INVESTOR RIGHTS AGREEMENT dated as of December 22, 2009 between TIANWEI NEW ENERGY HOLDINGS CO., LTD. and HOKU SCIENTIFIC, INC.
Exhibit
D
dated as
of
December
22, 2009
between
and
HOKU
SCIENTIFIC, INC.
TABLE
OF CONTENTS
Page
|
ARTICLE 1
Definitions
|
1
|
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Section 1.01. Definitions
|
1
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Section 1.02. Other
Capitalized Terms.
|
5
|
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Section 1.03. Other
Definitional and Interpretative Provisions
|
5
|
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Section 1.04. Effectiveness
of this Agreement
|
5
|
|
ARTICLE 2 Registration Rights
|
6
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Section 2.01. Shelf
Registration Statement
|
6
|
|
Section 2.02. Demand
Reistration
|
9
|
|
Section 2.03. Shelf
Take-Downs
|
9
|
|
Section 2.04. Selection
Of Underwriters
|
9
|
|
Section 2.05. Piggyback
Registration
|
9
|
|
Section 2.06. Registration
Procedures
|
11
|
|
Section 2.07. Information
Supplied
|
15
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Section 2.08. Expenses
|
15
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Section 2.09. Indemnification
|
15
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|
Section 2.10. Selection of
Counsel
|
19
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Section 2.11. No
Inconsistent Agreements; No Free Writing Prospectus
|
19
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Section 2.12. Termination of
Registration Rights
|
19
|
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ARTICLE 3 Transfer restrictions; board
Representation
|
20
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Section 3.01. Transfer
Restrictions
|
20
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Section 3.02. Board
Representation
|
20
|
|
ARTICLE 4
Miscellaneous
|
20
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Section 4.01. Notices
|
20
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Section 4.02.
Amendments and Waivers
|
21
|
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Section 4.03. Expenses
|
22
|
|
Section 4.04. Successors and
Assigns; Assignment
|
22
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Section 4.05. No Third Party
Beneficiaries
|
22
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Section 4.06. Governing
Law
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22
|
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Section 4.07. Jurisdiction
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22
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Section 4.08. WAIVER OF JURY
TRIAL
|
23
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Section 4.09. Counterparts;
Effectiveness
|
23
|
|
Section 4.10. Entire
Agreement
|
23
|
|
Section 4.11. Severability
|
23
|
|
Section 4.12. Specific
Performance
|
23
|
i
INVESTOR
RIGHTS AGREEMENT (this “Agreement”) dated as of
December 22, 2009 between Tianwei New Energy Holdings Co., Ltd., a corporation
organized under the laws of the People’s Republic of China (“Investor”) and Hoku
Scientific, Inc., a Delaware corporation (the “Company”).
W
I T N E S S E T H:
WHEREAS,
the Company and Investor have entered into a Securities Purchase Agreement dated
as of September 28, 2009 (the “Securities Purchase
Agreement”), pursuant to which Investor shall have acquired (i)
33,379,287 newly-issued shares of Common Stock, par value $0.001 per share, of
the Company (all such shares purchased by Investor or its permitted assignees,
collectively, the “Purchased
Shares”) and (ii) warrants for the purchase of 10,000,000 shares of
Common Stock (all such warrants purchased by Investor or its permitted
assignees, collectively, the “Purchased
Warrants”).
WHEREAS,
the parties hereto desire to enter into this Agreement in order to enter into
certain arrangements relating to the Company, the Purchased Shares and the
shares of Common Stock deliverable upon exercise of the Purchased Warrants (the
“Warrant
Shares”).
NOW,
THEREFORE, in consideration of the foregoing premises and the representations,
warranties, covenants and agreements set forth herein, as well as other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and accepted, and intending to be legally bound hereby, Investor
and the Company hereby agree as follows:
ARTICLE
1
Definitions
Section
1.01. Definitions. (a) The
following terms, as used herein, have the following meanings:
“1933 Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“1934 Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“Adverse Disclosure” means
public disclosure of material non-public information, which disclosure in the
good faith judgment of a majority of the Company Board after consultation with
counsel to the Company would have a
material
adverse effect on the ability of the Company to consummate a material
acquisition, disposition or other comparable extraordinary
transaction.
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with such Person. For purposes of the
immediately preceding sentence, the term “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities, by
contract or otherwise.
“Closing Date” has the meaning
ascribed to such term in the Securities Purchase Agreement.
“Common Stock” means the Common
Stock, par value $0.001 per share, of the Company and any securities issued in
respect thereof, or in substitution therefor, in connection with any stock
split, dividend or combination, or any reclassification, recapitalization,
merger, consolidation, exchange or other similar reorganization.
“Equity Securities” means any
and all shares of capital stock or other securities of the Company convertible
into, or exchangeable or exercisable for, such shares, and options, warrants or
other rights to acquire such shares (including the Warrants and the Warrant
Shares).
“Form S-1” means a registration
statement on Form S-1 under the 1933 Act, or any successor form
thereto.
“Form S-3” means a registration
statement on Form S-3 (other than on Form S-3ASR) under the 1933 Act, or any
successor form thereto.
“Form S-3ASR” means an
“automatic shelf” registration statement on Form S-3 filed by a Well-Known
Seasoned Issuer.
“Form S-4” means a registration
statement on Form S-4 under the 1933 Act, or any successor form
thereto.
“Form S-8” means a registration
statement on Form S-8 under the 1933 Act, or any successor form
thereto.
