REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is
entered into as of the 16th day of
December, 2010, by and among, GSME Acquisition Partners I, a company organized
under the laws of the Cayman Islands (the “Company”), and the
undersigned parties listed under Investors on the signature page hereto (each,
an “Investor”
and collectively, the “Investors”).
WHEREAS,
the Investors have been and may be issued Ordinary Shares (as defined below) in
the Company pursuant to an Amended and Restated Agreement and Plan of
Reorganization, dated as of September 13, 2010, as amended on December 9, 2010,
among the Company, GSME Acquisition Partners I Sub Limited, the Investors and
Plastec International Holdings Limited (as amended, restated, supplemented, or
otherwise modified from time to time, the “Merger Agreement”);
and
WHEREAS,
the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of Ordinary Shares
owned by them.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The
following capitalized terms used herein have the following
meanings:
“Agreement” means this
Agreement, as amended, restated, supplemented, or otherwise modified from time
to time.
“Cathay” means Cathay
Plastic Limited (BVI), a company incorporated under the laws of the British
Virgin Islands, and an Investor.
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Company” is defined
in the preamble to this Agreement.
“Demand Registration”
is defined in Section 2.1.1.
“Demanding Holder” is
defined in Section 2.1.1.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, as in effect at the time.
“Existing Registrable
Securities” means the securities covered by the Existing Registration
Rights Agreement.
“Existing Registration Rights
Agreement” means that certain Registration Rights Agreement dated as of
November 19, 2009, as amended, by and among the Company and the investors
identified therein.
“Form F-3” is defined
in Section 2.3.
“Indemnified Party” is
defined in Section 4.3.
“Indemnifying Party”
is defined in Section 4.3.
“Investor” is defined
in the preamble to this Agreement.
“Investor Indemnified
Party” is defined in Section 4.1.
“Maximum Number of
Shares” is defined in Section 2.1.4.
“Merger Agreement” is
defined in the preamble to this Agreement.
“Non-Cathay Demanding
Holders” is defined in Section 2.1.1.
“Non-Cathay Investors”
is defined in Section 2.1.1.
“Notices” is defined
in Section 6.3.
“Option Securities” is
defined in Section 2.1.4.
“Ordinary Shares”
shall mean shares of common stock of the Company, par value $0.001 per
share.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Pro Rata” is defined
in Section 2.1.4.
“Register,” “registered” and
“registration”
mean a registration with respect to the Registrable Securities effected by
preparing and filing a registration statement or similar document in compliance
with the requirements of the Securities Act, and the applicable rules and
regulations promulgated thereunder, and such registration statement becoming
effective.
“Registrable
Securities” means all of the Ordinary Shares issued, or issuable, to the
Investors pursuant to the Merger Agreement (including the Earnout Shares (as
defined therein)). Registrable Securities includes any warrants,
Ordinary Shares or other securities of the Company issued as a dividend or other
distribution with respect to or in exchange for or in replacement of such
Ordinary Shares. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when: (a) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been sold,
transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) the Company shall have received an
opinion of its counsel that such Registrable Securities are salable under Rule
144 without volume restrictions.
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of equity securities, or
securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities of the Company (other than a registration statement on
Form S-4 or Form S-8, or their successors, or any registration statement
covering only securities proposed to be issued in exchange for securities or
assets of another entity).
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“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer's market-making
activities.
“Unit Purchase Option”
is defined in Section 2.1.4.
2. REGISTRATION
RIGHTS.
2.1 Demand
Registration.
