in accordance with
Section 2(a) and any additional registration statement(s) required to be filed
under Section 2(b), 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.
“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.
“Second
Effectiveness Date”
means
(a) with respect to the initial Registration Statement required to be filed
under Section 2(e), the earlier of: (a)(i) the 90th day following the Second
Final Closing Date; provided,
that,
if the Commission reviews and has written comments to the filed Registration
Statement that would require the filing of a pre-effective amendment thereto
with the Commission, then the Second Effectiveness Date under this clause (a)(i)
shall be the 120th day following the Second Final 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 (provided
further, however,
that
the periods specified in clauses (a)(i) and (a)(ii) shall be automatically
stayed for such additional period of time as the Registration Statement does
not
meet the requirements of Rule 3-01 of Regulation S-X, provided that such
automatic stay shall expire on December 31, 2007); and (b) with respect to
any
additional Registration Statements that may be required pursuant to Section
2(b), the earlier of (i) the 90th day following (x) if such Registration
Statement is required because the Commission shall have notified the Company
in
writing that certain Warrant Shares were not eligible for inclusion on a
previously filed Registration Statement, the date or time on which the
Commission shall indicate as being the first date or time that such Warrant
Shares may then be included in a Registration Statement, or (y) if such
Registration Statement is required for a reason other than as described in
(x)
above, the date on which the Company first knows, or reasonably should have
known, that such additional Registration Statement(s) is required; provided,
that,
if the Commission reviews and has written comments to a Registration Statement
that would require the filing of a pre-effective amendment thereto with the
Commission, then the Second Effectiveness Date under this clause (b)(i) for
such
Registration Statement shall be the 120th day following the date that the
Company first knows, or reasonably should have known, that such additional
Registration Statement is required under such Section, and (ii) the fifth
Trading Day following the date on which the Company is notified by the
Commission that such additional Registration Statement will not be reviewed
or
is no longer subject to further review and comments.
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“Second
Filing Date”
means
(a) with respect to the initial Registration Statement required to be filed
under Section 2(e), the 60th day following the Second Final Closing Date; and
(b) with respect to any additional Registration Statements that may be required
pursuant to Section 2(b), the 60th day following (x) if such Registration
Statement is required because the Commission shall have notified the Company
in
writing that certain Registrable Securities were not eligible for inclusion
on a
previously filed Registration Statement, the date or time on which the
Commission shall indicate as being the first date or time that such Registrable
Securities may then be included in a Registration Statement, or (y) if such
Registration Statement is required for a reason other than as described in
(x)
above, the date on which the Company first knows, or reasonably should have
known, that such additional Registration Statement(s) is
required.
“Second
Final Closing Date”
means
that date which is 30 days after the Second Closing (as that term is defined
in
the Purchase Agreement).
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
means
the shares of Common Stock issued or issuable to the Investors pursuant to
the
Purchase Agreement.
“Warrant
Shares”
means
the shares of Common Stock issued or issuable upon
exercise of the Warrants
issued
to the Investors pursuant to the Purchase Agreement.
2.
Registration.
(a)
On or
prior to each 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,
on Form S-1 (or on such other form appropriate for such purpose). Such
Registration Statement shall contain (except if otherwise required pursuant
to
written comments received from the Commission upon a review of such Registration
Statement) the “Plan of Distribution” attached hereto as Annex
A.
The
Company shall cause such Registration Statement 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 the
Registration Statement continuously effective under the Securities Act until
the
date which is the earlier of (i) five years after its Effective Date, (ii)
such
time as all of the Registrable Securities covered by such Registration Statement
have been publicly sold by the Holders, or (iii) such time as all of the
Registrable Securities covered by such Registration Statement may be sold by
the
Holders pursuant to Rule 144(k) as determined by the counsel to the Company
pursuant to a written opinion letter to such effect, addressed and reasonably
acceptable to the Company’s transfer agent and the affected Holders (the
“Effectiveness
Period”).
