STOCKHOLDERS AGREEMENT
Exhibit 4.2
THIS STOCKHOLDERS AGREEMENT
(this “Agreement”) is entered into
and effective as of February 5, 2009, by and among (i) SUNWIN INTERNATIONAL
NEUTRACEUTICALS, INC., a Nevada corporation (the “Company”), (ii) XXXXXXX XXXXX
(“Chairman Zhang”),
(iii) DONGDON LIN (“Xx.
Xxx”), XXXXXXXX XX (“Li”), XXXXXXX XXXXX (“X. Xxxxx”), XIANGSHENG KONG
(“Kong”), XXXXXXX XXXX
(“Chai”), XXXXXXX XXXXX
(“X. Xxxxx”), FANJUN WU
(“Wu”) and
(iv) WILD FLAVORS, INC., a Delaware corporation (“Wild”).
RECITALS
WHEREAS,
the Company desires to have Wild acquire an interest in the Company’s
stock.
WHEREAS,
Chairman Zhang, Xx. Xxx, Li, X. Xxxxx, Kong, Chai, X. Xxxxx, and Wu (collectively
referred to as the “Existing
Sunwin Shareholders”) directly and
indirectly own or control approximately 34.12% of the voting securities of the
Company prior to the sale of shares to Wild pursuant to the Securities Purchase
Agreement (the “Purchase
Agreement”) dated as of February 5, 2009.
WHEREAS,
Wild and the Company have therefore entered into the Purchase Agreement pursuant
to which, among other things, the Company sells to Wild, and Wild purchases from
the Company, a certain amount of shares of common stock, par value $0.001 per
share (the “Common
Stock”), of the Company.
WHEREAS,
it is a condition to the transactions contemplated by the Purchase Agreement
that this Agreement be executed on the terms and conditions as provided
herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
1. Board of
Directors.
(a) While
this Agreement is in effect, Wild and the Existing Sunwin Shareholders agree to
vote or cause to be voted all of the voting securities over they have direct or
indirect voting control, whether of record or through beneficial ownership or
otherwise, and shall take all other necessary or desirable actions within their
control, at a meeting of the Company’s stockholders to be called and held
following the date hereof (including any adjournment or postponement thereof),
at any other meeting of the Company’s shareholders, and in connection with every
action or approval by written consent of the Company, and the Company shall take
all necessary and desirable actions within its control (including, without
limitation, calling special board and stockholder meetings) and to not take any
actions contrary to the intent of this Agreement, so that:
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(i) the
authorized number of directors on the Company’s board of directors (the “Board”) shall equal five
directors;
(ii) two
representatives designated by Wild (the “Wild Directors”) be elected to
the Board;
(iii) three
representatives designated by Existing Sunwin Shareholders (the
“Sunwin Directors”) be
elected to the Board;
(iv) any
of the directors designated and elected pursuant to Section 1(a)(ii) and (iii)
above (the “Designated
Directors”) be re-elected and continue to serve on the Board throughout
the term of this Agreement and may only be removed from the Board (with or
without cause) upon the written request of the party or parties, as applicable,
that designated the respective Designated Director; and
(v) in
the event that any of the Designated Directors for any reason ceases to serve as
a member of the Board during his or her term of office, the resulting vacancy on
the Board be filled by a representative designated by the party or parties, as
applicable that designated the parting Designated Director.
(b) Wild
and the Existing Sunwin Shareholders will take all necessary and reasonable
steps to cause the appointment and election of the Wild Directors and the Sunwin
Directors within 30 days of the date of this Agreement.
(c) The
Company shall pay all out-of-pocket expenses incurred by each of the Wild
Directors and Sunwin Directors in connection with attending regular and special
meetings of the Board and any committee thereof.
(d) If
the parties entitled to designate a representative fail to fill a directorship
pursuant to the terms of this Section 1, the election of a person to such
directorship shall be accomplished in accordance with the Company’s bylaws and
applicable law; provided that the
parties shall take all necessary actions to remove such individual if the party
or parties which failed (and are otherwise entitled) to designate such a
representative so directs.
