EXHIBIT 2.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is dated as of September
14, 2001 between Xxxxxx Xxxx International Inc. ("Purchaser") and Qiao Xing
Universal Telephone, Inc. (the "Company").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the parties shall enter into the Common Stock Purchase
Agreement, dated as of the date hereof, (the "Purchase Agreement") pursuant to
which the Purchaser has committed to purchase up to 2,000,000 shares of the
Company's Common Stock (terms not defined herein shall have the meanings
ascribed to them in the Purchase Agreement) and the Warrant; and
WHEREAS, the execution and delivery of this Agreement and
granting to the Purchaser of the registration rights set forth herein with
respect to the Shares is a component part of the transaction contemplated under
the Purchase Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" means all Shares that (i) have not been sold under the
Registration Statement, (ii) have not been sold under circumstances under which
all of the applicable conditions of Rule 144 (or any similar provision then in
force) under the Securities Act ("Rule 144") are met, (iii) have not otherwise
been transferred to persons who may trade such Shares without restriction under
the Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such Shares not bearing a restrictive legend, or (iv)
may not be sold without any time, volume or manner limitations pursuant to Rule
144(k) (or any similar provision then in effect) under the Securities Act. In
the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall be deemed to be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. The Purchaser
acknowledges and understands that in the absence of an effective Registration
Statement authorizing the resale of the Shares as provided herein, the Shares
are "restricted securities" as defined in Rule 144. The Purchaser understands
that no disposition or transfer of the Shares may be made by Purchaser in the
absence of (i) an opinion of counsel to the Purchaser, in form and substance
reasonably satisfactory to the Company, that such transfer may be made without
registration under the Securities Act or (ii) such registration.
With a view to making available to the Purchaser the benefits
of Rule 144, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of
Rule 144; and
(b) file with the Commission in a timely manner all
reports and other documents required to be filed by the Company
pursuant to Section 13 or 15(d) under the Exchange Act; and, if at any
time it is not required to file such reports but in the past had been
required to or did file such reports, it will, upon the request of the
Purchaser, make available other information as required by, and so long
as necessary to permit sales of, its Registrable Securities pursuant to
Rule 144.
Section 3. Registration Rights With Respect to the Shares.
(a) The Company agrees that it will use its best
efforts to prepare and file with the Securities and Exchange Commission
("Commission"), within forty-five (45) days after the date hereof, a
registration statement (on Form F-3 and/or F-1, or other appropriate
form of registration statement) under the Securities Act (the
"Registration Statement"), at the sole expense of the Company (except
as provided in Section 3(c) hereof), so as to permit a public offering
and resale of the Shares under the Securities Act by Purchaser.
(b) The Company shall use its best efforts to cause
the Registration Statement to become effective within the earlier of
(i) ninety (90) days of the date of filing the Registration Statement,
or (ii) five (5) days after receiving written notice of SEC clearance
and will within said five (5) days request acceleration of
effectiveness. The Company will notify Purchaser of the effectiveness
of the Registration Statement within one Trading Day of such event.
(c) The Company will maintain the Registration
Statement or post-effective amendment filed under this Section 3 hereof
effective under the Securities Act until the earliest of (i) the date
that all the Registrable Securities have been disposed of pursuant to
the Registration Statement, (ii) the date that all of the Registrable
Securities have been sold pursuant to the Registration Statement, (iii)
the date that all the Registrable Securities have been otherwise
transferred to persons who may trade such shares without restriction
under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such Shares not bearing
a restrictive legend, or (iv) the date that all the Registrable
Securities may be sold without any time, volume or manner limitations
pursuant to Rule 144(k) or any similar provision then in effect under
the Securities Act in the opinion of counsel to the Company, which
counsel shall be reasonably acceptable to the Purchaser (the
"Effectiveness Period").
(d) All fees, disbursements and out-of-pocket expenses
and costs incurred by the Company in connection with the preparation
and filing of the Registration Statement under subparagraph 3(a) and in
complying with applicable securities and Blue Sky laws (including,
without limitation, all attorneys' fees of the Company) shall be borne
by the Company. The Purchaser shall bear the cost of underwriting
and/or brokerage discounts, fees and commissions, if any, applicable to
the Shares being registered and the fees and expenses of its counsel.