“Holder” means Investor and any
of its transferees, assignees and successors that beneficially owns any
Registrable Securities.
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“incur” means, directly or
indirectly, to incur, refinance, create, assume, guarantee or otherwise become
liable.
“Issuer Free Writing
Prospectus” shall have the meaning set forth in Rule 433 under the 1933
Act.
“NASD” means the National
Association of Securities Dealers.
“NASDAQ” means The Nasdaq Stock
Market, or any successor thereto.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization.
“Prospectus” means the
prospectus included in any Registration Statement, including any preliminary
prospectus, any final prospectus and any such prospectus as amended or
supplemented by any prospectus supplement, including any such prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all materials incorporated by reference
therein.
“Registrable Securities” means
(i) 30% of the Purchased Shares (which may be held by one or more, or any
Holder(s)), (ii) the Warrant Shares held by any Holder or issuable upon the
exercise of Warrants held by any Holder and (iii) any capital stock or
other securities which may be issued, converted, exchanged or distributed in
respect thereof, or in substitution therefor, in connection with any stock
split, dividend or combination, or any recapitalization, reclassification,
merger, consolidation, exchange or other similar reorganization with respect to
that portion of the Purchased Shares deemed Registrable Securities hereunder or
the Warrant Shares, as the case may be. As to any particular
Registrable Securities, once issued, such Registrable Securities shall cease to
be Registrable Securities when (A) a Registration Statement with respect to
the sale by the Holder of such securities shall have become effective under the
1933 Act and such securities shall have been disposed of in accordance with such
registration statement, (B) such securities shall have been distributed to
the public pursuant to Rule 144, (C) such securities shall have become
eligible for sale by the Holder thereof pursuant to the last sentence of Rule
144(b)(1)(i), or (D)such securities shall have ceased to be
outstanding. For purposes of this Agreement, any required calculation
of the amount of, or percentage of, Registrable Securities shall be based on the
number of shares of Common Stock which are Registrable Securities, including
shares issuable upon the conversion, exchange or exercise of any security
convertible, exchangeable or exercisable into Common Stock (including the
Purchased Warrants).
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“Registration Expenses” means
any and all expenses incident to performance of or compliance with Article 2,
including (i) all SEC and securities exchange or NASD registration and
filing fees (including, if applicable, the fees and expenses of any “qualified
independent underwriter,” as such term is defined in Section 2720 of the
bylaws of the NASD, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities and any escrow fees), (iii) all printing, messenger
and delivery expenses, (iv) all fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange,
(v) the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits
and/or “cold comfort” letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of counsel selected
pursuant to Section 2.10, (vii) any fees and disbursements of underwriters
customarily paid by the issuers, including liability insurance if the Company so
desires, and (viii) the reasonable expenses incurred by the Company or any
underwriters in connection with any “road show” undertaken pursuant to Section
2.06.
“Registration Statement” means
the registration statements required to be filed hereunder, including (in each
case) the Prospectus, amendments and supplements to such registration statement
or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be incorporated
by reference in such registration statement..
“Rule 144” means Rule 144
under the 1933 Act (or any successor rule).
“Rule 415” means Rule 415 under
the 1933 Act (or any successor rule).
“Rule 424” means Rule 424 under
the 1933 Act (or any successor rule).
“SEC” means the U.S. Securities
and Exchange Commission or any successor thereto.
“Third Party” means any Person
or “group” (as defined in Section 13(d) of the 1934 Act), other than Investor or
any of its Affiliates.
“Underwritten Offering” means
any Marketed Underwritten Offering, Underwritten Shelf Take-Down or other
underwritten offering pursuant to Section 2.02.
“Warrants” means the Purchased
Warrants and any securities issued in respect thereof, or in substitution
therefor, in connection with any stock split,
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dividend
or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization (other than the Warrant
Shares upon exercise thereof).
“Well-Known Seasoned Issuer”
has the meaning set forth in Rule 405 under the 1933 Act.
Section
1.02. Other Capitalized
Terms. Capitalized terms used but not defined herein or in Section
1.01 shall have the meanings given to them in the Securities Purchase
Agreement.
Section
1.03. Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and
“hereunder” and words of like import used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. References to Articles, Sections, Exhibits and Schedules are
to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise
specified. All Exhibits and Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning as defined in
this Agreement. Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”, whether or not
they are in fact followed by those words or words of like
import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form. References to any agreement or contract are to that
agreement or contract as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof; provided that with respect to
any agreement or contract listed on any schedules hereto, all such amendments,
modifications or supplements must also be listed in the appropriate
schedule. References to any Person include the successors and
permitted assigns of that Person. References from or through any date
mean, unless otherwise specified, from and including or through and including,
respectively. References to “law”, “laws” or to a particular statute
or law shall be deemed also to include an and all Applicable
Law. References to “$” and “dollars” are to the currency of the
United States.
Section
1.04. Effectiveness of this
Agreement. This
Agreement shall have effect
as of the Closing unless expressly stated
otherwise. Notwithstanding any other provision to the contrary
in this Agreement, this Agreement shall not take effect until the Closing, and
in the event the Securities Purchase Agreement is terminated, this Agreement
shall be void ab
initio.