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(b)
If
for any reason the Commission does not permit all of the Registrable Securities
to be included in the Registration Statement filed pursuant to Section 2(a)
or
Section 2(e), or for any other reason any outstanding Registrable Securities
are
not then covered by an effective Registration Statement, then the Company shall
prepare and file by the Filing Date in the case of Registrable Securities to
be
included in the Registration Statement filed pursuant to Section 2(a) and by
the
Second Filing Date in the case of Warrant Shares to be included in the
Registration Statement filed pursuant to Section 2(e) for such Registration
Statement, an additional 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, on Form S-1 (or on such other form appropriate for such purpose).
Each such Registration Statement shall contain (except if otherwise required
pursuant to written comments received from the Commission upon a review of
such
Registration Statement) the “Plan of Distribution” attached hereto as
Annex
A.
The
Company shall cause each such Registration Statement to be declared effective
under the Securities Act as soon as possible but, in any event, by its
Effectiveness Date, and shall use its reasonable best efforts to keep such
Registration Statement continuously effective under the Securities Act during
the entire Effectiveness Period.
(c)
If:
(i) a Registration Statement is not filed on or prior to its Filing Date (if
the
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) a Registration Statement is not declared effective by the Commission on
or
prior to its required Effectiveness Date, or (iii) after its Effective Date,
without regard for the reason thereunder or efforts therefore, such Registration
Statement ceases for any reason to be effective and available to the Holders
as
to all Registrable Securities to which it is required to cover at any time
prior
to the expiration of its Effectiveness Period for more than an aggregate of
20
Trading Days (which need not be consecutive) (any such failure or breach being
referred to as an “Event,”
and for
purposes of clauses (i) or (ii) the date on which such Event occurs, or for
purposes of clause (iii) the date which such 20 Trading Day-period is exceeded,
being referred to as “Event
Date”),
then
in addition to any other rights the Holders may have hereunder or under
applicable law: (x) on each such Event Date 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; and (y) 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. In no event shall the Company be obligated to pay
any
liquidated damages to any Holder pursuant to this Section 2(c) in an aggregate
amount that exceeds 10% of the aggregate Investment Amount paid by such Holder
for Shares pursuant to the Purchase Agreement. The parties agree that the
Company will not be liable for liquidated damages under this Section in respect
of the aggregate Investment Amount that is attributable to any Registrable
Securities that are sold prior to an Event Date. If the Company fails to pay
any
partial liquidated damages pursuant to this Section in full within seven days
after the date payable, the Company will pay interest thereon at a rate of
10%
per annum (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such partial
liquidated damages are due until such amounts, plus all such interest thereon,
are paid in full. 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.
(d)
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(c) 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)).
(e)
In
the event the Second Closing (as defined in the Purchase Agreement) does not
occur prior to the Filing Date for the Registration Statement required by
Section 2(a), the Company shall prepare and file with the Commission a
Registration Statement covering the resale of all Warrant Shares not already
covered by an existing and effective Registration Statement for an offering
to
be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such
other form appropriate for such purpose). Such Registration Statement shall
contain (except if otherwise required pursuant to written comments received
from
the Commission upon a review of such Registration Statement) the “Plan of
Distribution” attached hereto as Annex
A.
The
Company shall cause such Registration Statement to be declared effective under
the Securities Act as soon as possible but, in any event, no later than its
Second Effectiveness Date, and shall use its reasonable best efforts to keep
the
Registration Statement continuously effective for the Effectiveness
Period.
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3.
Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a)
Not
less than two 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. 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).
(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; provided,
however,
that on
the Business Day following the Effectiveness Date, the Company shall file with
the Commission in accordance with Rule 424 the final prospectus to be used
in
connection with sales pursuant to the Registration Statement (a “Final
Prospectus Filing”);
provided,
further, however,
that
any advance notification provisions set forth in this Agreement, including
without limitation Sections 3(a) and 3(c), shall not apply to the extent that
such provisions would render impracticable the Final Prospectus Filing within
the period specified in this Section 3(b)(ii); (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 Statements, the delivery of the Prospectus or
Prospectuses 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 (if
requested by any such Person) confirm such notice in writing as promptly as
reasonably possible (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 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.
5
(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, 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, to register or qualify or
cooperate with the selling Holders in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky
laws
of all jurisdictions within the United States, 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.