2. Term of
Agreement. This Agreement shall terminate and be of no further
force and effect upon the date that Wild ceases to own a minimum of 4,000,000
shares of Common Stock of the Company.
3. Amendment and
Waiver. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement shall be effective
against the parties hereto unless such modification, amendment or waiver is
approved in writing by each of the parties. The failure of any party
to enforce any of the provisions of this Agreement shall in no way be construed
as a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
4. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any
provision
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of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
5. Entire
Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
6. Counterparts. This
Agreement may be executed in separate counterparts each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
7. Remedies. Wild
shall be entitled to enforce its rights under this Agreement specifically to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that Wild may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this
Agreement.
8. Notices. Any
notice provided for in connection with this Agreement shall be in writing and
shall be either personally delivered, mailed first class mail (postage prepaid),
transmitted via facsimile or sent by reputable overnight courier service
(charges prepaid) to the addresses or facsimile numbers set forth
below:
If to the Company or
Chairman Zhang:
Attention:
Xxxxxxxx Xxx, CEO
0
Xxxxxxxxx Xxxxxx
Xxxx,
Xxxxxxxx, Xxxxx 000000
Telecopy
No. (00)000-0000000
With
copies to:
Xxxxx
Xxxxxxxxx, Esq.
Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
Telecopy
No. 561.362.9612
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If to
Wild:
Wild
Flavors, Inc.
Attention:
Xxxxx Xxxxx
0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Telecopy
No. 859.342.3607
With
copies to:
Xxxxx
Xxxxx Xxxx LLC
Attention:
Xxxxx X. Xxxxxx, Esq.
000 Xxxx
0xx
Xxxxxx
Xxxxx
0000
Xxxxxxxxxx,
Xxxx 00000
Telecopy
No. 513.651.6981
Notices
will be deemed to have been given hereunder when delivered personally, three (3)
days after deposit in the U.S. mail, upon transmittal via facsimile and one (1)
day after deposit with a reputable overnight courier service.
9. Governing Law, Forum and
Venue. This Agreement shall be deemed to be a contract made
under the laws of the State of Nevada. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
Southern District of Ohio or the state courts of the Commonwealth of Kentucky
sitting in the County of Kenton in connection with any dispute arising in
connection with or under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
10. Waiver of Jury
Trial. Each of the parties hereto hereby irrevocably waives
any and all right to trial by jury of any claim or cause of action in any legal
proceeding arising out of or related to this Agreement or the transactions or
events contemplated hereby or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party hereto. The
parties hereto each agree that any and all such claims and causes of action
shall be tried by a court trial without a jury. Each of the parties
hereto further waives any right to seek to consolidate any such legal proceeding
in which a jury trial has been waived with any other legal proceeding in which a
jury trial cannot or has not been waived.
11. Descriptive
Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
[Signature page follows
immediately.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement as
of the day and year first above written.
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/s/
Fanjun
Wu
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By: /s/ Xxxxxxxx
Xxx
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Fanjun
Wu
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Name:
Dondong Lin
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Its:
Chief Executive Officer
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/s/
Xingyuan
Li
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Xingyuan
Li
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/s/
Xxxxxxxx Xxx
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/s/
Xxxxxxx
Xxxxx
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XX.
XXXXXXXX XXX
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Xxxxxxx
Xxxxx
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| /s/ Xxxxxxx Xxxxx | ||
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/s/
Xiangsheng
Kong
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XX.
XXXXXXX XXXXX
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Xiangsheng
Kong
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/s/
Xxxxxxx
Xxxx
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Xxxxxxx
Xxxx
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WILD
FLAVORS, INC.
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By: /s/ Xxxxx
Xxxxx
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Name:
Xxxxx Xxxxx
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Its:
Chief Operating Officer
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