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ARTICLE
2
Registration
Rights
Section
2.01. Shelf Registration
Statement. (a) The Company shall:
(i) as
promptly as practicable, but in any event not later than 30 days, after the
Closing Date (the “Filing
Date”), prepare and file with the SEC a “Shelf” Registration Statement
(the “Shelf Registration
Statement”) covering the resale of the Registrable Securities by the
Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders, to be made on a continuous basis pursuant to Rule
415. The Shelf Registration Statement shall be on Form S-3 (except if
the Company is not then eligible to register for resale the Registrable
Securities on Form S−3, in which case such registration shall be on another
appropriate form in accordance herewith, reasonably acceptable to Holders of a
majority of the Registrable Securities), as modified by the Company
as necessary to conform to comments from the SEC;
(ii) use its
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective under the 1933 Act as promptly as possible after the filing thereof,
but in any event prior to the 90th day (or
the 120th day in
the case of a “full review” by the SEC) after the Closing Date (the “Effectiveness
Date”);
(iii) within
two Business Days after the Shelf Registration Statement is declared effective,
file a final Prospectus with the SEC pursuant to Rule 424 and notify the Holders
via facsimile of effectiveness of the Shelf Registration Statement;
(iv) use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective under the 1933 Act until such time as all Registrable Securities
covered by such Registration Statement have been sold, or may be sold without
volume restrictions pursuant to Rule 144 under the 1933 Act or any other rule of
similar effect, as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and acceptable to the Company’s
transfer agent and the affected Holders (the “Effectiveness
Period”);
(v) during
the Effectiveness Period, furnish to each Holder with respect to the Registrable
Securities registered under the Shelf Registration Statement (and to each
underwriter, if any, of such Registrable Securities) such number of copies of
Prospectuses and such other documents as such Holder may reasonably request, in
order to
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facilitate
the public sale or other disposition of all or any of the Registrable Securities
by such Holder;
(vi) during
the Effectiveness Period, notify each holder of Registrable Securities covered
by such Registration Statement at any time when a Prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
and
(vii) file
documents required of the Company for normal Blue Sky clearance in states
specified in writing by any Holder; provided that the Company
shall not be required to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or has not so
consented.
(b) From the
date hereof until the date the Shelf Registration Statement is declared
effective under the 1933 Act, the Company shall not file, nor permit the filing
of, any Registration Statement other than (i) the Shelf Registration Statement
and (ii) a Registration Statement on Form S-8 with respect to the Stock
Plans.
Section
2.02. Demand
Registration. (a) If, on or at any time after the
Effectiveness Date there is no currently effective Shelf Registration Statement,
then at any time thereafter, upon written notice (a “Demand”) from a Holder or
Holders holding at least 50% of the Registrable Securities (collectively, the
“Demand Holder”)
requesting that the Company effect the registration under the 1933 Act of any or
all of the Registrable Securities held by the Demand Holder, which notice shall
specify the amount and intended method or methods of disposition of such
Registrable Securities, including pursuant to a shelf registration statement
utilizing Rule 415 (a “Shelf Registration”), the
Company shall, within five days after receiving the Demand, give written notice
(the “Request Notice”)
of such registration request to all other Holders, except if all the Registrable
Securities are held by a single Holder, no Request Notice shall be required, and
thereupon will, subject to the limitations set forth in Section 2.02(c), as
promptly as possible (and in any event no later than 30 days after the date of
the Demand), file and use its reasonable best efforts to cause to be declared
effective under the 1933 Act, a Registration Statement to effect the
registration under the 1933 Act of (i) such Registrable Securities which the
Company has been so requested to register by the Demand Holder under the Demand
and (ii) the Registrable Securities which the Company has been requested to
register by written request to the Company by the Holders within ten days after
the giving of
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the
Request Notice (which request shall specify the amount and intended method or
methods of disposition of such Registrable Securities), all to the extent
necessary to permit the disposition (in accordance with the intended method(s)
thereof as aforesaid) of the Registrable Securities and such other securities so
to be registered.
(b) A
registration requested pursuant to this Section 2.02 will not be deemed to have
been effected unless: (i) it has been declared effective by the SEC or has
otherwise become effective under the 1933 Act and remains effective for not less
than 180 days, or, if such Registration Statement relates to an underwritten
offering, such longer period as, in the opinion of counsel for the underwriter
or underwriters is required by law for the delivery of a Prospectus in
connection with the sale of Registrable Securities by an underwriter or dealer;
or (ii) it has been filed with the SEC but abandoned or withdrawn at the
request of the Demand Holder prior to effectiveness, other than an abandonment
or withdrawal requested because of: (A) the stock price of the Common Stock
falling 15% or more since the delivery of a request for registration pursuant to
this Section 2.02, (B) a material adverse change in the Company’s and the
Subsidiaries’ financial condition, business, assets, results of operations
financial condition, taken as a whole, or (D) the discovery of materially
adverse, non-public information concerning the Company and the Subsidiaries,
taken as a whole.
