AGFEED INDUSTRIES, INC. FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
FORM
OF
REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of February __, 2008,
is made by and between AGFEED INDUSTRIES, INC., a Nevada corporation (the
“Company”), and the Investors listed on Exhibit A hereto.
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
February 25, 2008, between the Company and each Investor (the “
Purchase Agreement”).
The
Company and each Investor hereby agree as follows:
Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
NOW,
THEREFORE, the Company and each Investor hereby covenant and agree as
follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Commission”
shall mean the Securities and Exchange Commission, or any other federal agency
at the time administering the Securities Act.
“Effectiveness
Date” shall mean that date which is one hundred eighty (180) days following the
date hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
“Filing
Date” shall mean that date which is ten (10) business days following the date
hereof, and, with respect to any additional Registration Statements which may
be
required pursuant to Section 3(l), the earliest practical date on which the
Company is permitted to file such additional Registration Statement related
to
the Registrable Securities.
“Register,”
“registered” and “registration” each shall refer to a registration effected by
preparing and filing a Registration Statement or statements or similar documents
in compliance with the Securities Act and the declaration or ordering of
effectiveness of such Registration Statement or document by the
Commission.
“Registrable
Securities” shall mean (i) all of the shares of Common Stock issuable upon
conversion in full of the Notes at the initial conversion price (assuming on
the
date of determination the Notes are converted in full without regard to any
conversion limitations therein)and (ii) all Warrant Shares at the initial
exercise price (assuming on the date of determination the Warrants are exercised
in full without regard to any exercise limitations therein). If and when
issuable, Registrable Securities shall also mean (a) all shares of Common Stock
issuable as interest or principal on the Notes assuming all permissible interest
and principal payments are made in shares of Common Stock and the Notes are
held
until maturity, (b) any additional shares of Common Stock issuable in connection
with any anti-dilution or conversion price reset provisions in the Notes or
the
Warrants (in each case, without giving effect to any limitations on conversion
set forth in the Notes or limitations on exercise set forth in the Warrant),
(c)
shares of Common Stock issuable in lieu of cash payments of partial liquidated
damages pursuant to Section 2(b) and (d) any securities issued or
issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the
foregoing.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Securities
Purchase Agreement” means that certain Securities Purchase Agreement by and
among the parties hereto dated as of the date hereof.
2. Automatic
Registration.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of 130% of the Registrable
Securities held by Investors at such time for an offering to be made on a
continuous basis pursuant to Rule 415. Registration Statement required hereunder
shall be on Form S-3. Subject to the terms of this Agreement, the Company shall
use its commercially reasonable efforts to cause the Registration Statement
to
be declared effective under the Securities Act as promptly as possible after
the
filing thereof, but in any event not later than the Effectiveness Date, and
shall use its commercially reasonable efforts to keep the Registration Statement
continuously effective under the Securities Act until the date when all
Registrable Securities covered by the Registration Statement have been sold
or
may be sold without volume restrictions pursuant to Rule 144(b)(1) (without
being subject to the limitations of Rule 144(c)(1)) as determined by the counsel
to the Company pursuant to a written opinion letter to such effect, addressed
and acceptable to the Company’s transfer agent and the Investors (the
“Effectiveness Period”).
(b) If:
(i) a
Registration Statement is not filed on or prior to the Filing Date, or (ii)
the
Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act, within 5 trading
days of the date that the Company is notified (orally or in writing, whichever
is earlier) by the Commission that a Registration Statement will not be
“reviewed,” or is not subject to further review, or (iii) prior to the date when
such Registration Statement is first declared effective by the Commission,
the
Company fails to file a pre-effective amendment and otherwise respond in writing
to comments made by the Commission in respect of such Registration Statement
within 15 trading days after the receipt of comments by or notice from the
Commission that such amendment is required in order for a Registration Statement
to be declared effective, or (iv) a Registration Statement filed or required
to
be filed hereunder is not declared effective by the Commission on or before
the
Effectiveness Date as a result of the failure of the Company to meet its
obligations with respect to such filing as provided for herein, or (v) after
a
Registration Statement is first declared effective by the Commission, it ceases
for any reason to remain continuously effective as to the Registrable Securities
held by the Investors, or the Investors are not permitted to utilize the
Prospectus therein to resell such Registrable Securities, for in any such case
15 consecutive trading days but no more than an aggregate of 25 trading days
during any 12-month period (which need not be consecutive trading days) (any
such failure or breach being referred to as an “Event,” and for purposes of
clause (i) or (iv) the date on which such Event occurs, or for purposes of
clause (ii) the date on which such 5 trading day period is exceeded, or for
purposes of clause (iii) the date which such 15 trading day period is exceeded,
or for purposes of clause (v) the date on which such 15- or 25-day period,
as
applicable, is exceeded being referred to as “Event Date”), then: (x) on the
first Event Date to occur the Company shall pay to such Investor an amount
in
cash, as liquidated damages and not as a penalty, equal to 2.0% of the aggregate
purchase price paid by such Investor pursuant to the Securities Purchase
Agreement for any Registrable Securities then held by such Investor for which
such Investor has not received liquidated damages pursuant to Section 2(c)
below; and (y) on each anniversary of such Event Date (if the applicable Event,
or any subsequent Event, shall not have been cured by such date) until all
Event(s) are cured, the Company shall pay to such Investor an amount in cash,
as
liquidated damages and not as a penalty, equal to 2.0% of the aggregate purchase
price paid by such Investor pursuant to the Securities Purchase Agreement for
any Registrable Securities then held by such Investor for which such Investor
has not received liquidated damages pursuant to Section 2(c) below. If the
Company fails to pay any 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 15% per annum (or such lesser maximum amount that is permitted
to
be paid by applicable law) to the Investor, accruing daily from the date such
liquidated damages are due until such amounts, plus all such interest thereon,
are paid in full. The liquidated damages pursuant to the terms hereof shall
apply on a daily pro-rata basis for any portion of a year prior to the cure
of
an Event.