2.1.1 Request for
Registration. At any time and from time to time on or after
the date hereof, (i) one or more Investors other than Cathay (the “Non-Cathay
Investors”) holding at least 1,000,000 Registrable Securities in the
aggregate (subject to adjustment in the event of a stock split, consolidation or
recapitalization) and (ii) Cathay may each make a separate written demand for
registration under the Securities Act of all or part (but not less than 500,000,
subject to adjustment in the event of a stock split, consolidation or
recapitalization) of their respective Registrable Securities (a “Demand
Registration”). Any such demand for a Demand Registration
shall specify the type and number of shares of Registrable Securities proposed
to be sold and the intended method(s) of distribution thereof. In the
event of a demand by one or more Non-Cathay Investors, the Company will notify
all other Non-Cathay Investors of the demand within ten (10) days from the
receipt of the demand, and each Non-Cathay Investor that holds Registrable
Securities and wishes to include all or a portion of its Registrable Securities
in the Demand Registration of the Non-Cathay Investors (together with the
Non-Cathay Investors demanding the Demand Registration, the “Non-Cathay Demanding
Holders”) shall so notify the Company within fifteen (15) days after the
receipt by the holder of the notice from the Company. In the case of
a demand by one or more Non-Cathay Investors, each Non-Cathay Demanding Holder
shall be referred to as a “Demanding Holder”,
and in the case of a demand by Cathay, Cathay shall be referred to as the “Demanding
Holder”. Upon such a demand for a Demand Registration, the
Demanding Holder(s) shall be entitled to have their Registrable Securities
included in a Demand Registration, subject to Section 2.1.4 and the provisos set
forth in Section 3.1.1. The Company shall not be obligated to effect
more than two (2) Demand Registrations pursuant to clause (i) of the first
sentence of this Section 2.1.1 and two (2) additional Demand Registrations
pursuant to clause (ii) of the first sentence of this Section 2.1.1 in respect
of Registrable Securities. Registrable Securities registered under
this Section shall remain subject to the transfer restrictions set forth in
Section 5.3 of the Merger Agreement.
2.1.2 Effective
Registration. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its obligations under this Agreement with respect
thereto; provided, however, that if,
after such Registration Statement has been declared effective, the offering of
Registrable Securities pursuant to a Demand Registration is interfered with by
any stop order or injunction of the Commission or any other governmental agency
or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until, (i) such
stop order or injunction is removed, rescinded or otherwise terminated, and (ii)
a majority in interest of the Demanding Holders (or, if there is only one, the
Demanding Holder) thereafter elect(s) to continue the offering; provided, further, that the
Company shall not be obligated to file a second Registration Statement until a
Registration Statement that has been filed is counted as a Demand Registration
or is terminated or withdrawn.
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2.1.3 Underwritten
Offering. If not less than a majority in interest of the
Demanding Holders (or, if there is only one, the Demanding Holder) so elects and
such holder(s) so advise the Company as part of a written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten
offering. In such event, the right of any holder to include its
Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting to the extent provided
herein. Any Demanding Holder proposing to distribute its Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest of the holders (or, if there is only one,
the holder) initiating the Demand Registration.
2.1.4 Reduction of
Offering. If (x) the managing Underwriter or Underwriters for
a Demand Registration that is to be an underwritten offering advises the Company
and the Demanding Holder(s) in writing that the dollar amount or number of
shares of Registrable Securities which the Demanding Holder(s) desire(s) to
sell, taken together with all other Ordinary Shares or other securities which
the Company desires to sell and the Ordinary Shares, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other shareholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such
offering or (y) the Staff of the Commission does not permit all of the
Registrable Securities requested by the Demanding Holder(s), taken together with
all other Ordinary Shares or other securities which the Company desires to sell