(c) Notwithstanding
anything in this Agreement to the contrary:
(i) if the
filing of a Registration Statement in respect of a Demand would require the
Company to make an Adverse Disclosure, the Company may, upon giving prompt
written notice of such action to the Holders, delay the filing of such
Registration Statement for the shortest period of time determined in good faith
by the Company to be necessary for such purpose; provided that the Company
shall not be permitted to do so (A) more than two times during any twenty-four
month period, (B) for a period not exceeding 40 days on any one occasion or (C)
for a period exceeding 60 days in any 12 month period. The Company
shall immediately notify the Holders of the expiration of any period during
which it exercised its rights under this Section 2.02(c)(i);
(ii) the
Company shall not be obligated to file a Registration Statement in respect of a
Demand (A) on more than two occasions or (B) within a period of one (1) month
after the effective date of any other Registration Statement of the Company
demanded pursuant to this Section 2.02;
(iii) a Holder
may elect to withdraw its Registrable Securities from a Demand registration
pursuant to this Section 2.02 at any time, and
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if all
such Holders do so, the Company shall cease its efforts to secure registration;
and
(iv) all
Demand registrations pursuant to this Section 2.02 shall be on Form S−3, except
if the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on another
appropriate form, reasonably acceptable to the Holders of a majority of the
Registrable Securities, and as shall permit the disposition of the Registrable
Securities in accordance with the intended method of distribution or methods of
distribution specified in the applicable Demand Holder’s requests for such
registration.
(d) Nothing
in this Agreement shall limit the right of any Holder to request the
registration of the Registrable Securities issuable upon exercise of the
Warrants by such Holder (subject to such exercise occurring prior to the
completion of the sale of the underlying Registrable Securities prior to such
registration), notwithstanding the fact that at the time of the request such
Holder Warrants are not Registrable Securities.
Section
2.03. Shelf
Take-Downs. Any of the Holders whose Registrable Securities
have been registered pursuant to a Shelf Registration may initiate an offering
or sale of Registrable Securities pursuant to such Shelf Registration (each, a
“Shelf Take-Down”) and
such Holder shall not be required to permit the offer and sale of Registrable
Securities by other Holders in connection with such Shelf
Take-Down. If the initiating Holders so elect by written request to
the Company, a Shelf Take-Down may be in the form of an underwritten offering
(an “Underwritten Shelf
Take-Down”);
provided that any underwritten sale pursuant to a Shelf Registration
pursuant to this Section 2.03 must be for a number of Registrable Securities
which, based on the good faith determination of the Holders, will result in
gross proceeds of at least $5 million in the case of any Marketed Underwritten
Offering or $1 million in the case of any other underwritten
offering. The Company shall, if so requested, file and effect an
amendment or supplement of the Shelf Registration for such purpose as soon as
practicable.
Section
2.04. Selection Of
Underwriters. If a Shelf Take-Down involves an underwritten
offering, the investment bankers, underwriters and managers for such
registration shall be selected by the Holders of a majority in interest of the
Registrable Securities which the Company has been requested to register; provided that such selection
of investment bankers, underwriters and managers shall be subject to the
reasonable approval by the Company.
Section
2.05. Piggyback
Registration. (a) If the Company proposes to register Equity
Securities under the 1933 Act (other than (x) a registration under Section 2.01,
2.02 or 2.03, (y) a registration on Form S−4 or S−8 or any successor
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form to
such forms), involving the offering of such Equity Securities at any time,
whether or not for sale for its own account, in a manner which would permit
registration of Registrable Securities of the same class of such Equity
Securities for sale to the public under the 1933 Act, it will, at each such
time, give prompt written or telephonic notice (a “Piggyback Offering Notice”) to
the Holders of: its intention to do so, the form on which the Company expects to
effect such registration (e.g. Form X-0, Xxxx X-0, Form
S-3ASR), the anticipated filing date with the SEC of such registration
statement, the anticipated date that the registration statement will be declared
or otherwise become effective, whether the offering is to be underwritten, in
the case of Form S-3 or Form S-3ASR, the anticipated date and time that the
offering will be made, and (unless all of the Holders’ Registrable Securities
are then registered pursuant to Section 2.02 or 2.03 or a Shelf Registration
Statement under Section 2.01 is in effect) such notice shall offer the Holders
the opportunity to register such number of Registrable Securities as each such
Holder may request in writing (a “Piggyback
Registration”). The registration rights provided for in this
Section 2.05 are in addition to, and not in lieu of, registrations made pursuant
to Section 2.01, 2.02 or 2.03.
(b) Subject
to Section 2.05(c), the Company shall include in such Registration Statement all
such Registrable Securities which are requested to be included therein within 10
days after the receipt by such Holder of any such notice. If at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and, (x) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration, and (y) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities. If the offering pursuant to a Piggyback Registration is
to be an underwritten offering, then each Holder making a request for its
Registrable Securities to be included therein must, and the Company shall make
such arrangements with the underwriters so that each such Holder may,
participate in such underwritten offering on the same terms as the Company and
other Persons selling securities in such underwritten offering. If the offering
pursuant to such registration is to be on any other basis, then each Holder
making a request for a Piggyback Registration pursuant to this Section 2.05 must
participate in such offering on such basis. Each Holder shall be
permitted to withdraw all or part of such Holder’s Registrable Securities from a
Piggyback Registration at any time prior to effectiveness of the Registration
Statement.
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(c) If the
managing underwriter or underwriters of any proposed underwritten offering of a
class of securities included in a Piggyback Registration (or in the case of a
Piggyback Registration not being underwritten, the Company) informs the Holders
of Registrable Securities sought to be included in such registration in writing
that, in its or their opinion, the total amount or kind of securities which such
Holders and any other Persons intend to include in such offering exceeds the
number which can be sold in such offering without being likely to have a
significant adverse effect on the price, timing or distribution of the class or
classes of the securities offered or the market for the class or classes of
securities offered, then the securities of each class to be included in such
registration shall be allocated as follows:
(i) first,
100% of the securities that the Company proposes to sell;
(ii) second,
and only if all the securities referenced in clause (i) have been included, the
number of Registrable Securities of such class that, in the opinion of such
underwriter or underwriters (or in the case of a Piggyback Registration not
being underwritten, the Company), can be sold without having such adverse effect
shall be included therein, with such number to be allocated pro rata among the
Holders which have requested participation in the Incidental Registration
(based, for each such Holder, on the percentage derived by dividing (x) the
number of Registrable Securities of such class which such Holder has requested
to include in such Incidental Registration by (y) the aggregate number of
Registrable Securities of such class which all such Holders have requested to
include); and
(iii) third,
and only if all of the Registrable Securities referenced in clauses (i) and (ii)
above have been included, any other securities eligible for inclusion in such
registration shall be included therein.
