EXHIBIT 4.5
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of December 17, 2002, (this
"Agreement"), is made by and between China World Trade Corporation, a Nevada
corporation (the "Company") and Powertronic Holdings Limited, a British Virgin
Islands corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to a Share Purchase Agreement, dated as of December 17,
2002, between the Company and the Purchaser (the "Share Purchase Agreement"),
the Company has agreed to issue and sell to the Purchaser, (i) 1,000,000 shares
of the Company's common stock ("Company Shares"), each with par value US$0.001
per share (the "Common Stock"); and (ii) a two year warrant to purchase up to
2,000,000 shares of the Common Stock at an exercise price of US$0.575 per share
(the "Warrants") for the purchase price of US$0.50 per share (including the
Warrants) for an aggregate purchase price of US$500,000;
WHEREAS, pursuant to the terms of this Agreement, the Company will issue
and sell to the Purchaser the Company Shares, the Warrants and upon the exercise
of the Warrants the Company will issue to the Purchaser or its permitted assigns
shares of Common Stock (such Company Shares and shares of Common Stock issued
upon the exercise of the Warrants are collectively referred to herein as the
"Registrable Securities"); and
WHEREAS, to induce the Purchaser to execute and deliver the Share Purchase
Agreement, the Company has agreed to provide to the Purchaser and its permitted
assigns certain registration rights under the Securities Act of 1933, as amended
(the "Securities Act"), and applicable state securities laws; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Holder" or "Holders" mean a holder or holders of Registrable
Securities or securities convertible into or exercisable for Registrable
Securities.
(b) "Registration Statement" means a registration statement or
registration statements of the Company filed under the Securities Act covering
Registrable Securities.
(c) "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
registration statement by the United States Securities and Exchange Commission
(the "Commission").
(d) Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Share Purchase Agreement.
2. DEMAND REGISTRATIONS.
(a) Registration Statement. Subject to the terms of this Agreement,
in the event that the Company shall receive from the Holder(s) (who in the
aggregate hold at least 50% of the Registrable Securities, a written request
that the Company effect any Registration with respect to all or a part of the
Registrable Securities), the Company shall, as soon as practicable and in no
event later than 90 days after the receipt of the written request, prepare and
file with the Commission a Registration Statement or Registration Statements (as
necessary) on Form S-3 (if available) covering the resale of all of the
Registrable Securities. If Form S-3 is unavailable and/or inappropriate for such
a registration, the Company shall use such other form as is available and
appropriate for such a registration. Any Registration Statement prepared
pursuant hereto shall register for resale at least that number of shares of
Common Stock equal to the sum of (i) the maximum number of Registrable
Securities that are Company Shares; and (ii) the maximum number of Registrable
Securities issuable upon exercise of the Warrants without regard to any
limitation on any holder's ability to convert any of the Warrants (such sum, the
"Registrable Amount"). Such Registration Statement shall state that, in
accordance with Rule 416 under the Securities Act, it also covers such
indeterminate number of additional shares of Common Stock ("Shares") as may
become issuable upon exercise of the Warrants (i) resulting from any adjustment
in the applicable price of the Warrants; or (ii) to prevent dilution resulting
from stock splits, stock dividends, recapitalizations, reclassifications,
distributions, consolidations, mergers or similar transactions. If at any time
the Registrable Amount exceeds the total number of Shares so registered, the
Company shall, within ten (10) business days after receipt of a written notice
from the Purchaser, either (i) amend the Registration Statement or Registration
Statements filed by the Company pursuant to this section, if such Registration
Statement has not been declared effective by the Commission at that time, to
register the Registrable Amount of Shares, or (ii) if such Registration
Statement has been declared effective by the Commission at that time, file with
the Commission an additional Registration Statement on Form S-3 or such other
appropriate form, to register the number of Shares by which the Registrable
Amount exceeds the number of Shares already registered. The Company shall use
its best efforts to cause the Registration Statement to be declared effective
not later than one hundred eighty (180) days following the Closing Date (the
"Effectiveness Deadline").