(c) Notwithstanding
any other provision of this Section 2, if the Commission determines that
the number of securities that the Company may register on the Registration
Statement pursuant to Rule 415 is limited such that the shares so registered
thereunder shall exclude any Registrable Securities held by the Investor, then
the Company shall promptly so advise the Investors and the Company shall use
commercially reasonable efforts to effect the registration of any Registrable
Securities not so included on the Registration Statement as a result thereof
as
soon as is legally possible to do so. In such event, the Company shall pay
to
the Investors liquidated damages as set forth in Section 2(b) hereof with
respect to any Registrable Securities then held by any Investor that were
not registered by the Effectiveness Date.
(d) The
parties acknowledge and agree that (i) the maximum amount of damages that the
Company shall be obligated to pay all Investors for any and all breaches of
this
Section 2 is the amount of liquidated damages set forth in Section 2(b) or
2(c),
and (ii) such liquidated damages shall be the sole remedy available to Investors
for any breach of this Agreement, provided that nothing in this Section 2(d)
shall preclude any Investor from seeking injunctive relief, including specific
performance of its rights under this Section 2.
3. Registration
Procedures.
If and
whenever the Company is required by the provisions of Section 2 hereof to use
its commercially reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare
and file with the Commission the Registration Statement with respect to such
securities and use its reasonable best efforts to cause such Registration
Statement to become effective in an expeditious manner;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep such Registration Statement continuously effective during
the
Effectiveness Period and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
Registration Statement in accordance with the intended method of disposition
set
forth in such Registration Statement for such period;
(c) furnish
to each seller of Registrable Securities and to each underwriter such number
of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the intended disposition of the Registrable Securities
covered by such Registration Statement;
(d) use
its
commercially reasonable efforts (i) to register or qualify the Registrable
Securities covered by such Registration Statement under the securities or “blue
sky” laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter,
reasonably shall request, (ii) to prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements, and take
such
other actions, as may be necessary to maintain such registration and
qualification in effect at all times for the period of distribution contemplated
thereby and (iii) to take such further action as may be necessary or advisable
to enable the disposition of the Registrable Securities in such jurisdictions,
provided, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in
any
such jurisdiction;
(e) use
its
commercially reasonable efforts to list the Registrable Securities covered
by
such Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately
notify each seller of Registrable Securities and each underwriter under such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event
of which the Company has knowledge as a result of which the prospectus contained
in such Registration Statement, as then in effect, includes any 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 light
of
the circumstances then existing and promptly amend or supplement such
Registration Statement to correct any such untrue statement or
omission;
(g) promptly
notify each seller of Registrable Securities of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
or
the initiation of any proceedings for that purpose and make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
time;
(h) if
the
offering is an underwritten offering, enter into a written agreement with the
managing underwriter selected in the, manner herein provided in such form and
containing such provisions as are usual and customary in the securities business
for such an arrangement between such underwriter and companies of the Company’s
size and investment stature, including, without limitation, customary
indemnification and contribution provisions;
(i) if
the
offering is an underwritten offering, at the request of any seller of
Registrable Securities, use its commercially reasonable efforts to furnish
to
such seller on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (i) a copy of an opinion
dated such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, stating that such Registration
Statement has become effective under the Securities Act and that (A) to the
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, (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 or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters; and (ii) a copy of a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, 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 business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(j) take
all
actions reasonably necessary to facilitate the timely preparation and delivery
of certificates (not bearing any legend restricting the sale or transfer of
such
securities) representing the Registrable Securities to be sold pursuant to
the
Registration Statement and to enable such certificates to be in such
denominations and registered in such names as the Investor or any underwriters
may reasonably request;
(k) take
all
other reasonable actions necessary to expedite and facilitate the registration
of the Registrable Securities pursuant to the Registration Statement;
and
(l) if
during
the Effectiveness Period, the number of Registrable Securities at any time
exceeds 100% of the number of shares of Common Stock then registered on a
Registration Statement, then the Company shall file as soon as reasonably
practicable, but in any case prior to the applicable Filing Date, an additional
Registration Statement covering the resale by the Investor of not less than
the
number of such Registrable Securities.