Section
2.06. Registration
Procedures. If and whenever the Company is required to effect
a registration of any Registrable Securities as provided in this Agreement, the
Company will:
(a) promptly
prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use best efforts to cause a registration statement
with respect to a demand registration pursuant to Section 2.02 to be filed (in
the case of a registration pursuant to Form S-3ASR), or become effective (in the
case of any registration other than pursuant to Form S-3ASR) as promptly as
practicable;
(b) prepare
and file with the SEC such amendments and supplements to such registration
statement (including 1934 Act documents incorporated by
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reference
into the registration statement) and the Prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
not in excess of 90 days (or such longer period as may be requested by the
Holders in the event of a shelf registration statement) other than the Shelf
Registration Statement which shall remain effective for the Effectiveness Period
and to comply with the provisions of the 1933 Act and the 1934 Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement; provided that before filing a
registration statement or Prospectus or any amendments or supplements thereto in
accordance with Section 2.06(a) or this Section 2.06(b) to the extent that doing
so will not materially interfere with the timing of the offering (i) the Company
will furnish to counsel selected pursuant to Section 2.10 copies of all
documents proposed to be filed and (ii) such documents will be subject to the
review of such counsel reasonably in advance of any filing to permit a
reasonable opportunity to review and comment in light of the
circumstances;
(c) use
reasonable best efforts to comply with all applicable securities laws in the
United States and register or qualify such Registrable Securities covered by
such registration in such jurisdictions in the United States as each seller
shall reasonably request, and do any and all other acts and things which may be
reasonably necessary to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller, except that
the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 2.06(c), it would not be obligated to, subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(d) promptly
furnish to each seller of such Registrable Securities such number of copies of
such registration statement and of each amendment and supplement thereto (in
each case including all exhibits filed therewith, including any documents
incorporated by reference), such number of copies of the Prospectus included in
such registration statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the 1933 Act, and such other
similar documents as such seller may reasonably request necessary to facilitate
the disposition of the Registrable Securities by such seller;
(e) notify
each seller of any such Registrable Securities covered by such registration
statement promptly if the Company becomes aware that the Prospectus included in
such registration statement, as then in effect, or the registration statement
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing
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and,
prepare and furnish to such seller a reasonable number of copies of an amended
or supplemental prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such Registrable Securities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(f) otherwise
use reasonable best efforts to comply with all applicable rules and regulations
of the SEC, and make available to its security holders, as soon as reasonably
practicable (but not more than 18 months) after the effective date of the
registration statement, an earnings statement which shall satisfy the provisions
of Section 11(a) of the 1933 Act;
(g) (i) use
reasonable best efforts to list such Registrable Securities on NASDAQ to the
extent required and (ii) use reasonable best efforts to provide for a
transfer agent and registrar for such Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(h) in
connection with an Underwritten Shelf Take-Down, promptly enter into an
underwriting agreement in customary form, which may include indemnification
provisions in favor of underwriters and other Persons in addition to, or in
substitution for, the provisions of Section 2.09, and take such other actions as
the managing underwriters reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(i) in
connection with an Underwritten Shelf Take-Down, promptly obtain a “cold
comfort” letter or letters from the Company’s independent public accounts in
customary form and covering matters of the type customarily covered by “cold
comfort” letters provided to sellers of securities as the seller or sellers of a
majority of shares of such Registrable Securities shall reasonably
request;
(j) promptly
make available for inspection by any seller of such Registrable Securities
covered by such registration statement, by any underwriter participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company’s
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with the “due diligence” of such seller or such underwriter with respect to such
registration statement, subject to the execution of a mutually acceptable
confidentiality agreement;
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(k) promptly
notify counsel (selected pursuant to Section 2.10) for the Holders of
Registrable Securities included in such registration statement and the managing
underwriter or agent and confirm such notice in writing (i) when the
registration statement, or any post-effective amendment to the registration
statement, shall have become effective, or any supplement to the Prospectus and
any amendments to the Prospectus shall have been filed (other than in the case
of a registration pursuant to Form S-3ASR), (ii) of the receipt of any
comments from the SEC, (iii) of any request by the SEC to amend the
registration statement or amend or supplement the Prospectus or for additional
information and (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any Prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes;
(l) use
reasonable best efforts to prevent the issuance of any stop order suspending the
effectiveness of the registration statement or of any order preventing or
suspending the use of any Prospectus and, if any such order is issued, to obtain
the withdrawal of any such order as soon as practicable;
(m) (i) if
requested by the managing underwriter or agent or any Holder of Registrable
Securities covered by the registration statement, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or agent or such Holder reasonably requests to be included
therein, including, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent; and (ii) make all required filings
of such prospectus supplement or post-effective amendment as soon as practicable
after being notified of the matters incorporated in such prospectus supplement
or post-effective amendment;
(n) cooperate
with the Holders of Registrable Securities covered by the registration statement
and the managing underwriter or agent, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing securities to be sold under the registration statement, and enable
such securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or such Holders may reasonably
request;
(o) in
connection with an Underwritten Shelf Take-Down, promptly obtain for delivery to
the Holders of Registrable Securities being registered and to the underwriter or
agent an opinion or opinions from counsel for the Company in customary form and
scope for sellers of securities;
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(p) cooperate
with each seller of Registrable Securities and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
(q) use
reasonable best efforts to make available certain of the executive officers of
the Company (which in any event shall include the Company’s chief executive
officer) for a ten Business Day period to participate and to cooperate with the
Holders of Registrable Securities and any underwriters in any “road shows” or
other selling efforts, in each case in the United States, that may be reasonably
be requested upon reasonable notice thereof by the Holders in connection with an
Underwritten Shelf Take-Down.