(b) The Company shall use its best efforts to keep each Registration
Statement effective pursuant to Rule 415 at all times until such date as is the
earlier of (i) the date on which all of the Registrable Securities have been
sold; and (ii) the date on which the Registrable Securities (in the opinion of
counsel to the Purchaser) may be immediately sold without restriction (including
without limitation as to volume by each holder thereof) without registration
under the Securities Act (the "Registration Period").
(c) If any offering pursuant to a Registration Statement pursuant to
Section 2 hereof involves an underwritten offering (which may only be with the
consent of the Company), the Purchaser shall have the right to select legal
counsel and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager or
managers shall be reasonably satisfactory to the Company.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of the
Registrable Securities, the Company shall do each of the following:
(a) Prepare and file with the Commission the Registration Statements
required by Section 2 of this Agreement and such amendments (including
post-effective amendments) and supplements to the Registration Statements and
the prospectuses used in connection with the Registration Statements, each in
such form as to which the Purchaser and its counsel shall not have objected, as
may be necessary to keep the Registration current at all times during the
Registration Period, and, during the Registration Period, comply with the
provisions of the Securities Act with respect to the disposition of all of the
Registrable Securities until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Registration Statements;
(b) Furnish to the Purchaser, if the Registrable Securities of the
Purchaser are included in the Registration Statement, and its legal counsel
identified to the Company, promptly after the same is prepared and publicly
distributed, filed with the Commission, or received by the Company, a copy of
the Registration Statement, each preliminary prospectus, each final prospectus,
and all amendments and supplements thereto and such other documents, as the
Purchaser may reasonably request in order to facilitate the disposition of its
Registrable Securities;
(c) As soon as practicable, furnish to the Purchaser and its counsel
copies of any correspondence between the Company and the Commission with respect
to any registration statement or amendment or supplement thereto filed pursuant
to this Agreement;
(d) Use all best efforts to (i) register and qualify the Registrable
Securities covered by the Registration Statement under such other securities or
blue sky laws of such jurisdictions as the Purchaser may request, (ii) prepare
and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof at all times during the
Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions;
(e) List such securities on The OTCBB or Nasdaq Stock Market and all
the other national securities exchanges on which any securities of the Company
are then listed, and file any filings required by The Nasdaq Stock Market and/or
such other exchanges;
(f) As promptly as practicable after becoming aware of such event,
notify the Purchaser of the occurrence of any event of which the Company has
knowledge as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and to use its best efforts to promptly prepare a
supplement or amendment to the Registration Statement or other appropriate
filing with the Commission to correct such untrue statement of omission, and to
deliver a number of copies of such supplement or amendment to the Purchaser as
it may reasonably request;
(g) As promptly as practicable after becoming aware of such event,
notify the Purchaser who holds Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the issuance by
the Commission of any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time, and to use its best
efforts to promptly obtain the withdrawal of such stop order or other suspension
of effectiveness (the occurrence of any of the events described in paragraphs
(f) and (g) of this Section 3 is referred to herein as a "Blackout Event"), and
the Purchaser shall not, during the continuation of a Blackout Event, sell any
Registrable Securities pursuant to a Registration Statement after the Company
has given notice to the Purchaser pursuant to the terms hereof that such
Registration Statement is subject to a Blackout Event;
(h) If the Company has consented to an underwritten offering and such
offering is underwritten, at the request of the Purchaser, to furnish on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to the Purchaser selling Registrable Securities in connection
with such underwriting, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, and (B) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements or other
financial data contained therein), and (ii) a letter dated such date from the
Company's independent public accountants addressed to the underwriters and to
the Purchaser, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five (5) business
days prior to the date of such letter) with respect to such registration as such
underwriters may reasonably request;
(i) Cooperate with the Purchaser to facilitate the timely preparation
and delivery of certificates for the Registrable Securities to be offered
pursuant to the Registration Statement and to enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case may
be, as the Purchaser may reasonably request, and registered in such names as the
Purchaser may request; and, within three (3) business days after a Registration
