WAIVER AND RELEASE
Exhibit
10.2
THIS RELEASE AND WAIVER, dated as of
May 28, 2009 (the “Release”), is hereby
executed by the investor whose name appears on the signature page hereto (the
“Releasor”) in
favor of SkyPeople Fruit Juice Inc., a Florida corporation (the “Company”).
WHEREAS, on February 25, 2008,
the Company entered into a Series B Convertible Preferred Stock Purchase
Agreement (the “Stock
Purchase Agreement”) with the Releasor and one other
investor (collectively, the “Investors”) pursuant
to which the Company issued to the Investors (i) 2,833,333 shares of a newly
designated Series B Convertible Preferred Stock of the Company, par value $0.001
per share (“Series B
Stock”) and (ii) warrants to purchase an aggregate of 7,000,000 shares of
the Company’s Common Stock (the “February 2008
Warrants”), in consideration for a cash payment to the Company in the
aggregate amount of $3,400,000;
WHEREAS, pursuant to the Stock
Purchase Agreement, the Company deposited 2,000,000 shares of Series B Stock
(the “Make Good Escrow
Stock”) into an escrow account which is being held by an escrow agent as
make good shares in the event the Company’s consolidated pre-tax income and
pre-tax income per share, on a fully-diluted basis, for the years ended December
31, 2007, 2008 or 2009, are less than certain target numbers set forth in the
Stock Purchase Agreement;
WHEREAS, in connection with
the Stock Purchase Agreement, on February 26, 2008, the Company entered into a
Registration Rights Agreement with the Investors (the “Registration Rights
Agreement”),
pursuant to which the Company agreed to prepare and file one or more
registration statements to register for resale the shares of the Common Stock of
the Company issuable upon conversion of the Series B Stock and upon exercise of
the February 2008 Warrants;
WHEREAS, under the terms of
the Registration Rights Agreement the Company was required, among other things,
to:
(1) prepare
and file with the Securities and Exchange Commission (the “SEC”) prior to March
26, 2008 an initial registration statement covering the resale of the shares of
the Common Stock of the Company issuable upon conversion of the Series B Stock
and upon exercise of the warrants issued to the Investors under the Stock
Purchase Agreement; and
(2) use its
commercially reasonable best efforts to have an initial registration
statement declared effective by the SEC within 120 days following the filing
date;
WHEREAS, the Company filed
with the SEC the initial registration statement on March 26, 2008. Therefore,
the Company was required to have the registration statement declared effective
by the SEC by July 24, 2008 (within 120 days after the initial filing date of
March 26, 2008). The registration statement was declared effective by the SEC on
February 5, 2009. Therefore, an aggregate of $255,605 in liquidated damages is
due to the Investors pursuant to the Registration Rights Agreement;
WHEREAS, simultaneously with
the execution of this Release, the Company is entering into an Exchange
Agreement with the Investors (the “Exchange Agreement”)
pursuant to which, in partial consideration of the issuance to the Investors of
warrants to purchase the Company’s Common Stock (the “New Warrants”), the
Investors have agreed to execute and deliver this Agreement;
and
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WHEREAS, all capitalized terms
used herein, which are not otherwise defined herein, shall have the meanings
ascribed to them in the Stock Purchase Agreement.
NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the Investor hereby
agrees to and does hereby:
1. Release
and discharge, forever and unconditionally, the Company from all claims and
liabilities for damages, including any and all liquidated damages, penalties and
interest thereon, relating to any breach or breaches of any obligation of the
Company under the Registration Rights Agreement from the date of execution of
such agreement through the date hereof.
2. Irrevocably
waive any right to receive any Make Good Escrow Stock solely as a result of, and
to the extent that, such Make Good Escrow Stock would be deliverable to the
Investors because Pre-Tax Income Per Share for the Company’s fiscal year ending
December 31, 2009 (for purposes of determining whether the Company has achieved
its Target Number for such fiscal year) is reduced as a result of any reduction
in net income available to common stockholders for such fiscal year and an
increase in the weighted average number of shares of Common Stock outstanding
during the period due to the issuance and delivery to the Investors of New
Warrants in exchange for the February 2008 Warrants. Except as and to the extent
waived pursuant to the immediately preceding sentence, the provisions contained
in the Stock Purchase Agreement relating to the Make Good Escrow Stock
(including the provisions relating to the Company’s consolidated Pre-Tax Income
and Required Pre-Tax Income Per Share for the fiscal year ending December 31,
2009) shall remain in full force and effect.
3. Acknowledge
that it has been afforded ample opportunity to review and evaluate this Release
and Waiver prior to the date hereof and that it has been represented and
assisted by counsel for that purpose.
4. Acknowledge
and agree that it is entering into this Release and Waiver freely and
voluntarily, without duress or coercion of any kind, and as an informed and
well-reasoned exercise of its business judgment.
IN
WITNESS WHEREOF, the undersigned Releasor has caused this Release and Waiver to
be duly executed by its authorized officer as of the date first written
above.
RELEASOR: XXXXXX PARTNERS
L.P.
By:
/s/
Xxxxxx Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx Xxxxxx
Title:
Managing
Partner