4. Obligations
of Investors.
Each
Investor shall furnish to the Company such information regarding such Investor,
the number of Registrable Securities owned and proposed to be sold by it, the
intended method of disposition of such securities and any other information
as
shall be required to effect the registration of the Registrable Securities,
and
cooperate with the Company in preparing the Registration Statement and in
complying with the requirements of the Securities Act.
5. Expenses.
(a) All
expenses incurred by the Company in complying with Sections 2 and 3 including,
without limitation, all registration and filing fees (including the fees of
the
Securities and Exchange Commission and any other regulatory body with which
the
Company is required to file), printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or “blue sky” laws, fees of transfer agents and registrars and fees
and disbursements of one counsel for the holders of Registrable Securities,
not
to exceed $5,000, but excluding any Selling Expenses, are called “Registration
Expenses.” All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities are called “Selling Expenses.”
(b) The
Company will pay all Registration Expenses in connection with any Registration
Statement filed hereunder, and the Selling Expenses in connection with each
such
Registration Statement shall be borne by the participating sellers in proportion
to the number of Registrable Securities sold by each or as they may otherwise
agree.
6. Indemnification
and Contribution.
(a) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to the terms of this Agreement, the Company will
indemnify and hold harmless and pay and reimburse, each seller of such
Registrable Securities thereunder, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such seller
or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter 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 any Registration Statement
under which such Registrable Securities were registered under the Securities
Act
pursuant hereto or any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, 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,
or any violation or alleged violation of the Securities Act or any state
securities or blue sky laws and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, that the Company will
not be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon the Company’s reliance on an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use
in
such Registration Statement or prospectus.
(b)
In
the event of a registration of any of the Registrable Securities under the
Securities Act pursuant hereto each seller of such Registrable Securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning
of the
Securities Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person
who
controls any underwriter within the meaning of the Securities Act, against
all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter 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
reliance on any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto or, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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, and will reimburse
the
Company and each such officer, director, underwriter, and controlling person
for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, that such seller will be liable hereunder in any such case if and
only
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 reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by
such
seller specifically for use in such Registration Statement or prospectus,
and
provided, that the liability of each seller hereunder shall be limited to
the
proceeds received by such seller from the sale of Registrable Securities
covered
by such Registration Statement. Notwithstanding the foregoing, the indemnity
provided in this Section 6(b) shall not apply to amounts paid in settlement
of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of such indemnified party and provided further,
that the Company shall not be liable in any such case to the extent that
any
such loss, claim, damage or liability (or action in respect thereof) arises
out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission in such Registration Statement, which untrue statement
or
alleged untrue statement or omission or alleged omission is completely corrected
in an amendment or supplement to the Registration Statement and the undersigned
indemnitees thereafter fail to deliver or cause to be delivered such
Registration Statement as so amended or supplemented prior to or concurrently
with the sale of the Registrable Securities to the person asserting such
loss,
claim, damage or liability (or actions in respect thereof) or expense after
the
Company has furnished the undersigned with the same.
(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to such indemnified party other
than under this Section 6 and shall only relieve it from any liability which
it
may have to such indemnified party under this Section 6 if and to the extent
the
indemnifying party is materially prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of Liaison with counsel so selected, provided
that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
based upon written advise of its counsel that there may be reasonable defenses
available to it which are different from or additional to those available to
the
indemnifying party or if the interests of the indemnified party reasonably
may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.
(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
6
but it 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 this Section 6 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, and in each such case, the Company and such holder will contribute
to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the Registration
Statement bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; provided, that, in any such case, (A) no such holder will be required
to contribute any amount in excess of the public offering price of all such
Registrable Securities offered by it pursuant to such Registration Statement
and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 12 (f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
7. Changes
in Capital Stock.
If, and
as often as, there is any change in the capital stock of the Company by way
of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that
the
rights and privileges granted hereby shall continue as so changed.