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(e) The Purchaser and its counsel shall have a
reasonable period, not to exceed ten (10) Trading Days, to review the
proposed Registration Statement or any amendment thereto, prior to
filing with the Commission, and the Company shall provide the Purchaser
with copies of any comment letters received from the Commission with
respect thereto within two (2) Trading Days of receipt thereof.
(f) The Company shall make reasonably available for
inspection by Purchaser, any underwriter participating in any
disposition pursuant to the Registration Statement, and any attorney,
accountant or other agent retained by the Purchaser or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by the Purchaser or any such
underwriter, attorney, accountant or agent in connection with the
Registration Statement, in each case, as is customary for due diligence
examinations; provided, however, that all records, information and
documents that are designated in writing by the Company, in good faith,
as confidential, proprietary or containing any material non-public
information shall be kept confidential by the Purchaser and any such
underwriter, attorney, accountant or agent, unless such disclosure is
made pursuant to judicial process in a court proceeding (after first
giving the Company an opportunity promptly to seek a protective order
or otherwise limit the scope of the information sought to be disclosed)
or is required by law, or such records, information or documents become
available to the public generally or through a third party not in
violation of an accompanying obligation of confidentiality. If the
foregoing inspection and information gathering would otherwise disrupt
the Company's conduct of its business, such inspection and information
gathering shall, to the maximum extent possible, be coordinated on
behalf of the Purchaser and the other parties entitled thereto by one
firm of counsel designed by and on behalf of the majority in interest
of Purchaser and other parties.
(g) The Company shall qualify any of the Shares for
sale in such states as the Purchaser reasonably designates and shall
furnish indemnification in the manner provided in Section 6 hereof.
However, the Company shall not be required to qualify in any state
which will require an escrow or other restriction relating to the
Company and/or the sellers, or which will require the Company to
qualify to do business in such state or require the Company to file
therein any general consent to service of process.
(h) The Company at its expense will supply the
Purchaser with copies of the Registration Statement and the final
prospectus included therein (the "Prospectus") and other related
documents in such quantities as may be reasonably requested by the
Purchaser.
(i) The Company shall not be required by this Section
3 to include the Purchaser's Shares in any Registration Statement which
is to be filed if, in the opinion of counsel for both the Purchaser and
the Company (or, should they not agree, in the opinion of another
counsel experienced in securities law matters acceptable to counsel for
the Purchaser and the Company) the proposed offering or other transfer
as to which such registration is requested is exempt from applicable
federal and state securities laws and
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would result in all purchasers or transferees obtaining securities
which are not "restricted securities", as defined in Rule 144 under the
Securities Act.
(j) If at any time or from time to time after the
effective date of the Registration Statement, the Company notifies the
Purchaser in writing of the existence of a Potential Material Event (as
defined in Section 3(k) below), the Purchaser shall not offer or sell
any Shares or engage in any other transaction involving or relating to
Shares, from the time of the giving of notice with respect to a
Potential Material Event until the Purchaser receives written notice
from the Company that such Potential Material Event either has been
disclosed to the public or no longer constitutes a Potential Material
Event (the "Suspension Period"). Notwithstanding anything herein to the
contrary, if a Suspension Period occurs at any time during any period
commencing on a Trading Day a Draw Down Notice is deemed delivered and
ending ten (10) Trading Days following the end of the corresponding
Draw Down Pricing Period, then the Company must compensate the
Purchaser for any net decline in the market value of any Shares
purchased, or committed to be purchased, by the Purchaser pursuant to
such recent Draw Down Pricing Period through the end of such Suspension
Period. Net decline shall be calculated as the difference between the
highest VWAP during the applicable Suspension Period and the VWAP on
the Trading Day immediately following a properly delivered notice to
the Purchaser that such Suspension Period has ended. If a Potential
Material Event shall occur prior to the date the Registration Statement
is filed, then the Company's obligation to file the Registration
Statement shall be delayed without penalty for not more than thirty
(30) calendar days. THE COMPANY MUST GIVE PURCHASER NOTICE IN WRITING
OF THE EXISTENCE OF A POTENTIAL MATERIAL EVENT PROMPTLY UPON KNOWLEDGE
THAT SUCH AN EVENT EXISTS AND, WHERE POSSIBLE, AT LEAST TWO (2) DAYS
PRIOR TO THE FIRST DAY OF A SUSPENSION PERIOD, IF LAWFUL TO DO SO.