and the Ordinary Shares, if any, as to which registration has been requested
pursuant to written contractual piggy-back registration rights held by other
shareholders of the Company who desire to sell, to be included in the
Registration Statement filed for a Demand Registration (the maximum dollar
amount or maximum number of shares, as applicable, that can be sold or
registered in the Demand Registration are referred to herein as the “Maximum Number of
Shares”), then the Company shall include in such
registration:
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(i) If
the Demand Registration was demanded by Cathay, (A) first, the Registrable
Securities as to which Demand Registration has been requested by Cathay and the
Ordinary Shares or other securities, if any, comprised of Existing Registrable
Securities, as to which registration has been requested pursuant to the
applicable piggy-back rights contained in the Existing Registration Rights
Agreement (pro rata in accordance with the number of shares which each such
person has requested be included in such registration, regardless of the number
of shares held by each such person (such proportion, “Pro Rata”)) that can
be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the Ordinary Shares or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
(C) third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the Ordinary Shares or other securities
registrable pursuant to the terms of the Unit Purchase Option to be issued to
Xxxxx & Company Securities, LLC (“Xxxxx & Company”)
or its designees in connection with the Company’s initial public offering on
November 25, 2009 (the “Unit Purchase Option”
and such registrable securities, the “Option Securities”)
as to which “piggy-back” registration has been requested by the holders thereof,
Pro Rata, that can be sold without exceeding the Maximum Number of Shares; (D)
fourth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other
securities for the account of other persons that the Company is obligated to
register pursuant to written contractual arrangements with such persons and that
can be sold without exceeding the Maximum Number of Shares; and (E) fifth, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B), (C) and (D), the Ordinary Shares or other securities
that other security holders desire to sell that can be sold without exceeding
the Maximum Number of Shares; or
(ii) If
the Demand Registration was demanded by one or more Non-Cathay Investors, (A)
first, the Registrable Securities as to which Demand Registration has been
requested by the Non-Cathay Demanding Holders and the Ordinary Shares or other
securities, if any, comprised of Existing Registrable Securities, as to which
registration has been requested pursuant to the applicable piggy-back rights
contained in the Existing Registration Rights Agreement, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the Ordinary Shares or other securities that the Company desires to
sell that can be sold without exceeding the Maximum Number of Shares; (C) third,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A) and (B), the Option Securities as to which “piggy-back”
registration has been requested by the holders thereof, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; (D) fourth, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the Ordinary Shares or other securities for
the account of other persons that the Company is obligated to register pursuant
to written contractual arrangements with such persons and that can be sold
without exceeding the Maximum Number of Shares; and (E) fifth, to the extent
that the Maximum Number of Shares have not been reached under the foregoing
clauses (A), (B), (C) and (D), the Ordinary Shares or other securities that
other security holders desire to sell that can be sold without exceeding the
Maximum Number of Shares.
2.1.5 Withdrawal. If
a majority in interest of the Demanding Holders (or, if there is only one, the
Demanding Holder) disapproves of the terms of any underwriting or would not be
entitled to include all of its or their Registrable Securities in any offering,
such majority in interest of the Demanding Holders (or, if there is only one,
the Demanding Holder) may elect to withdraw from such offering by giving written
notice to the Company and the Underwriter or Underwriters of the request to
withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority
in interest of the Demanding Holders (or, if there is only one, the Demanding
Holder) withdraws from a proposed offering relating to a Demand Registration,
then such registration shall not count as a Demand Registration provided for in
this Section 2.1.
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2.2 Piggy-Back
Registration.