8. Representations
and Warranties of the Company.
The
Company represents and warrants to the Investors as follows:
(a) The
execution, delivery and performance of this Agreement by the Company have been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Articles of Incorporation or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties
or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets
of
the Company or its subsidiaries.
(b) This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency
or
other laws affecting the rights of creditors generally and to general equitable
principles and the availability of specific performance.
9. Assignment
of Registration Rights.
The
rights to have the Company register Registrable Securities pursuant to this
Agreement may be assigned by the Investor to transferees or assignees of such
securities; provided, that the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned. The term “Investor” as used in this
Agreement shall include such permitted assigns.
10. Rule
144 Requirements.
The
Company agrees to:
(a) make
and
keep current public information about the Company available, as those terms
are
understood and defined in Rule 144;
(b) use
its
commercially reasonable efforts to 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 (at any time after it has become subject to such reporting
requirements); and
(c) furnish
to any holder of Registrable Securities upon request (i) a written statement
by
the Company as to its compliance with the reporting requirements of Rule 144
and
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
11. Termination.
All of
the Company’s obligations to register Registrable Shares under Sections 2 and 3
hereto shall terminate upon the date on which the Investor holds no Registrable
Securities or all of the Registrable Securities are eligible for sale under
Rule
144(b)(1) (without being subject to the limitations of Rule
144(c)(1)).
12. Miscellaneous.
(a) All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including without limitation
transferees of any Registrable Securities), whether so expressed or
not.
(b) All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by telecopier, addressed (i) if to
the
Company, at AgFeed Industries, Inc., 0000 Xxxx Xxx Xxxxxx, Xxxxxxxx and
Technical Development Zone, Xxx Xxxxx City, Jiangxi, Province, China 330013,
Attn: Attn: Xx. Xxxxxxx Xxxxx, CEO, phone 00-0000-0000000, facsimile
86-20¬87785878; and (ii) if to any holder of Registrable Securities, to it at
such address as may have been furnished to the Company in writing by such
holder; or, in any case, at such other address or addresses as shall have been
furnished, in writing to the Company (in the case of a holder of Registrable
Securities) or to the holders of Registrable Securities (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This
Agreement shall be governed by and construed under the laws of the State of
New
York as applied to agreements among New York residents entered into and to
be
performed entirely within New York. The Company (1) agrees that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in New York State Supreme Court, County of New York,
or
in the United States District Court for the Southern District of New York,
(2)
waives any objection which the Company may have now or hereafter to the venue
of
any such suit, action or proceeding, and (3) irrevocably consents to the
jurisdiction of the New York State Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. The Company further agrees to accept and acknowledge
service of any and all process which may be served in any such suit, action
or
proceeding in the New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York and agrees
that service of process upon the Company mailed by certified mail to the
Company’s address shall be deemed in every respect effective service of process
upon the Company, in any such suit, action or proceeding. THE PARTIES HERETO
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT
CONTEMPLATED HEREBY.
(d) In
the
event of a breach by the Company or by the Investors of any of their obligations
under this Agreement, the Investors 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 the Investors
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.
(e) This
Agreement may not be amended or modified without the written consent of the
Company and the holder of a majority of the Registrable Securities.
(f) 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. No waiver shall be effective unless and until it is in writing
and signed by the party granting the waiver.
(g) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement bearing
the signature of the party so delivering this Agreement.
(h) If
any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach
only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement
shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
(i) This
Agreement constitutes the entire contract among the Company and the Investors
relative to the subject matter hereof and supersedes in its entirety any and
all
prior agreements, understandings and discussions with respect
thereto.
(j) The
headings of the sections of this Agreement are for convenience and shall not
by
themselves determine the interpretation of this Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
|
COMPANY
|
||
|
By:
|
||
|
Name:
Li Songyan
|
||
|
Title:
Chairman
|
||
|
INVESTOR
|
||
|
APOLLO
ASIA OPPORTUNITY MASTER
|
||
|
FUND,
L.P.
|
||
|
By:
Apollo Asia Management, L.P.
|
||
|
By:
Apollo Asia management GP, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
INVESTOR:
|
||
|
JABCAP
MULTI-STRATEGY MASTER
|
||
|
FUND
LIMITED
|
||
|
By:
J-Invest Limited
|
||
|
Name:
|
||
|
Title:
|
||
|
INVESTOR:
|
||
|
J-INVEST
LTD.
|
||
|
Name:
|
||
|
Title:
|
||
|
INVESTOR:
|
|
|
DEUTSCHE
BANK AG LONDON
|
|
|
Name:
|
|
|
Title:
|