(k) "Potential Material Event" means any of the
following: (i) the possession by the Company of material information
that is not ripe for disclosure in a registration statement, as
determined in good faith by the Chief Executive Officer or the Board of
Directors of the Company or that disclosure of such information in the
Registration Statement would be detrimental to the business and affairs
of the Company; (ii) any material engagement or activity by the Company
which would, in the good faith determination of the Chief Executive
Officer or the Board of Directors of the Company, be adversely affected
by disclosure in a registration statement at such time, which
determination shall be accompanied by a good faith determination by the
Chief Executive Officer or the Board of Directors of the Company that
the Registration Statement would be materially misleading absent the
inclusion of such information, or (iii) pursuant to applicable law, the
Company is required to file a post-effective amendment to the
Registration Statement because the Company experiences a fundamental
change, must change the plan of distribution to the Prospectus, or must
update the information included in the Prospectus pursuant to Section
10(a)(3) of the Securities Act.
Section 4. Cooperation with Company. The Purchaser will
cooperate with the Company in all respects in connection with this Agreement,
including timely supplying all information reasonably requested by the Company
(which shall include all information regarding
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the Purchaser and proposed manner of sale of the Registrable Securities required
to be disclosed in the Registration Statement) and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities and entering into and performing its obligations
under any underwriting agreement, if the offering is an underwritten offering,
in usual and customary form, with the managing underwriter or underwriters of
such underwritten offering. The Purchaser shall consent to be named as an
underwriter in the Registration Statement. The Purchaser acknowledges that in
accordance with current Commission policy, the Purchaser will be named as the
underwriter of the Shares in the Registration Statement.
Section 5. Registration Procedures. If and whenever the
Company is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Securities Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible, subject to the Purchaser's assistance and cooperation as reasonably
required:
(a) (i) prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
Prospectus as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by
such registration statement whenever the Purchaser of such Registrable
Securities shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of
securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Securities Act)
and (ii) take all lawful action such that each of (A) the Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 not misleading and (B) the Prospectus, and
any amendment or supplement thereto, does not at any time during the
Effectiveness Period include 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;
(b) (i) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the
distribution or delivery of the Prospectus (including any supplements
thereto), provide draft copies thereof to the Purchaser and reflect in
such documents all such comments as the Purchaser (and its counsel)
reasonably may propose and (ii) furnish to the Purchaser such numbers
of copies of the Prospectus including a preliminary prospectus or any
amendment or supplement to the Prospectus, as applicable, in conformity
with the requirements of the Securities Act, and such other documents,
as the Purchaser may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities;
(c) comply with the New York blue sky laws with
respect to the Registrable Securities (subject to the limitations set
forth in Section 3(g) above), and do any and all other acts and things
which may be reasonably necessary or advisable to
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enable the Purchaser to consummate the public sale or other disposition
in such jurisdiction of the Registrable Securities;
(d) list such Registrable Securities on the Principal
Market, and any other exchange on which the Common Stock of the Company
is then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or the Nasdaq Stock Market;
(e) notify the Purchaser at any time when the
Prospectus is required to be delivered under the Securities Act, of the
happening of any event of which it has knowledge as a result of which
the Prospectus, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and the Company shall
prepare and file a curative amendment or curative supplement under
Section 5(a) as quickly as commercially possible and the period
beginning on the date of notice until the curative amendment or
curative supplement is filed shall be deemed a Suspension period and
the Company shall compensate the Purchaser as set forth in Section 3(j)
herein;
(f) as promptly as practicable after becoming aware of
such event, notify the Purchaser (or, in the event of an underwritten
offering, the managing underwriters) of the issuance by the Commission
or any state authority of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible
time and take all lawful action to effect the withdrawal, rescission or
removal of such stop order or other suspension;
(g) take all such other lawful actions reasonably
necessary to expedite and facilitate the disposition by the Purchaser
of its Registrable Securities in accordance with the intended methods
therefor provided in the Prospectus which are customary for issuers to
perform under the circumstances;
(h) in the event of an underwritten offering, promptly
include or incorporate in a prospectus supplement or post-effective
amendment to the Registration Statement such information as the
managing underwriters reasonably agree should be included therein and
to which the Company does not reasonably object and make all required
filings of such prospectus supplement or post-effective amendment as
soon as practicable after it is notified of the matters to be included
or incorporated in such prospectus supplement or post-effective
amendment; and