Statement which includes Registrable Securities is ordered effective by the
Commission, the Company shall deliver, and shall cause legal counsel selected by
the Company to deliver, to the transfer agent for the Registrable Securities
(with copies to the Purchaser) an appropriate instruction and opinion of such
counsel;
(j) Enter into customary agreements (including, in the case of an
underwritten offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(i) make such representations and warranties to the Purchaser and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings;
(ii) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Purchaser and its
representative relating to the Registration and providing for, among other
things, the appointment of such representative as agent for the selling
Purchaser for the purpose of soliciting purchases of Registrable Securities,
which agreement shall be customary in form, substance and scope and shall
contain customary representations, warranties and covenants; and
(iii) deliver such customary documents and certificates as may be
reasonably requested by the Purchaser whose Registrable Securities are being
sold or by the managing underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(k) The Company shall, at the request of the Purchaser, make generally
available to its security holders as soon as practicable, but not later than
ninety (90) days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 under the
Securities Act) covering a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next following the effective date of a
Registration Statement;
(l) The Company shall make available for inspection by (i) the
Purchaser, (ii) any underwriter participating in any disposition pursuant to a
Registration Statement, (iii) one firm of attorneys and one firm of accountants
or other agents retained by the Purchaser, and (iv) one firm of attorneys
retained by all such underwriters (collectively, the "Inspectors") all pertinent
financial and other records, and pertinent corporate documents and properties of
the Company (collective, the "Records"), as shall be reasonably deemed necessary
by each Inspector to enable each Inspector to exercise its due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information which any Inspector may reasonably request for purposes
of such due diligence; provided, however, that each
Inspector shall hold in confidence and shall not make any disclosure (except to
the Inspectors) of any Record or other information which the Company determines
in good faith to be confidential, and of which determination the Inspectors are
so notified, unless (a) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in any Registration Statement, (b)
the release of such Records is ordered pursuant to a subpoena or other order
from a court or government body of competent jurisdiction, or (c) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement. The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and substance satisfactory to the Company)
with the Company with respect thereto, substantially in the form of this Section
3(m). The Purchaser agrees that upon learning that the release of such Records
is ordered pursuant to a subpoena or other order from a court or government body
of competent jurisdiction, it shall give prompt notice to the Company and allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein shall be deemed to limit the Purchaser' ability to
sell Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations; and
(m) The Company shall hold in confidence and not make any disclosure of
information concerning the Purchaser provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company agrees that
it shall, upon learning that disclosure of such information concerning the
Purchaser is sought in or by a court or governmental body of competent
jurisdiction or though other means, give prompt notice to the Purchaser prior to
making such disclosure, and allow the Purchaser, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
4. OBLIGATIONS OF THE PURCHASER. In connection with the registration of the
Registrable Securities, the Purchaser shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required to effect the registration of such Registrable
Securities, and the Purchaser shall execute such documents in connection with
such registration as the Company may reasonably request. At least five (5) days
prior to the first anticipated filing date of the Registration Statement, the
Company shall notify the Purchaser of the information the Company included in
the Registration Statement. The Purchaser shall not, during the continuation of
a Blackout Event, sell any Registrable Securities pursuant to a Registration
Statement after the Company has given notice to the Purchaser pursuant to the
terms hereof that such Registration Statement is subject to a Blackout Event (as
defined in Section 3(g) hereof).
5. EXPENSES OF REGISTRATION. All expenses, other than underwriting
discounts and commissions and other fees and expenses of investment bankers and
other than brokerage commissions, incurred in connection with registrations,
filings or qualifications pursuant to Section 3, but including, without
limitation, all registration, listing, and qualification fees, printing and
accounting fees, and the fees and disbursements of counsel for the Company, and
the fees of one counsel to the Purchaser with respect to each Registration
Statement filed
pursuant hereto, shall be borne by the Company provided, that the expenses of
the Purchaser' counsel shall not exceed US$15,000.