(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 Statements, 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.
(j) Comply
with all applicable rules and regulations of the Commission.
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), (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.
6
5.
No
Piggyback on Registrations.
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. The Company shall
not file any other registration statements until 60 Trading Days following
the
date that a Registration Statement or Registration Statements registering all
the Registrable Securities is declared effective by the Commission, provided
that this Section shall not prohibit the Company from filing amendments to
registration statements already filed.
6.
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 preparation and reasonable
attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of 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 with the prospectus delivery
requirements of the Securities Act 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
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.
7
(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). 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).
(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.
8
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.
7.
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)
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.
(c)
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.
(d)
Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this Section 7(d),
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.
(e)
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 and reasonably promptly following such
transmission sends such notice or communication via U.S. mail or overnight
courier) at the facsimile number specified in this Section 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 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:
|
||
Tang
Xing Shu Ma Building, Suite 418
|
|||
Tang
Xing Road
|
|||
|
Xian
High Tech Area
|
||
|
|
Xian,
Shaanxi Province, China
|
|
|
|
Facsimile
No.:
|
|
|
|
Telephone
No.: 00-00-00000000
|
|
|
|
Attention:
Chief Financial Officer
|
9
|
With
a copy to:
|
Xxxxx
Rozynko LLP
|
|
|
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
|
Xxx
Xxxxxxxxx, XX 00000
|
|
|
|
Facsimile
No.: (000) 000-0000
|
|
|
|
Attention:
Xxxxxxxx X. Xxxxxxx, Esq.
|
|
|
|
|
|
|
If
to an Investor:
|
To
the address set forth under such Investor’s name on the signature pages
hereof
|
|
|
|
|
|
|
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.
|
(f)
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. Other than in connection with a merger, consolidation, sale of all
or
substantially all of the Company’s assets or other similar change in control
transaction, the Company may not assign this Agreement or any 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.
(g)
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.
(h)
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 California, 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 California
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the California 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 California 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.
(i)
Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(j)
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.
10
(k)
Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(l)
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. The Company’s obligations to each Investor under this Agreement are
identical to its obligations to each other Investor other than such differences
resulting solely from the number of Securities purchased by each Investor,
but
regardless of whether such obligations are memorialized herein or in another
agreement between the Company and an Investor. 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.
[Remainder
of Page Intentionally Left Blank]
11
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
|
|
By: |
/s/
Qinan Ji
|
|
Name:
Qinan
Ji
|
||
Title:
Chief
Executive Officer
|
[Signature
Pages of Investors to Follow]
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Alder Capital Partners I, L.P.
|
||
|
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
|
Name:
Xxxxxxx
Xxxxxxxx
|
||
Title:
Managing
Partner
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Alder
Capital, LLC.
|
|
Street:
00000
Xxxx Xxxxx Xx., Xxxxx 000
Xxxx/Xxxxx/Xxx:
Xxx
Xxxxx, XX 00000
Attention:
Xxxxxxx
Xxxxxxxx
|
||
Tel:
(000)000-0000x000
Fax:
(000)000-0000
Email: xxxxxxxxx@xxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Alder Offshore Partners, Ltd.
|
||
|
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
|
Name:
Xxxxxxx
Xxxxxxxx
|
||
Title:
Managing
Partner
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Alder
Capital, LLC.
|
|
Street:
00000
Xxxx Xxxxx Xx., Xxxxx 000
Xxxx/Xxxxx/Xxx:
Xxx
Xxxxx, XX 00000
Attention:
Xxxxxxx
Xxxxxxxx
|
||
Tel:
(000)000-0000x000
Fax:
(000)000-0000
Email: xxxxxxxxx@xxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Enable Opportunity Partners, L.P.
|
||
|
|
|
By: |
/s/
Xxxxxxx X’Xxxx
|
|
Name:
Xxxxxxx
X’Xxxx
|
||
Title:
Principal
and Portfolio Manager
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Enable
Opportunity Partners,
L.P.
|
|
Street:
Xxx
Xxxxx Xxxxxxxx Xxxxx 000
|
||
Xxxx/Xxxxx/Xxx:
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx
X’Xxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email: xxxxxx@xxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Enable Growth Partners, L.P.