(i) maintain a transfer agent for its Common Stock.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless
the Purchaser and each person, if any, who controls the Purchaser
within the meaning of the Securities Act ("Distributing Purchaser")
against any losses, claims, damages or liabilities, joint or
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several (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation
and all reasonable attorneys' fees), to which the Distributing
Purchaser may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, or any related preliminary prospectus, the
Prospectus or amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, preliminary prospectus, the Prospectus or
amendment or supplement thereto in reliance upon, and in conformity
with, written information furnished to the Company by the Distributing
Purchaser specifically for use in the preparation thereof. This Section
6(a) shall not inure to the benefit of any Distributing Purchaser with
respect to any person asserting such loss, claim, damage or liability
who purchased the Registrable Securities which are the subject thereof
if the Distributing Purchaser failed to send or give a copy of the
Prospectus to such person at or prior to the written confirmation to
such person of the sale of such Registrable Securities, where the
Distributing Purchaser was obligated to do so under the Securities Act
or the rules and regulations promulgated thereunder. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Distributing Purchaser agrees that it will
indemnify and hold harmless the Company, and each officer or director
of the Company or person, if any, who controls the Company within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include,
but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees) to which the Company
or any such officer, director or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each
case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, preliminary prospectus, the Prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by such Distributing Purchaser
specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Distributing
Purchaser may otherwise have. Notwithstanding anything to the contrary
herein, the Distributing Purchaser shall not be liable under this
Section 6(b) for any
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amount in excess of the net proceeds to such Distributing Purchaser as
a result of the sale of Registrable Securities pursuant to the
Registration Statement.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve the indemnifying party
from any liability which it may have to any indemnified party except to
the extent of actual prejudice demonstrated by the indemnifying party.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, assume the defense thereof, subject to the
provisions herein stated and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless the
indemnifying party shall not pursue the action to its final conclusion.
The indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is the Distributing
Purchaser, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
has been specifically authorized in writing by the indemnifying party,
or (ii) the named parties to any such action (including any impleaded
parties) include both the Distributing Purchaser and the indemnifying
party and the Distributing Purchaser shall have been advised by such
counsel that there may be one or more legal defenses available to the
indemnifying party different from or in conflict with any legal
defenses which may be available to the Distributing Purchaser (in which
case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the Distributing Purchaser, it
being understood, however, that the indemnifying party shall, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable only for the
reasonable fees and expenses of one separate firm of attorneys for the
Distributing Purchaser, which firm shall be designated in writing by
the Distributing Purchaser and be approved by the indemnifying party).
No settlement of any action against an indemnified party shall be made
without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld.
All fees and expenses of the indemnified party
(including reasonable costs of defense and investigation in a manner
not inconsistent with this Section and all reasonable attorneys' fees
and expenses) shall be paid to the indemnified party, as incurred,
within ten (10) Trading Days of written notice thereof to the
indemnifying party; provided, that the indemnifying party may require
such indemnified party to undertake to
8
reimburse all such fees and expenses to the extent it is finally
judicially determined that such indemnified party is not entitled to
indemnification hereunder.
Section 7. Contribution. In order to provide for just and
equitable contribution under the Securities Act in any case in which (i) the
indemnified party makes a claim for indemnification pursuant to Section 6 hereof
but is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that the express provisions of
Section 6 hereof provide for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any indemnified party,
then the Company and the applicable Distributing Purchaser shall contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees), in either such case (after contribution from others) on the
basis of relative fault as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the applicable Distributing Purchaser
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Distributing Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7, in no
event shall any (i) Purchaser be required to undertake liability to any person
under this Section 7 for any amounts in excess of the dollar amount of the net
proceeds to be received by the Purchaser from the sale of the Purchaser's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Registration Statement under which such
Registrable Securities are or were to be registered under the Securities Act and
(ii) underwriter be required to undertake liability to any person hereunder for
any amounts in excess of the aggregate discount, commission or other
compensation payable to such underwriter with respect to the Registrable
Securities underwritten by it and distributed pursuant to the Registration
Statement.
