AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit
10.15
AMENDMENT
TO
THIS AMENDMENT TO SECURITIES PURCHASE
AGREEMENT, dated as of January 10, 2011 (the “Amendment”), by and among
Shiner International, Inc., a Nevada corporation, with headquarters located at
19/F, Didu Building, Pearl River Plaza, No. 2 North Longkun Road, Haikou, Hainan
Province, China 570125 (the ”Company”), and the investors
listed on the Schedule of Investors attached hereto (individually, a “Investor” and collectively,
the “Investors”), hereby
amends the Securities Purchase Agreement, dated as of December 28, 2010
(the “Original Agreement”), by and among the
Company and the Investors. (Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Original
Agreement.)
WHEREAS, Section 6 of the
Original Agreement provides certain anti-dilution protections for the Investors
in the event that the Company issues or sells (x) shares of Common Stock or (y)
securities convertible into or exchangeable for shares of Common Stock, or any
options, warrants or other rights to acquire shares of Common Stock at a price
per share that is less than the price per share of Common Stock purchased
pursuant to the Original Agreement (which, for this purpose, shall be determined
using the per Unit price);
WHEREAS, pursuant to the rules
and regulations of the NASDAQ Stock Market, the Company is prohibited from
selling, issuing or potentially issuing common stock (or securities convertible
into or exercisable for common stock) equal to 20% or more of the common stock
outstanding before the issuance of securities in a private placement for less
than the greater of book or market value absent prior shareholder approval;
and
WHEREAS, under Section 6 as
set forth in the Original Agreement, the Company may potentially issue common
stock in contradiction of such rules and regulations, which the Company and the
Investors expressly did not intend;
NOW, THEREFORE, in consideration
of the mutual covenants and agreements contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the Company and each of the Investors agree to amend
Section 6 of the Original Agreement to read in full as follows (new language set
forth in italics):
6. ANTI-DILUTION. If
the Company shall at any time or from time to time (the “New Issue Date”) prior to the
date that is 18 months after the date of this Agreement issue or sell (x) shares
of Common Stock or (y) securities convertible into or exchangeable for shares of
Common Stock, or any options, warrants or other rights to acquire shares of
Common Stock at a price per share (the “New Issue Price”) that is less
than the price per share of Common Stock purchased pursuant to this Agreement
(which, for this purpose, shall be determined using the per Unit
price) (the “Original Issue Price”)
(treating the price per share of Common Stock, in the case of the issuance of
any security convertible or exchangeable or exercisable into Common Stock as
equal to (x) the sum of the price paid for such security convertible,
exchangeable or exercisable into Common Stock plus any additional consideration
payable (without regard to any anti-dilution adjustments) upon the conversion,
exchange or exercise of such security into Common Stock divided by (y) the
number of shares of Common Stock initially underlying such convertible,
exchangeable or exercisable security), then, and in each such case, the Company
shall issue and sell to the Investors that purchased Common Stock issued and
sold pursuant to this Agreement at a price of $0.001 per share, a number of
shares of Common Stock equal to the difference of (i) the number of shares of
Common Stock which the aggregate Original Issue Price paid for the shares of
Common Stock held by such Investor on the New Issue Date would have purchased on
the Closing Date at the New Issue Price, and (ii) the number of shares of Common
Stock held by such Investor on the New Issue Date. For purposes of any
subsequent anti-dilution adjustment for the benefit of the Investors, the
Original Issue Price shall be deemed to be the New Issue Price then in effect
prior to any such subsequent adjustment.
The
Company and the Investors hereby agree that in no event shall the Company issue
such number of securities under this Section 6 as will result in the total
aggregate issuance to the Investors of more than 19.9% of the total securities
outstanding on the date immediately preceding the Closing Date (the "Maximum
Issuance Amount"). In the event that the Company issues additional
securities during the 18 month period set forth in Section 6 that would
otherwise entitle the Investors to receive additional securities under the
Agreement, the Company shall reduce the aggregate number of additional
securities to be issued on a pro rata basis to each Investor, such that the
total aggregate securities issued under the Agreement shall in no event exceed
the Maximum Issuance Amount.
For
purposes of clarification, on the date immediately preceding the Closing Date,
the Company had 24,688,155 shares of Common Stock issued and
outstanding. The Maximum Issuance Amount is therefore 4,912,942
shares. In connection with the Offering, the Company issued 2,608,336
shares of Common Stock and Warrants to purchase an additional 521,664
shares. Therefore, the Company shall not issue securities in excess
of 1,782,942 shares of Common Stock pursuant to Section 6 of the
Agreement.
The
remainder of the Original Agreement is in full force and effect and is
incorporated by reference to this Amendment and the Original Agreement, together
with this Amendment shall be deemed one agreement by and among the parties,
effective as of the date of the Original Agreement.
This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original and all of which shall, when taken together, constitute one
document.
[SIGNATURE PAGE
FOLLOWS]
IN WITNESS WHEREOF, the
undersigned have caused this Amendment to be duly executed as of the 10th day of
January, 2011.
COMPANY:
By:
______________________________
Qingtao Xing
Chief Executive Officer
INVESTORS:
[Name]
__________________________