Section
2.07. Information
Supplied. It shall be a condition precedent to the obligations
of the Company to take any action to register the Registrable Securities held by
any Holder as to which any registration is being effected that such Holder shall
furnish the Company with such information regarding such Holder that is
pertinent to the disclosure requirements relating to the registration and the
distribution of such securities as the Company may from time to time reasonably
request. Each Holder agrees to promptly furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading.
Section
2.08. Expenses. Except
as provided herein, the Company will pay all Registration Expenses in connection
with registrations of Registrable Securities requested pursuant to Sections
2.01, 2.02, 2.03 or 2.05; provided that the Company
shall not be obligated to pay the Registration Expenses in more than three
Underwritten Offerings (which shall in no event include more than two Marketed
Underwritten Offerings). To the extent the Holders engage in more
than three Underwritten Offerings, the Holders shall pay all Registration
Expenses with respect to such Underwritten Offerings and the Company will have
no obligation to pay any such Registration Expenses. Each Holder
shall pay all underwriting discounts and commissions, broker fees and
commissions, and transfer taxes, if any, relating to the sale or disposition of
such Holder’s Registrable Securities pursuant to any registration
statement.
Section
2.09. Indemnification. (a)
In the event of any registration of any securities of the Company under the 1933
Act pursuant to Sections 2.01, 2.02, 2.03 or 2.05, to the fullest extent
permitted by law, the Company will indemnify and hold harmless each Holder, each
Affiliate of such Holder and their respective directors and officers, members or
general and limited partners (and the directors, officers, employees, affiliates
and each Person who controls such Holder (within the meaning of Section 15 of
the 1933 Act or Section 20 of the 0000 Xxx) (hereinafter referred to as a “Controlling Person”) of any of
the foregoing), and
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each
underwriter, if any, and each person who controls within the meaning of Section
15 of the 1933 Act any underwriter (collectively, the “Seller Indemnified Parties”),
against all claims, losses, damages and liabilities, joint or several, actions
or proceedings (whether commenced or threatened in writing) in respect thereof
(“Claims”) and expenses
arising out of or based on: (i) any untrue statement or alleged untrue
statement of a material fact contained in a registration statement (or any
amendment or supplement thereto), including all documents incorporated therein
by reference, or any omission or alleged omission therefrom of a material fact,
in each case, necessary in order to make the statements therein not misleading,
in light of the circumstances under which they were made, (ii) any untrue
statement or alleged untrue statement of a material fact contained in a
Prospectus (or any amendment or supplement thereto), including all documents
incorporated therein by reference, or any omission or alleged omission therefrom
of a material fact, in each case, necessary in order to make the statements
therein not misleading, in light of the circumstances under which they were
made, or (iii) any untrue statement or alleged untrue statement of a
material fact contained in any Issuer Free Writing Prospectus prepared by it or
authorized by it in writing for use by such Holder (or any amendment or
supplement thereto), including all documents incorporated therein by reference,
or any omission or alleged omission therefrom of a material fact, in each case,
necessary in order to make the statements therein not misleading, in light of
the circumstances under which they were made, and the Company will reimburse
each such Seller Indemnified Party for any reasonable fees and disbursements of
counsel and any other reasonable out-of-pocket expenses incurred in connection
with investigating and defending or settling any such Claim; provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability, or action arises out of or is based on any untrue statement
or alleged untrue statement or omission or alleged omission by such Holder or
underwriter but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission is made in such registration
statement, Prospectus, or Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder and stated to be specifically for use therein; and provided that, the indemnity
agreement contained in this Section 2.09(a) shall not apply to amounts paid in
settlement of any such Claim if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld or
delayed).