2.2.1 Piggy-Back
Rights. If at any time on or after the date of this Agreement
the Company proposes to file a Registration Statement under the Securities Act
with respect to an offering of equity securities, or securities or other
obligations exercisable or exchangeable for, or convertible into, equity
securities, by the Company for its own account or for shareholders of the
Company for their account (or by the Company and by shareholders of the Company
including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company's existing shareholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan, then the Company shall (x) give written notice of such
proposed filing to the holders of Registrable Securities as soon as practicable
but in no event less than ten (10) days before the anticipated filing date,
which notice shall describe the amount and type of securities to be included in
such offering, the intended method(s) of distribution, and the name of the
proposed managing Underwriter or Underwriters, if any, of the offering, and (y)
offer to the holders of Registrable Securities in such notice the opportunity to
register the sale of such number of shares of Registrable Securities as such
holders may request in writing within five (5) days following receipt of such
notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable
Securities to be included in such registration and shall use its best efforts to
cause the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing
to distribute their securities through a Piggy-Back Registration that involves
an Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2 Reduction of
Offering. If (x) the managing Underwriter or Underwriters for
a Piggy-Back Registration that is to be an underwritten offering advises the
Company and the holders of Registrable Securities in writing that the dollar
amount or number of Ordinary Shares which the Company desires to sell, taken
together with Ordinary Shares, if any, as to which registration has been
demanded pursuant to written contractual arrangements with persons other than
the holders of Registrable Securities hereunder, the Registrable Securities as
to which registration has been requested under this Section 2.2, and the
Ordinary Shares, if any, as to which registration has been requested pursuant to
the written contractual piggy-back registration rights of other shareholders of
the Company, exceeds the Maximum Number of Shares, or (y) the Staff of the
Commission does not permit all of the Registrable Securities requested by the
Holders, taken together with all other Ordinary Shares or other securities which
the Company desires to sell and the Ordinary Shares, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other shareholders of the Company who desire to
sell, to be included in the Registration Statement filed for the Piggy-Back
Registration, then the Company shall include in any such
registration:
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(i) If
the registration is undertaken for the Company's account: (A) first, the
Ordinary Shares or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the Ordinary Shares or other securities, if any, comprised of
Registrable Securities, Existing Registrable Securities or Option Securities, as
to which registration has been requested pursuant to written contractual
piggy-back registration rights of such security holders, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; and (C) third, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A) and (B), the Ordinary Shares or other securities for the
account of other persons that the Company is obligated to register pursuant to
written contractual piggy-back registration rights with such persons and that
can be sold without exceeding the Maximum Number of Shares;
(ii) If
the registration is a “demand” registration pursuant to the Existing
Registration Rights Agreement, securities as provided therein; and
(iii) If
the registration is a “demand” registration undertaken at the demand of persons
other than the holders of Registrable Securities or Existing Registrable
Securities or pursuant to written contractual arrangements with such persons,
(A) first, the Ordinary Shares or other securities for the account of the
demanding persons that can be sold without exceeding the Maximum Number of
Shares, Pro Rata; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the Ordinary Shares or
other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (A)
and (B), collectively the Ordinary Shares or other securities comprised of
Registrable Securities, Existing Registrable Securities or Option Securities, as
to which registration has been requested pursuant to the terms of this Section
2.2 or of the Existing Registration Rights Agreement, as applicable, Pro Rata,
that can be sold without exceeding the Maximum Number of Shares; and (D) fourth,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for
the account of other persons that the Company is obligated to register pursuant
to written contractual arrangements with such persons that can be sold without
exceeding the Maximum Number of Shares.
2.2.3 Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder's request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on
its own determination or as the result of a withdrawal by persons making a
demand pursuant to written contractual obligations) may also elect to withdraw a
Registration Statement at any time prior to the effectiveness of such
Registration Statement. Notwithstanding any such withdrawal, the
Company shall pay all expenses incurred by the holders of Registrable Securities
in connection with such Piggy-Back Registration as provided in Section
3.3.
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2.3 Registrations on Form
F-3. The holders of Registrable Securities may at any time and
from time to time, request in writing that the Company register the resale of
any or all of such Registrable Securities on Form F-3 or any similar short-form
registration which may be available at such time (“Form F-3”); provided, however, that the
Company shall not be obligated to effect such request through an underwritten
offering. Upon receipt of such written request, the Company will
promptly give written notice of the proposed registration to all other holders
of Registrable Securities, and, as soon as practicable thereafter, effect the
registration of all or such portion of such holder's or holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities or other securities of the Company, if any, of any
other holder or holders joining in such request as are specified in a written
request given within fifteen (15) days after receipt of such written notice from
the Company; provided, however, that the
Company shall not be obligated to effect any such registration pursuant to this
Section 2.3: (i) if Form F-3 is not available for such offering; or (ii) if the
holders of the Registrable Securities, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at any aggregate
price to the public of less than $500,000. Registrations effected pursuant to
this Section 2.3 shall not be counted as Demand Registrations effected pursuant
to Section 2.1. Registrable Securities registered under this Section
shall remain subject to the transfer restrictions set forth in Section 5.3 of
the Merger Agreement.
