Exhibit A Form of Subscription Agreement
Exhibit
10.2
Exhibit
A
This
subscription (this “Subscription”) is
dated January 22, 2010, by and between the investor identified on the
signature page hereto (the “Investor”) and China
Yida Holding, Co., a Delaware corporation (the “Company”), whereby
the parties agree as follows:
1. Subscription.
Investor
agrees to buy and the Company agrees to sell and issue to Investor such number
of (i) shares (the “Shares”) of the
Company’s common stock, $0.001 par value per share (the “Common Stock”), as
set forth on the signature page hereto, for an aggregate purchase price (the
“Purchase
Price”) equal to the product of (x) the aggregate number of Shares the
Investor has agreed to purchase and (y) the purchase price per Share as set
forth on the signature page hereto. The Purchase Price is set forth
on the signature page hereto.
The
Shares have been registered on a Registration Statement on Form S-3,
Registration No. 333-163687 (the “Registration
Statement”). The Registration Statement has been declared
effective by the Securities and Exchange Commission (the “Commission”) and is
effective on the date hereof. A final prospectus supplement will be
delivered to the Investor as required by law.
The
completion of the purchase and sale of the Shares (the “Closing”) shall take
place at a place and time (the “Closing Date”) to be
specified by the Company and Newbridge Securities Corporation (the “Placement Agent”)
party to the Placement Agency Agreement, dated January 22, 2010 (the “Agreement”), in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). Upon satisfaction or waiver of all the conditions to
closing set forth in the Agreement, at the Closing, (i) the Investor shall pay
the Purchase Price by wire transfer of immediately available funds to the escrow
account designated by the Company on Annex A attached
hereto, and (ii) the Company shall cause the Shares to be delivered to the
Investor with the delivery of the Shares to be made through the facilities of
The Depository Trust Company’s DWAC system in accordance with the instructions
set forth on the signature page attached hereto under the heading “DWAC
Instructions” (or, if requested by the Investor on the signature page hereto,
through the physical delivery of certificates evidencing the Shares to the
residential or business address indicated thereon).
2. Company Representations and
Warranties. The Company represents and warrants that: (a) it has
full corporate power and authority to enter into this Subscription and to
perform all of its obligations hereunder; (b) this Subscription has been duly
authorized and executed by, and when delivered in accordance with the terms
hereof will constitute a valid and binding agreement of, the Company enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally or subject to general principles of
equity; (c) the execution and delivery of this Subscription and the consummation
of the transactions contemplated hereby do not conflict with or result in a
breach of (i) the Company’s Certificate of Incorporation or Bylaws and
amendments thereto through the date hereof, or (ii) any material agreement to
which the Company is a party or by which any of its property or assets is bound;
(d) the Shares when issued and paid for in accordance with the terms of this
Subscription will be duly authorized, validly issued, fully paid and
non-assessable; (e) the Registration Statement and any post-effective amendment
thereto, at the time it became effective, did not contain any 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 not misleading; (f) the
prospectus contained in the Registration Statement, as amended and/or
supplemented, did not contain as of the effective date thereof, and as of the
date hereof does not contain, any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and (g)
all preemptive rights or rights of first refusal held by stockholders of the
Company and applicable to the transactions contemplated hereby have been duly
satisfied or waived in accordance with the terms of the agreements between the
Company and such stockholders conferring such rights.
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3. Investor Representations,
Warranties and Acknowledgments.
(a) The
Investor represents and warrants that: (i) it has full right, power and
authority to enter into this Subscription and to perform all of its obligations
hereunder; (ii) this Subscription has been duly authorized and executed by the
Investor and, when delivered in accordance with the terms hereof, will
constitute a valid and binding agreement of the Investor enforceable against the
Investor in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally or subject to general
principles of equity; (iii) the execution and delivery of this Subscription and
the consummation of the transactions contemplated hereby do not conflict with or
result in a breach of (A) the Investor’s certificate of incorporation or
by-laws (or other governing documents), or (B) any material agreement or any law
or regulation to which the Investor is a party or by which any of its property
or assets is bound; (iv) it has had full access to the base prospectus included
in the Registration Statement, as amended and/or supplemented as of the date
hereof, and the Company’s periodic reports and other information incorporated by
reference therein, and was able to read, review, download and print such
materials; (v) in making its investment decision in this offering, the Investor
and its advisors, if any, have relied solely on the Company’s public filings
with the Commission; (vi) it is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
securities representing an investment decision like that involved in the
purchase of the Shares; (vii) the Investor has had no position, office or other
material relationship within the past three years with the Company or persons
known to it to be affiliates of the Company; (viii), except as set forth below,
the Investor is not a, and it has no direct or indirect affiliation or
association with any, member of FINRA or an Associated Person (as such term is
defined under the NASD Membership and Registration Rules Section 1011) as of the
date hereof; and (ix) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which the Investor is
a part in connection with the offering of the Shares, acquired, or obtained the
right to acquire, twenty percent (20%) or more of the Common Stock (or
securities convertible into or exercisable for Common Stock) or the voting power
of the Company on a post-transaction basis.