(b) To the
fullest extent permitted by law, each Holder will, if Registrable Securities
held by such Holder are included in the registration statement or Prospectus,
indemnify and hold harmless the Company, all other Holders or any prospective
underwriter, as the case may be, and any of their respective Affiliates,
directors, officers and Controlling Persons (collectively, the “Company Indemnified Parties”),
against all Claims and expenses arising out of or based on: (i) any
untrue statement or alleged untrue statement of a material
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fact
contained in a registration statement (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or any omission or
alleged omission therefrom of a material fact, in each case, necessary in order
to make the statements therein not misleading, in light of the circumstances
under which they were made, (ii) any untrue statement or alleged
untrue statement of a material fact contained in a Prospectus (or any amendment
or supplement thereto), including all documents incorporated therein by
reference, or any omission or alleged omission therefrom of a material fact, in
each case, necessary in order to make the statements therein not misleading, in
light of the circumstances under which they were made or (iii) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus (or any amendment or supplement thereto), including all
documents incorporated therein by reference, or any omission or alleged omission
therefrom of a material fact, in each case, necessary in order to make the
statements therein not misleading, in light of the circumstances under which
they were made, and the Holder will reimburse each such Company Indemnified
Party for any reasonable fees and disbursements of counsel and any other
reasonable expenses incurred in connection with investigating and defending or
settling any such Claim, in each case to the extent, but only to the extent that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, Prospectus, or Issuer Free
Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Holder and stated to be
specifically for use therein; provided that the indemnity
agreement contained in this Section 2.09(b) shall not apply to amounts paid in
settlement of any such Claim if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld or delayed);
provided further that
in the absence of fraud by such Holder, the liability of each selling Holder of
Registrable Securities hereunder shall be limited to the net proceeds received
by such selling Holder from the sale of Registrable Securities covered by such
registration statement.
(c) Promptly
after receipt by a Person entitled to indemnification pursuant to this Section
2.09 (an “Indemnified
Party”) hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 2.09, such Indemnified Party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action or proceeding; provided that the failure of
the Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 2.09, except to the
extent that the indemnifying party is prejudiced in any material respect by such
failure to give notice. In case any such action or proceeding is
brought against an Indemnified Party, unless in such Indemnified Party’s
reasonable judgment, based upon advice of counsel, a conflict of interest
between such indemnified and indemnifying parties may exist
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in
respect of such action or proceeding (in which case the Indemnified Party shall
have the right to assume or continue its own defense and the indemnifying party
shall be liable for any reasonable expenses therefor (but in no event will bear
the expenses for more than one firm of counsel for all Indemnified Parties in
each jurisdiction who shall, with respect to Seller Indemnified Parties, be
approved by the majority of the participating Holders in the registration in
respect of which such indemnification is sought), the indemnifying party will be
entitled to participate in and to assume the defense thereof (at its expense),
jointly with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the indemnifying party to such Indemnified Party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation and shall have no liability for any settlement
made by the Indemnified Party without the consent of the indemnifying party,
such consent not to be unreasonably withheld. No indemnifying party
will settle any action or proceeding or consent to the entry of any judgment
without the prior written consent of the Indemnified Party, unless such
settlement or judgment (i) includes as an unconditional term thereof the
giving by the claimant or plaintiff of a release to such Indemnified Party from
all liability in respect of such action or proceeding and (ii) does not
involve the imposition of equitable remedies or the imposition of any
obligations on such Indemnified Party and does not otherwise adversely affect
such Indemnified Party, other than as a result of the imposition of financial
obligations for which such Indemnified Party will be indemnified
hereunder. An Indemnified Party may not settle any action or
proceeding or the entry of any judgment without the prior written consent of the
indemnifying party.
(d) (i) If
the indemnification provided for in this Section 2.09 from the indemnifying
party is unavailable to an Indemnified Party hereunder in respect of any Claim
or expenses referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Claim or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and Indemnified Party in connection with the actions which resulted in
such Claim or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
Indemnified Party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 2.09(d) as a result of the
Claim and expenses referred to above shall be
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deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any action or proceeding; and (ii) the parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section
2.09(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in clause (i) above. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) The
obligations of the parties under this Section 2.09 shall be in addition to any
liability which any party may otherwise have to any other party.
Section
2.10. Selection of
Counsel. In connection with any registration of Registrable
Securities pursuant to Section 2.01, 2.02, 2.03 or 2.05, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; provided
that in the event that the counsel selected as provided above is also
acting as counsel to the Company in connection with such registration, a
majority of the remaining Holders shall be entitled to select one additional
counsel to represent all such remaining Holders.
Section
2.11. No Inconsistent Agreements; No Free
Writing Prospectus. The Company represents and warrants that
it is not a party to a Contract which conflicts with or limits or prohibits the
exercise of the rights granted to the Holders of Registrable Securities in this
Article 2. Each Holder agrees that, unless it obtains the prior
consent of the Company and any such underwriter, it will not make any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the SEC.
Section
2.12. Termination of Registration
Rights. The rights of
any Holder under this Article 2 shall terminate (other than Section 2.07, 2.09
and 2.12) at such time as (a) such Holder ceases to hold any Registrable
Securities or (b) either (i) the Company is no longer required to file reports
pursuant to Section 13(a) or 15(d) of the 1934 Act and has ceased to file
reports under the 1934 Act, or (ii) a Form 15 (or any successor form) has been
filed under the 1934 Act with respect to the Common Stock, unless, in the case
of clause (b), such situation or filing is due to the occurrence of any merger,
consolidation or other transaction upon consummation of which the issuer of the
Common Stock is an entity other than the Company, in which event such rights of
the Holders shall not terminate at such time pursuant to such clause (b) and
this Agreement shall be assumed by the Survivor as provided in Section
3.04.
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ARTICLE
3
Transfer
Restrictions; Board Representation
Section
3.01. Transfer
Restrictions. Investor shall not sell or transfer, directly or
indirectly, any Purchased Shares which are not Registrable Securities except
pursuant to and in compliance with the 1933 Act. In addition,
notwithstanding any other provisions of this Agreement, Investor shall not sell
or transfer, directly or indirectly, any Purchased Shares which are not
Registrable Securities to any Third Party until the first anniversary of the
Closing Date.