Section 8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be delivered as set forth
in the Purchase Agreement.
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Section 9. Assignment. Neither this Agreement nor any rights
of the Purchaser or the Company hereunder may be assigned by either party to any
other person. Notwithstanding the foregoing, (a) the provisions of this
Agreement shall inure to the benefit of, and be enforceable by, any transferee
of any of the Common Stock purchased by the Purchaser pursuant to the Purchase
Agreement other than through open-market sales, and (b) upon the prior written
consent of the Company, which consent shall not be unreasonably withheld or
delayed in the case of an assignment to an affiliate of the Purchaser, the
Purchaser's interest in this Agreement may be assigned at any time, in whole or
in part, to any other person or entity (including any affiliate of the
Purchaser) who agrees to be bound hereby.
Section 10. Counterparts/Facsimile. This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when together shall constitute but one and the same
instrument, and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other party. In lieu of the
original, a facsimile transmission or copy of the original shall be as effective
and enforceable as the original.
Section 11. Remedies and Severability. The remedies provided
in this Agreement are cumulative and not exclusive of any remedies provided by
law. If any term, provision, covenant or restriction of this Agreement is held
by a board of arbitration or 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 best 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 those
that may be hereafter declared invalid, illegal, void or unenforceable.
Section 12. Conflicting Agreements. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the purchasers of Registrable Securities in this
Agreement or otherwise prevents the Company from complying with all of its
obligations hereunder.
Section 13. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made in New York by persons domiciled in New York City and without
regard to its principles of conflicts of laws. Any action may be brought as set
forth in the Purchase Agreement. The Company and the Purchaser agree to submit
themselves to the in personam jurisdiction of the state and federal courts
situated within the Southern District of the State of New York with regard to
any controversy arising out of or relating to this Agreement. Any party shall
have the right to seek injunctive relief from any court of competent
jurisdiction in any case where such relief is available. Any dispute under this
Agreement shall be submitted to arbitration under the American Arbitration
10
Association (the "AAA") in New York City, New York, and shall be finally and
conclusively determined by the decision of a board of arbitration consisting of
three (3) members (hereinafter referred to as the "Board of Arbitration")
selected as according to the rules governing the AAA. The Board of Arbitration
shall meet on consecutive business days in New York City, New York, and shall
reach and render a decision in writing (concurred in by a majority of the
members of the Board of Arbitration) with respect to the amount, if any, which
the losing party is required to pay to the other party in respect of a claim
filed. In connection with rendering its decisions, the Board of Arbitration
shall adopt and follow the laws of the State of New York. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more than
thirty (30) calendar days following commencement of proceedings with respect
thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. The Board of Arbitration shall
be authorized and is directed to enter a default judgment against any party
refusing to participate in the arbitration proceeding within thirty days of any
deadline for such participation. Any decision made by the Board of Arbitration
(either prior to or after the expiration of such thirty (30) calendar day
period) shall be final, binding and conclusive on the parties to the dispute,
and entitled to be enforced to the fullest extent permitted by law and entered
in any court of competent jurisdiction. The prevailing party shall be awarded
its costs, including attorneys' fees, from the non-prevailing party as part of
the arbitration award. Any party shall have the right to seek injunctive relief
from any court of competent jurisdiction in any case where such relief is
available. The prevailing party in such injunctive action shall be awarded its
costs, including attorney's fees, from the non-prevailing party.
[SIGNATURE PAGE FOLLOWS]
11
[SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on this __ day of September
2001
QIAO XING UNIVERSAL TELEPHONE, INC.
By:
--------------------------------
Xxx Xxx Wu, Chairman
XXXXXX XXXX
INTERNATIONAL INC.
By:
--------------------------------
Name:
Title:
12