3. REGISTRATION
PROCEDURES.
3.1. Filings;
Information. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company
shall use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof as expeditiously as practicable, and in connection with any such
request:
3.1.1 Filing Registration
Statement. The Company shall, as expeditiously as possible and
in any event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall use
its best efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3; provided, however, that the
Company shall have the right to defer any Demand Registration for up to thirty
(30) days, and any Piggy-Back Registration for such period as may be applicable
to deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate
signed by the Chief Executive Officer of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its shareholders for such Registration Statement
to be effected at such time; provided, further, that the
Company shall not have the right to exercise the right set forth in the
immediately preceding proviso more than once in any 365-day period in respect of
a Demand Registration hereunder.
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3.1.2 Copies. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders' legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3 Amendments and
Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and in
compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement or such securities have been
withdrawn.
3.1.4 Notification. After
the filing of a Registration Statement, the Company shall promptly, and in no
event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing,
and shall further notify such holders promptly and confirm such advice in
writing in all events within two (2) business days of the occurrence of any of
the following: (i) when such Registration Statement becomes effective; (ii) when
any post-effective amendment to such Registration Statement becomes effective;
(iii) the issuance or threatened issuance by the Commission of any stop order
(and the Company shall take all actions required to prevent the entry of such
stop order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any prospectus
relating thereto or for additional information or of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by
such Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to each holder of Registrable Securities included in
such Registration Statement, and to the legal counsel for each such holder,
copies of all such documents proposed to be filed sufficiently in advance of
filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
3.1.5 State Securities Laws
Compliance. The Company shall use its best efforts to (i)
register or qualify the Registrable Securities covered by the Registration
Statement under such securities or “blue sky” laws of such jurisdictions in the
United States as the holders of Registrable Securities included in such
Registration Statement (in light of their intended plan of distribution) may
request and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3.1.5 or subject itself to taxation in any such
jurisdiction.
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3.1.6 Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations,
warranties and covenants of the Company in any underwriting agreement which are
made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the holders of Registrable Securities
included in such registration statement. No holder of Registrable
Securities included in such registration statement shall be required to make any
representations or warranties in the underwriting agreement except, if
applicable, with respect to such holder's organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder's material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished in
writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation. The
principal executive officer of the Company, the principal financial officer of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.8 Records. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such Registration Statement and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
3.1.9 Opinions and Comfort
Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed
counterpart, addressed to such holder, of (i) any opinion of counsel to the
Company delivered to any Underwriter and (ii) any comfort letter from the
Company's independent public accountants delivered to any
Underwriter. In the event no legal opinion is delivered to any
Underwriter, the Company shall furnish to each holder of Registrable Securities
included in such Registration Statement, at any time that such holder elects to
use a prospectus, an opinion of counsel to the Company to the effect that the
Registration Statement containing such prospectus has been declared effective
and that no stop order is in effect.
10
3.1.10 Earnings
Statement. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and make available to
its shareholders, as soon as practicable, an earnings statement covering a
period of twelve (12) months, beginning within three (3) months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11 Listing. The
Company shall use its best efforts to cause all Registrable Securities included
in any registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then
listed or designated or, if no such similar securities are then listed or
designated, in a manner satisfactory to the holders of a majority of the
Registrable Securities included in such registration.