Section
3.02. Board
Representation. It is acknowledged by the parties that
effective as of the Closing Date, Investor shall be entitled to designate four
members (the “Investor
Nominees”) of the Company’s Board of Directors (the “Company
Board”). The Company and the Company Board will use their best
efforts to cause any Investor Nominees to be elected to the Company Board,
including promptly calling a special meeting of the stockholders of the Company
at the request of Investor and recommending to the stockholders of the Company
that they vote for the election of any Investor Nominees to the Company
Board. Investor and the Company agree that Investor’s right to
designate four Investor Nominees will terminate upon the earlier of (i) Investor
(together with its Affiliates) ceasing to be the largest individual stockholder
of the Company or (ii) Investor (together with its Affiliates) owning less than
25% of the outstanding shares of Common Stock.
ARTICLE
4
Miscellaneous
Section
4.01. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission) and shall be given,
if to
Investor, to:
No 0,
Xxxxxxx Xxxx,
Xxxxxxxxx Airport Economic Development Zone,
Chengdu, China 610200
Attention:
Xxx Xxx
Facsimile
No.: x00-00-0000-0000
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with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx LLP
00/X,
Xxxx Xxxxxx Xxxx,
X00, Xxxx
Xxx Men Wai Avenue,
Xxxx Xxxx
Xxxxxxxx,
Xxxxxxx
000000XX
Attention:
Xxxxxx Xxxxx
Facsimile
No.: + 00-00-0000-0000
if to the
Company, to:
Hoku
Scientific, Inc.
0000 Xxx
Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxxxx 00000
Attention:
Chief Executive Officer
Facsimile
No.: + 0 000-000-0000
with a
copy to:
Stoel
Rives LLP
000 X.
Xxxxxxx Xxxx., Xxxxx 0000
Xxxxx,
Xxxxx 00000
Attention:
Xxxx X. Xxxx
Facsimile
No.: + 1 208-389-9040
or such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. in the place of
receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed not to have been received until the next succeeding Business Day in
the place of receipt.
Section
4.02. Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
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Section
4.03. Expenses. Except
as otherwise provided herein (and except as provided in the Securities Purchase
Agreement), all expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
Section
4.04. Successors and Assigns;
Assignment. Except as
otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns, heirs,
executors and administrators of the parties hereto. This Agreement
may not be assigned without the prior written consent of the other parties,
except that this Agreement (i) may be assigned by a Holder so long as the Person
to whom it is being assigned agrees to be bound under this Agreement as a Holder
hereunder and delivers a counterpart signature page to this Agreement to the
Company and (ii) shall be assigned by the Company in the event of any merger,
consolidation or other transaction upon consummation of which the issuer of the
Common Stock is an entity other than the Company (such entity, the “Survivor”) to such Survivor,
and the Company shall not enter into any such transaction unless and until the
Survivor assumes all rights and obligations of the Company hereunder pursuant to
a written agreement for the benefit of the Holders (it being understood that if
the Survivor is the issuer of the Common Stock and such assumption of the rights
and obligations of the Company hereunder occurs by operation of law, that such
Survivor shall not be required to execute a written agreement for the benefit of
the Holders).
Section
4.05. No Third Party
Beneficiaries. Except as
specifically provided in Section 2.09 (with respect to which the Indemnified
Parties named therein shall be express, intended third party beneficiaries of
such provision), this Agreement is not intended, and shall not be deemed, to
confer any rights or remedies upon any Person other than the parties hereto or
otherwise create any third-party beneficiary hereto.
Section
4.06. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York, without regard to the
conflicts of law rules of such state.
Section
4.07. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in the United
States District Court for the Southern District of New York or any New York
State court sitting in New York City, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have arisen
from a transaction of business in the State of New York, and each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
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proceeding
brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees
that service of process on such party as provided in Section
4.01 shall be deemed effective service of process on such
party.
Section
4.09. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by all of the other parties hereto. Until
and unless each party has received a counterpart hereof signed by the other
party hereto, this Agreement shall have no effect and no party shall have any
right or obligation hereunder (whether by virtue of any other oral or written
agreement or other communication).
Section
4.10. Entire Agreement. This
Agreement and the other agreements or documents referred to herein, constitutes
the entire agreement between the parties with respect to the subject matter of
this Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter of this
Agreement.
Section
4.11. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
Section
4.12. Specific
Performance. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to
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enforce
specifically the performance of the terms and provisions hereof in the United
States District Court for the Southern District of New York or any New York
State court sitting in New York City, in addition to any other remedy to which
they are entitled at law or in equity.
[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Investor Rights Agreement
as of the date first set forth above.
| HOKU SCIENTIFIC, INC. | |||
| By: | /s/ Xxxxxx X. Xxxxxx | ||
| Title: President and CEO | |||
| TIANWEI NEW ENERGY HOLDINGS CO., LTD. | |||
|
By:
|
/s/ Xxxxx Xxxx | ||
| Title: Legal Representative | |||
[Signature page to Investor Rights
Agreement]
By
executing this Investor Rights Agreement, the undersigned is agreeing to the
rights and obligations of a “Holder” hereunder.
| HOLDER | |
| Name of Holder: ________________________________ | |
| By: __________________________________________ | |
| Name: ________________________________________ | |
| Title: _________________________________________ | |
| Date: _________________________________________ | |
| Address: ______________________________________ | |
| ______________________________________________ | |
| ______________________________________________ |