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
(b) The
Investor also represents and warrants that, other than the transactions
contemplated hereunder, the Investor has not directly or indirectly, nor has any
person acting on behalf of or pursuant to any understanding with the Investor,
executed any transactions in securities of the Company, including “short sales”
as defined in Rule 200 of Regulation SHO under the Exchange Act (“Short Sales”), during
the period commencing from the time that the Investor first became aware of the
proposed transactions contemplated hereunder until the date hereof (the “Discussion
Time”). The Investor has maintained the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
4. Investor Covenant Regarding
Short Sales and Confidentiality. The Investor covenants that
neither it nor any affiliates acting on its behalf or pursuant to any
understanding with it will execute any transactions in securities of the
Company, including Short Sales, during the period after the Discussion Time and
ending at the time that the transactions contemplated by this Subscription are
first publicly announced through a press release and/or Form 8-K. The
Investor covenants that until such time as the transactions contemplated by this
Subscription are publicly disclosed by the Company through a press release
and/or Form 8-K, the Investor will maintain the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
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5. Miscellaneous.
This Subscription constitutes the
entire understanding and agreement between the parties with respect to its
subject matter, and there are no agreements or understandings with respect to
the subject matter hereof which are not contained in this Subscription.
This Subscription may be modified only in writing signed by the parties
hereto.
This Subscription may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and shall become effective when counterparts have been
signed by each party and delivered to the other parties hereto, it being
understood that all parties need not sign the same counterpart. Execution
may be made by delivery by facsimile.
The provisions of this Subscription are
severable and, in the event that any court or officials of any regulatory agency
of competent jurisdiction shall determine that any one or more of the provisions
or part of the provisions contained in this Subscription shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Subscription and this Subscription shall be reformed and
construed as if such invalid or illegal or unenforceable provision, or part of
such provision, had never been contained herein, so that such provisions would
be valid, legal and enforceable to the maximum extent possible, so long as such
construction does not materially adversely effect the economic rights of either
party hereto.
All communications hereunder, except as
may be otherwise specifically provided herein, shall be in writing and shall be
mailed, hand delivered, sent by a recognized overnight courier service such as
Federal Express, or sent via facsimile and confirmed by letter, to the party to
whom it is addressed at the following addresses or such other address as such
party may advise the other in writing:
To the Company: as set forth on
the signature page hereto.
To the Investor: as set forth on
the signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it is
addressed.
(e) This
Subscription shall be governed by and interpreted in accordance with the laws of
the State of New York for contracts to be wholly performed in such state and
without giving effect to the principles thereof regarding the conflict of
laws. To the extent determined by such court, the prevailing party shall
reimburse the other party for any reasonable legal fees and disbursements
incurred in enforcement of or protection of any of its rights under this
Subscription.
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If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this Subscription.
By:
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____________________________________
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Name:
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Number of
Shares:____________________________
Purchase Price per
Share: $____________________
Aggregate Purchase
Price: $____________________
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Title:
Address for Notice:
00/X
Xxxx Xxxxxxxx, Xx. 000, Xxxx Xxxx Xxxxxx
Xxxxxx
Xxxxxxxx, PRC
Attention: Chief
Executive Officer
Facsimile
No.: 00-000-0000-0000
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INVESTOR:
________________________________
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By: ________________________________________
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Name:
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Title:
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Select
method of delivery of Shares:
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o DWAC
DELIVERY
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DWAC Instructions:
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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_____________________________________
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DTC
Participant Number:
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_____________________________________
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Name
of Account at DTC Participant being
credited
with the Shares:
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_____________________________________
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Account
Number at DTC Participant being credited
with
the Shares:
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_____________________________________
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o PHYSICAL
DELIVERY OF CERTIFICATES
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Delivery Instructions:
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Name
in which Shares should be issued:
_______________________________________
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Address
for delivery:
c/o _______________________________
Street: ____________________________
City/State/Zip:
______________________
Attention:
__________________________
Telephone
No.: _____________________
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