6. INDEMNIFICATION. If any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) The Company will indemnify and hold harmless the Purchaser, each of
its officers, directors, partners and shareholders, and each person, if any, who
controls the Purchaser within the meaning of the Securities Act or the Exchange
Act (each, an "Indemnified Person"), against any losses, claims, damages,
liabilities or expenses (joint or several) incurred (collectively, "Claims") to
which any of them may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state or
foreign securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state or foreign securities law (the matters in foregoing
clauses (i) through (iii) being, collectively, "Violations"). The Company shall,
subject to the provisions of Section 6(b) below, reimburse the Purchaser,
promptly as such expenses are incurred and are due and payable, for any legal
and other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise, including without limitation,
the costs, expenses and disbursements, as and when incurred, of investigating,
preparing or defending any such action, suit, proceeding or investigation
(whether or not in connection with litigation in which the Purchaser is a
party), incurred by it in connection with the investigation or defense of any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a) shall not (i) apply to
any Claim arising out of or based upon a modification which occurs in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of any Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (ii) with respect to any preliminary prospectus, inure to
the benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the final prospectus, as then amended or supplemented, if such final
prospectus was timely made available by the Company pursuant to Section 3(b)
hereof; (iii) be available to the extent that such Claim is based upon a failure
of the Purchaser to deliver or to cause to be delivered the prospectus made
available by the Company, if such prospectus was timely made available by the
Company pursuant to Section 3(b) hereof; or (iv) apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by the Purchaser pursuant to
Section 9. The Purchaser will indemnify the Company and its officers and
directors against any Claims arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing
to the Company, by or on behalf of the Purchaser, expressly for use in
connection with the preparation of the Registration Statement (including any
modifications, amendments or supplements thereto), subject to such limitations
and conditions as are applicable to the Indemnification provided by the Company
in this Section 6; provided, however, that in no event shall any indemnity by
the Purchaser under this Section 6 exceed the amount of the net proceeds
received by the Purchaser in connection with the offering effected through such
Registration Statement.
(b) Promptly after receipt by an Indemnified Person under this Section
6 of notice of the commencement of any action (including any governmental
action), such Indemnified Person shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and to the extent
that the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person,
provided, however, that an Indemnified Person shall have the right to retain its
own counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person and the
indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person and any other party represented by
such counsel in such proceeding. In such event, the Company shall pay for only
one separate legal counsel for the Purchaser, and such legal counsel shall be
selected by the Purchaser. The failure to deliver written notice to an
indemnifying party within a reasonable time after the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person under this Section 6, except to the extent that the
indemnifying party is materially prejudiced in its ability to such action. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as such
expense, loss, damage or liability is incurred and is due and payable.
(c) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Person of an unconditional and irrevocable release from all
liability in respect of such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that any provisions
relating to indemnification or contribution contained in the underwriting
agreements entered into among the Company, the underwriters and the Purchaser in
connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in such underwriting agreements shall be
controlling as to the Registrable Securities included in the public offering;
provided, however, that if, as a result of this Section 6(d), the Purchaser, its
officers, directors, partners, shareholders or any person controlling the
Purchaser is or are held liable with respect to any Claim for which they would
be entitled to indemnification hereunder but for this Section 6(d) in an amount
which exceeds the aggregate proceeds received by the Purchaser from the sale of
Registrable Securities included in a registration pursuant to such underwriting
agreement (the "Excess Liability"), the Company shall reimburse the Purchaser
for such Excess Liability.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying party
is prohibited or limited under applicable law, the indemnifying party agrees to
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the Indemnified Person shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact on which such Claim is based relates to information supplied by
the indemnifying party or by the Indemnified Person, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the forgoing, (a) no contribution
shall be made under circumstances where the payor would not have been liable for
indemnification under the fault standards set forth in Section 6, (b) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation, and (c) contribution by any seller of
Registrable Securities shall be limited in amount to the net proceeds received
by such seller from the sale of such Registrable Securities. The Company and the
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by pro rata allocation (even if the Purchaser
and any other party were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in this Section.
8. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
Purchaser the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the Commission that may at any time permit
the Purchaser to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to the Purchaser so long as it owns Registrable
Securities promptly upon request, (i) a written statement by the Company that it
has complied with the reporting requirements of the Securities Act and the
Exchange Act, (ii) a copy of the most recent annual or periodic report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Purchaser to
sell such securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Purchaser to any transferee of all or any portion
of the principal amount of the Warrants, or the underlying Common Stock held by
the Purchaser (collectively, the "Securities") if: (a) the Purchaser agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment; (b) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee; (c) at or before the time the Company receives the
written notice contemplated by clause (b) of this sentence, the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein; and (d) the transfer of the relevant Securities
complies with the restrictions set forth in Section 4 of the Share Purchase
Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchaser holding two thirds (2/3) of the
outstanding Registrable Securities. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon the Purchaser and the
Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Warrants or
Registrable Securities whenever such person or entity owns of record such
Warrants or Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Warrants or Registrable Securities, the Company shall act
upon the basis of the instructions, notice or election received from the
registered owner of such Warrants or Registrable Securities.
(c) Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the other parties thereunto entitled at the following addresses, or
at such other addresses as a party may designate by ten (10) days advance
written notice to each of the other parties hereto.
COMPANY: China World Trade Corporation
x/x 0000X, 00/X, Xxxxxxx House
000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxx
Xxxx Xxxx
ATTENTION: Xx. Xxxx Xxx
Tel.: (000) 0000 0000
Fax: (000) 0000 0000
WITH COPIES TO:
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
PURCHASER Powertronic Holdings Limited
x/x #000-0000 Xxxxxx Xxxxx
Xxxxxxxx, X.X.
Xxxxxx X0X 0X0
Attention: Mr. Xxxxx Xxxx
Tel.:(000) 000-0000
email: xxxxxxx@xxx.xxx
WITH COPIES TO:
Heller, Ehrman, White & XxXxxxxxx LLP
Suite 6308 63rd Floor
Xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attention: Xxxxx Xxx, Esq.
Tel.: (852)-2526-6381
Fax.: (852)-2810-6242
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California, except for provisions with respect to
internal corporate matters of the Company which shall be governed by the
corporate laws of the State of Nevada. Each of the parties agrees to the
jurisdiction of the federal courts whose districts encompass any part of the
State of California or the state courts of the California in connection with any
dispute arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
conveniens, to the bringing of any such proceeding in such jurisdictions. This
Agreement may be signed in two or more counterparts, each of which shall be
deemed an original. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such validity or unenforceability shall not affect the
validity or enforceability of
the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. Subject to the provisions of Section 10
hereof, this Agreement may be amended only by an instrument in writing signed by
the party to be charged with enforcement.
(e) This Agreement, together with the Share Purchase Agreement and the
Warrants, constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(f) Subject to the requirements of Section 9 hereof, this Agreement
shall inure for the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The Company acknowledges that any failure by the Company to perform
its obligations under Section 2, or any delay in such performance could result
in direct and indirect damages to the Purchaser, and the Company agrees that, in
addition to any other liability the Company may have by reason of any such
failure or delay, the Company shall be liable for all direct and consequential
damages caused by any such failure or delay. Nothing herein shall limit the
Purchaser' right to pursue any claim seeking such direct or consequential
damages.
[Signature page follows]
IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned.
Dated: December 17, 2002
"COMPANY"
China World Trade Corporation
By: /s/ Xxxx Xxx
-----------------------------------------
Name: Xxxx Xxx
Title: President & CEO
"PURCHASER"
Powertronic Holdings Limited
By: /s/ Xxxxx Xx
-----------------------------------------
Name: Xxxxx Xx
Title: Chairman