|
||
|
|
|
By: |
/s/
Xxxxxxx X’Xxxx
|
|
Name:
Xxxxxxx
X’Xxxx
|
||
Title:
Principal
and Portfolio Manager
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxxx
X’Xxxx
|
|
Street:
Xxx
Xxxxx Xxxxxxxx Xxxxx 000
|
||
Xxxx/Xxxxx/Xxx:
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx
X’Xxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
xxxxxx@xxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Lagunitas Partners,
L.P.
|
||
|
|
|
By: |
/s/
Xxx X. Xxxxxx
|
|
Name:
Xxxxxx
+ McBaine Capital Management
|
||
Title:
General
Partner
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxx
+ XxXxxxx Capital
Management
|
|
Street:
50
Xxxxxx Place - Penthouse
|
||
City/State/Zip:
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxxxx
Xxxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email: Xxxxx@xxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Xxxxxx + XxXxxxx
International
|
||
|
|
|
By: |
/s/
Xxx X. Xxxxxx
|
|
Name:
Xxxxxx
+ XxXxxxx Capital Management
|
||
Title:
Investment
Advisor
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxx+McBaine
Capital
Management
|
|
Street:
50
Xxxxxx Place - Penthouse
|
||
City/State/Zip:
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxxxx
Xxxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email: Xxxxx@xxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Xxx D and Xxxxx X Xxxxxx
Trust
|
||
|
|
|
By: |
/s/
Xxx X. Xxxxxx
|
|
Name:
Xxxxxx
+ XxXxxxx Capital Management
|
||
Title:
Trustee
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxx+McBaine
Capital
Management
|
|
Street:
50
Xxxxxx Place - Penthouse
|
||
City/State/Zip:
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxxxx
Xxxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email: Xxxxx@xxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Excalibur Limited
Partnership
|
||
|
|
|
By: |
/s/
Xxxxxxx Xxxxxxx
|
|
Name:
Xxxxxxx
Xxxxxxx
|
||
Title:
President
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
|
|
Street:
00
Xxxxxx Xxxxxx Xxx.
|
||
Xxxx/Xxxxx/Xxx:
Xxxxxxx
Xx X0X 0X0
Attention:
Xxxxxxx
Xxxxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Pinnacle
China Fund,
L.P.
|
||
|
|
|
By: |
/s/
Xxxxx X.
Xxxx
|
|
Name:
Xxxxx
X. Xxxx
|
||
Title:
General
Partner of Pinnacle China Fund,
L.P.
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Pinnacle
China Fund,
L.P.
|
|
Street:
0000
Xxxxxxx Xxxx Xxxx., Xxx
000
|
||
Xxxx/Xxxxx/Xxx:
Xxxxx,
XX 00000
Attention:
Xxxxx
X. Xxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
xx@xxxxxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
The Pinnacle Fund,
L.P.
|
||
|
|
|
By: |
/s/
Xxxxx X.
Xxxx
|
|
Name:
Xxxxx
X. Xxxx
|
||
Title:
General
Partner of Pinnacle China Fund,
L.P.
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
The
Pinnacle Fund,
L.P.
|
|
Street:
0000
Xxxxxxx Xxxx Xxxx., Xxx
000
|
||
Xxxx/Xxxxx/Xxx:
Xxxxx,
XX 00000
Attention:
Xxxxx
X. Xxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
xx@xxxxxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Patara Capital,
L.P.
|
||
|
|
|
By: |
/s/
Xxxxx
Xxxxx
|
|
Name:
|
||
Title:
Principal
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Patara
Capital,
L.P.
|
|
Street:
0000
Xxxxxx Xxxxx, Xxx
000
|
||
Xxxx/Xxxxx/Xxx:
Xxxxxx,
XX 00000
Attention:
Xxxxx
Xxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
xxxxxx@xxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Keyrock Partners,
L.P.
|
||
|
|
|
By: |
/s/
Xxxxxxx X.
