SECURITIES EXCHANGE AGREEMENT
SECURITIES EXCHANGE AGREEMENT
This
Securities Exchange Agreement (this “Agreement”) is dated
as of March 18, 2010, between among Sunway Global, Inc., a Nevada corporation
(the “Company”), and each
security holder identified on the signature pages hereto (each, including its
successors and assigns, a “Holder” and
collectively, the “Holders”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), the Company
desires to exchange with each Holder, and each Holder, severally and not
jointly, desires to exchange with the Company, securities of the Company as more
fully described in this Agreement.
WHEREAS,
the Holders currently hold certain warrants as set forth in Schedule A (the
(“Warrants”), that are exercisable for shares of Company Common Stock with
$0.0000001 par value per share (“Common
Stock”).
WHEREAS,
the Holders intend to exchange the Warrants pursuant to this Agreement, for
shares of the Common Stock of the Company.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Holder agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement the following terms
have the meanings set forth in this Section 1.1:
“Closing” means the
closing of the exchange pursuant to Section 2.
“Closing Date” means the day,
when all of the Transaction Documents have been executed and delivered to the
applicable Parties, all Closing Conditions as set forth in Section 2.5 have been
met, and all conditions precedent to (i) the Holders’ obligations to deliver the
Securities to be exchanged and (ii) the Company’s obligations to deliver the
Common Stock have been satisfied or waived.
“Commission” means the
United States Securities and Exchange Commission.
“Company
Counsel” means Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, with an address
at 00 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000
“Principal
Shareholders” shall mean the persons listed on Schedule A of the
Securites Escrow Agreement.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
“Qualified Financing” means an
offering of Company’s equity securities with minimum new proceeds to the Company
of $10 million at a per share price acceptable to the Company and the
Holders.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Securities Escrow
Agreement” means the Securities Escrow Agreement entered into between the
Parties on the date of this Agreement.
“Signing” means the
signing of the Transaction Documents by the Parties and delivery of signed
Transaction Documents to the Parties.
“Trading Day” means a
day on which the principal Trading Market is open for trading.
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE Amex, the Nasdaq Capital Market,
the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.
“Transaction
Documents” means this Agreement and the Securities Escrow Agreement and
all schedules and exhibits thereto.
“Vision” means Vision
Opportunity Master Fund, Ltd. having its principal offices at 00 X 00xx xxxxxx,
0xx
xxxxx, Xxx Xxxx, XX 00000.
ARTICLE II
EXCHANGE
2.1 Terms of Exchange.
Subject to the terms and conditions set forth herein, the Holders agree to
exchange the Warrants for an aggregate of two million (2,000,000) shares of
Restricted Shares (the “Shares”) as set forth in Schedule A, and the
Company agrees to issue the Shares in exchange for the Warrants.
2.2 Signing. The Signing
will occur at the offices of the Company Counsel or such other location as the
parties shall mutually agree.
2.3 Deliveries Upon
Signing. In connection with the Signing:
a) the
Company shall deliver or cause to be delivered to the Holders this Agreement
duly executed by the Company;
b) the
Principal Shareholders shall deliver or cause to be delivered the following to
Company Counsel each Holder the Securities Escrow Agreement duly executed by
each Principal Shareholder and the Company; and
c) the
Holders shall deliver or cause to be delivered to the Company this Agreement
duly executed by the Holder and to Company Counsel the Securities Escrow
Agreement duly executed by the Holder.
2.4 Closing. On the
Closing Date, each Holder shall deliver to the Company or to Company Counsel
their Warrants and the Company shall deliver to each Holder their respective
shares of Common Stock pursuant to the terms of this Agreement. Upon
satisfaction of the conditions set forth herein, the Closing shall occur at the
principal offices of the Company Counsel, or such other location as the parties
shall mutually agree.
2.5 Closing Deliveries.
At the Closing:
a) the
Company shall deliver or cause to be delivered to each Holder a certificate
evidencing the Shares;
b) each
Holder shall deliver or cause to be delivered to Company Counsel such Holder’s
Warrants endorsed such that the Warrants may be cancelled by the Company;
and
c) the
Principal Shareholders shall deliver to the Escrow Agent (as defined in the
Securities Escrow agreement) one million (1,000,000) shares of Company’s Common
Stock held by the Principal Shareholders in accordance with the Securities
Escrow Agreement.
