ADVANCED BATTERY TECHNOLOGIES, INC.
Exhibit 10-b
00 Xxxx
00xx
Xxxxxx
Xxxxx
00X
Xxx Xxxx,
Xxx Xxxx 00000
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June
16, 2009
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Cranshire
Capital, LP
Iroquois
Master Fund Ltd.
Xxxxxx
Bay Fund XX
Xxxxxx
Bay Overseas Fund, Ltd.
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Re:
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Letter of
Understanding Regarding Series E and Series F 0% Convertible Preferred
Stock of Advanced Battery Technologies,
Inc.
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Dear
above-referenced Investors:
Reference is made to that certain
Securities Purchase Agreement, dated as of May 27, 2009 (“May SPA”), the
Certificate of Designation of Preferences, Rights and Limitations (“May CD”) of the
Series E 0% Convertible Preferred Stock issued thereunder (the “Series E”), the
Registration Rights Agreement, dated May 27, 2009 (“May RRA”), the
Securities Purchase Agreement, dated June 12, 2009 (“June SPA”), the
Certificate of Designation of Preferences, Rights and Limitation (“June CD” and
collectively with the May CD, the “CDs”) of the Series F
0% Convertible Preferred Stock issued thereunder (the “Series F”) and the
Registration Rights Agreement, dated June 12, 2009 (“June
RRA”). Please confirm your agreement and understanding as to
the following:
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1.
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Schedule
3.1(g) is hereby amended to include therein the issuance of the Series E
along with the common stock purchase warrants issued under the May SPA and
new Schedule
3.1(v) is added to disclose the existence of the May RRA and new
Schedule
3.1(ff) is added to disclose the pari passu status of
the Series E and Series F.
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2.
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Upon
any Liquidation (as defined and used in Section 5 of the CDs) or
redemption of the Series E and Series F pursuant to Section 8 of the CDs,
the rights of the holders of the Series E and Series F shall be pari passu to
each other in all respects and any distributions or payments made
thereunder shall be pro-rata in proportion to each holders aggregate
amount of Series E and Series F then held by such holder in relation to
the aggregate amount of Series E and Series F held by all
holders.
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3.
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The
prohibition on filing another registration statement under Section 6(b) of
the May RRA is hereby waived solely as it relates to the registration
rights granted under the June RRA and the Registrable Securities (as
defined under the June RRA) under the June RRA shall be included on the
same Registration Statement filed pursuant to the May RRA. The
rights of the Holders (as defined in the May RRA and June RRA,
respectively) under the May RRA and June RRA shall be pari passu in all
respects pro-rata in proportion to each Holders aggregate amount of
Registrable Securities originally held by such Holder and all Registrable
Securities originally issued pursuant to the May SPA and June SPA,
including but not limited any cutbacks to the number of Registrable
Securities to be included in any Registration Statement on account of SEC
Guidance (as defined under the May RRA and June RRA) or
otherwise.
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This letter agreement may be executed
in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
All
questions concerning the construction, validity, enforcement and interpretation
of this letter agreement shall be determined in accordance with the provisions
of the June SPA.
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Sincerely,
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By: /s/
Zhiguo Fu
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Name: Zhiguo
Fu
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Title:
Chairman, Chief Executive
Officer
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Accepted
and Agreed:
Name of
Purchaser: __________________
Signature
of Purchaser: /s/
Name of
Signatory: __________________
Title of
Signatory: ________________