Xxxxxx
|
|
Name:
Xxxxxxx
X. Xxxxxx
|
||
Title:
Managing
Member
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Keyrock
Partners,
L.P.
|
|
Street:
0000
Xxxxxxx Xx, Xxx
000
|
||
Xxxx/Xxxxx/Xxx:
Xxxxxx,
XX 00000
Attention:
Xxxxxxx
Xxxxxx
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
Xxxxxxx@xxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
NAME
OF INVESTING ENTITY
Xxxxxx X. Xxxxx,
Xx.
|
||
|
|
|
By: |
/s/
Xxxxxx X. Xxxxx,
Xx.
|
|
Name:
Xxxxxx
X. Xxxxx, Xx.
|
||
Title:
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxx
X. Xxxxx,
Xx.
|
|
Street:
X.X.
Xxx 00000
|
||
Xxxx/Xxxxx/Xxx:
Xxxxxxx,
XX 00000
Attention:
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
|
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/
Xxxxx
Xxxxxxx
|
|
Name:
Xxxxx
Xxxxxxx
|
||
Title:
CFO
|
ADDRESS
FOR NOTICE
|
||
|
|
|
c/o:
|
Xxxxxx
Asset
Management
|
|
Street:
000
Xxx, Xxx., 00xx
Xxxxx
|
||
Xxxx/Xxxxx/Xxx:
Xxx
Xxxx, XX 00000
Attention:
Tel:
(000)000-0000
Fax:
(000)000-0000
Email:
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
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/
Xxxxx Xxxxxxx
|
|
||||||
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|||||
|
Title:
|
CFO
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Xxxxxx
Asset Management
|
|
||||||
|
Street:
|
000
Xxx, Xxx., 00xx
Xxxxx
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
|||||
|
Attention:
|
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Sansar Capital Special Opportunity Master Fund, L.P.
|
|||||||
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
||||||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|||||
|
Title:
|
CFO/COO
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Sansar
Capital Special Opportunity Master Fund
|
|
||||||
|
Street:
|
00
Xxxx 00xx
Xx.
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
|||||
|
Attention:
|
Xxxxx
Xxxxxx
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxxxxxx@xxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Octagon Capital Partners
|
|||||||
By:
|
/s/
Xxxxxx Xxxx
|
|
||||||
|
Name:
|
Xxxxxx
xxxx
|
|
|||||
|
Title:
|
General
Partner
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Xxxxxx
Xxxx
|
|
||||||
|
Street:
|
000
Xxxx 00xx
Xx., #000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
|||||
|
Attention:
|
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
|
|
|||||
|
Email:
|
xxxxxxxxx@xxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Xxxxxx
Capital Investments
|
|||||||
By:
|
/s/
Xxxxxx X. Xxxxxx
|
|
||||||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
|
|||||
|
Title:
|
CIO
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
|
|||||||
|
Street:
|
000
X. Xxxxxxxx Xxx.
|
|
|||||
|
City/State/Zip:
|
Xxxxxxxxx
Xxxxxx, XX 00000
|
|
|||||
|
Attention:
|
Xxxxxx
Xxxx
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
Xxxxxxxxx000@xxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Highbridge
International, LLC
|
|||||||
By:
|
/s/
Xxxx X. Chill
|
|
||||||
|
Name:
|
Xxxx
X. Chill
|
|
|||||
|
Title:
|
Managing
Director
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Highbridge
Capital Mangement, L.L.C.
|
|
||||||
|
Street:
|
0
Xxxx 00xx
Xx., 00xx
Xxxxx
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
|||||
|
Attention:
|
Xxx
X. Xxxxxx/Xxxx X. Chill
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)-000-0000
|
|
|||||
|
Email:
|
xxx.xxxxxx@xxxxx.xxx
xxxx.xxxxx@xxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Whitebox
Intermarket Partners, L.P.
|
|||||||
By:
|
/s/
Xxxxxxxx Xxxx
|
|
||||||
|
Name:
|
Xxxxxxxx
Xxxx
|
|
|||||
|
Title:
|
COO
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Whitebox
Advisors, LLC
|
|
||||||
|
Street:
|
0000
Xxxxxxxxx Xxxx., Xxx 000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxx,
XX 00000
|
||||||
|
Attention:
|
Xxxx
Xxxxx
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxxx@xxxxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Heartland
Value Fund
|
|||||||
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
||||||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
|
|||||
|
Title:
|
CEO
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Heartland
Advisors, Inc.