2.6 Closing
Conditions:
a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) all
obligations, covenants and agreements of each Holder required to be performed at
or prior to the Closing Date shall have been performed; and
(ii)
the delivery by each Holder of the items set forth in Section
2.5(b) of this Agreement.
b) The
respective obligations of the Holders hereunder in connection with the Closing
are subject to the following conditions being met:
(i) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed;
(ii) the
delivery by the Company of the items set forth in Sections 2.5(a);
(iii) the
delivery by the Principal Shareholders of the items set forth in Section 2.5(c)
of this Agreement;
(iv) simultaneously
with or prior to the Closing, there shall have occurred a closing of a Qualified
Financing;
(v) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof; and
(vi) from
the date hereof to the Closing Date, trading in the Common Stock shall not have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing), and, at any
time prior to the Closing Date, trading in securities generally as reported by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or other
national or international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in the
reasonable judgment of each Holder, makes it impracticable or inadvisable to
perform the exchange at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and
Warranties of the Company. The
Company hereby makes the following representations and warranties to each
Holder:
(a) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors of the Company or the Company’s stockholders
in connection therewith other than in connection with the Required
Approvals. Each Transaction Document to which it is a party has been
(or upon delivery will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
3.2 Representations and
Warranties of the Holders. Each Holder, for itself and for no
other Holder, hereby represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a) Organization;
Authority. Such Holder is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of the Transaction Documents and performance by such
Holder of the transactions contemplated by the Transaction Documents have been
duly authorized by all necessary corporate or similar action on the part of such
Holder. Each Transaction Document to which it is a party has been
duly executed by such Holder, and when delivered by such Holder in accordance
with the terms hereof, will constitute the valid and legally binding obligation
of such Holder, enforceable against it in accordance with its terms, except: (i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(b) Restricted
Securities. Such Holder understands that the Shares are
“restricted securities” and have not been registered under the Securities Act of
1933 or any applicable state securities law and that certificates
evidencing the Shares may bear a legend to that effect.
ARTICLE
IV.
OTHER AGREEMENTS OF THE
PARTIES
4.1 Registration Rights. The Shares shall
have the same registration rights as the Common Stock underlying the Warrants as
ste forth in Registration Rights Agreement dated June 5, 2007 between the
Company and certain purchasers listed therein.
ARTICLE
V
MISCELLANEOUS
5.1 Successors and
Assigns . This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each Holder (other
than by merger). Any Holder may assign any or all of its rights under
this Agreement to any person to whom such Holder assigns or transfers any
Warrants, provided that such transferee agrees in writing to be bound, with
respect to the transferred Warrants, by the provisions of the Transaction
Documents that apply to the “Holders.”
5.2 Governing
Law . All questions concerning the construction,
validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or Proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or Proceeding is
improper or is an inconvenient venue for such
Proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
either party shall commence an action or Proceeding to enforce any provisions of
the Transaction Documents, then the prevailing party in such action or
Proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or Proceeding.
5.3 WAIVER OF
JURY TRIAL . IN ANY ACTION, SUIT, OR
PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Exchange
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
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SUNWAY
GLOBAL, INC.
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Address for Notice:
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By:
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/s/
Xx Xxx
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Name:
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Title:
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Tel:
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Fax:
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With a
copy to (which shall not constitute notice):
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO SECURITIES EXCHANGE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Exchange Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
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Name
of Holder:
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Vision
Opportunity Master Fund, Ltd.
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Signature
of Authorized Signatory of Holder:
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/s/ Xxxx Xxxxxxxx
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Name
of Authorized Signatory:
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Xxxx
Xxxxxxxx
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Title
of Authorized Signatory:
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Director
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Address
for Notice of Holder:
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00
X 00xx
Xxxxxx, 0xx
xxxxx, Xxx Xxxx, XX 00000
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Address
for Delivery of Shares for Holder:
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Same
as above
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[PURCHASER
SIGNATURE PAGES TO SECURITIES EXCHANGE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Exchange Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
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Name
of Holder:
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Vision
Capital Advantage Fund, LP
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Signature
of Authorized Signatory of Holder:
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/s/ Xxxx Xxxxxxxx
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Name
of Authorized Signatory:
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Xxxx
Xxxxxxxx
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Title
of Authorized Signatory:
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Authorized
Signatory
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Address
for Notice of Holder:
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00
X 00xx
Xxxxxx, 0xx
xxxxx, Xxx Xxxx, XX 00000
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Address
for Delivery of Shares for Holder:
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Same
as above
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Schedule A
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Shares of
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Common
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Warrants to be Exchanged
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Stock to be
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Shareholder
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Warrant A
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Warrant B
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Warrant C
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Warrant D
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Issued
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Vision
Opportunity Master Fund, Ltd.
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4,265,613 | 2,132,806 | 3,864,817 | 1,932,409 | 1,771,870 | |||||||||||||||
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Vision
Capital Advantage Fund, LP
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549,202 | 274,601 | 497,599 | 248,799 | 228,130 | |||||||||||||||