|
|
||||||
|
Street:
|
000
X. Xxxxx Xx., Xxx 000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxx,
XX 00000
|
||||||
|
Attention:
|
Xxxxxx
Best
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxx@xxxxxxxxxxxxxx.xxx
xxxxxx@xxxxxxxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Nite
Capital Master, Ltd.
|
|||||||
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
||||||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
|
|||||
|
Title:
|
Authorized
Signatory
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Nite
Capital Master, Ltd.
|
|
||||||
|
Street:
|
000
Xxxx Xxxx Xxx. Xxx 000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxxx,
XX 00000
|
||||||
|
Attention:
|
Xxxxx
Xxxxxxx
|
|
|||||
|
Tel:
|
(000)000-0000
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxx@xxxxxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Barrington
Partners, a California Limited Partnership
|
|||||||
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
||||||
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|||||
|
Title:
|
General
Partner
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Barrington
Partners
|
|
||||||
|
Street:
|
0000
Xxxxxxxx Xxxx., Xxx 000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxxxx
Xxxxxx, XX 00000
|
||||||
|
Attention:
|
Xxxxx
Xxxxx
|
|
|||||
|
Tel:
|
(000)000-0000x0
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxx@xxxxxxxx.xxx
|
In
Witness Whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
NAME
OF INVESTING ENTITY
|
|||||||
|
Barrington
Investors, L.P.
|
|||||||
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
||||||
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|||||
|
Title:
|
General
Partner
|
|
|||||
|
ADDRESS
FOR NOTICE
|
|||||||
c/o:
|
Barrington
Partners
|
|
||||||
|
Street:
|
0000
Xxxxxxxx Xxxx., Xxx 000
|
|
|||||
|
Xxxx/Xxxxx/Xxx:
|
Xxxxx
Xxxxxx, XX 00000
|
||||||
|
Attention:
|
Xxxxx
Xxxxx
|
|
|||||
|
Tel:
|
(000)000-0000x0
|
|
|||||
|
Fax:
|
(000)000-0000
|
|
|||||
|
Email:
|
xxxxx@xxxxxxxx.xxx
|
Annex
A
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 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;
· 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.
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. In addition, the Company has advised
each
Selling Stockholder that the Commission currently takes the position that
coverage of short sales “against the box” prior to the effective date of the
registration statement of which this prospectus is a part would be a violation
of Section 5 of the Securities Act, as described in Item 65, Section A, of
the
Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporate
Finance.
If
a
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.
ANNEX
B
SELLING
SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The
undersigned beneficial owner of common stock (the “Common
Stock”),
of
China Natural Gas, Inc. (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 July __, 2007 (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:
|
|
|
|
|||||||
|
|
Facsimile:
|
|
|
|
|||||||
|
|
Contact
Person:
|
|
|
|
|||||||
|
|
|
|
|
|
3.
|
|
Beneficial
Ownership of Registrable Securities:
|
||
|
|
|
||
|
|
Type
and Principal Amount of Registrable Securities beneficially owned:
|
||
|
|
|
||
|
|
|
||
4.
|
|
Broker-Dealer
Status:
|
||
|
|
|
||
|
|
(a)
|
|
Are
you a broker-dealer?
|
|
|
|
|
|
|
|
|
|
Yes
o No
o
|
|
|
|
|
|
|
|
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
o No
o
|
|
|
|
|
|
|
|
(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
o No
o
|
|
|
|
|
|
|
|
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.
|
|
Relationships
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.
|
||
|
|
|
||
|
|
State
any exceptions here:
|
||
|
|
|
||
|
|
|
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.
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.
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:
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Beneficial
Owner:
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By: | ||
Name:
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Title:
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PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
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Xxxxx
Rozynko LLP
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000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxxxx, XX 00000
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Facsimile
No.: (000) 000-0000
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Attention:
Xxxxxxxx X. Xxxxxxx, Esq.
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