3.2. Obligation to Suspend
Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in
the case of a resale registration on Form F-3 pursuant to Section 2.3, upon any
suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company's Board of Directors, of the ability of all
“insiders” covered by such program to transact in the Company's securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of “insiders” to transact in the
Company's securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3. Registration
Expenses. The Company shall bear all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1, any
Piggy-Back Registration pursuant to Section 2.2, and any registration on Form
F-3 effected pursuant to Section 2.3, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or “blue sky” laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable
Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory
Authority fees; (vii) fees and disbursements of counsel for the Company and fees
and expenses for independent certified public accountants retained by the
Company (including the expenses or costs associated with the delivery of any
opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the
fees and expenses of any special experts retained by the Company in connection
with such registration and (ix) the fees and expenses of one legal counsel
selected by the holders of a majority-in-interest of the Registrable Securities
included in such registration. The Company shall have no obligation
to pay any underwriting discounts or selling commissions attributable to the
Registrable Securities being sold by the holders thereof, which underwriting
discounts or selling commissions shall be borne by such
holders. Additionally, in an underwritten offering, all selling
shareholders and the Company shall bear the expenses of the Underwriter pro rata
in proportion to the respective amount of shares each is selling in such
offering.
11
3.4. Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company's obligation to comply with Federal and applicable
state securities laws.
4. INDEMNIFICATION
AND CONTRIBUTION.
4.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents, and each person, if any, who controls an Investor and each
other holder of Registrable Securities (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified
Party”), from and against any expenses, losses, judgments, claims,
damages or liabilities, whether joint or several, arising out of or based upon
any untrue statement (or allegedly untrue statement) of a material fact
contained in any Registration Statement under which the sale of such Registrable
Securities was registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained in the Registration Statement,
or any amendment or supplement to such Registration Statement, or arising out of
or based upon any omission (or alleged omission) to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation promulgated thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration; and the Company shall promptly reimburse the Investor Indemnified
Party for any legal and any other expenses reasonably incurred by such Investor
Indemnified Party in connection with investigating and defending any such
expense, loss, judgment, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue
statement or allegedly untrue statement or omission or alleged omission made in
such Registration Statement, preliminary prospectus, final prospectus, or
summary prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall
indemnify any Underwriter of the Registrable Securities, their officers,
affiliates, directors, partners, members and agents and each person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
12
4.2 Indemnification by Holders
of Registrable Securities. Each selling holder of Registrable
Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by
such selling holder, indemnify and hold harmless the Company, each of its
directors and officers and each Underwriter (if any), and each other selling
holder and each other person, if any, who controls another selling holder or
such Underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statement therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder's indemnification
obligations hereunder shall be several and not joint and shall be limited to the
amount of any net proceeds actually received by such selling holder in
connection with the sale of the Registrable Securities by such selling holder
pursuant to the Registration Statement containing such untrue
statement.
4.3 Conduct of Indemnification
Proceedings. Promptly after receipt by any person of any
notice of any loss, claim, damage or liability or any action in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”)
shall, if a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the “Indemnifying Party”)
in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the
failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party
may have to such Indemnified Party hereunder, except and solely to the extent
the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action
brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it
wishes, jointly with all other Indemnifying Parties, to assume control of the
defense thereof with counsel satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any
action in which both the Indemnified Party and the Indemnifying Party are named
as defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, consent to entry of judgment or
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
13
4.4 Contribution.
4.4.1
If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3
is unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such 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 loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 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 the immediately preceding Section
4.4.1.
The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of any fraudulent misrepresentation.
5. UNDERWRITING
AND DISTRIBUTION.
5.1 Demanding Holder
Underwritten Offering. In the case of any registration effected pursuant
to Section 2.1, the Demanding Holders shall have the right to designate a
managing underwriter reasonably acceptable to the Company in any such offering
which is to be an underwritten offering and, to the extent required by the
underwriters, the Company and any other person including securities in such
registration shall be parties to any underwriting agreement relating thereto and
shall make appropriate representations and warranties and other agreements for
the benefit of the underwriters and the Company.
5.2 Company Underwritten
Offering. In the case of any registration effected pursuant to Section
2.2, the Company or another group of security holders shall have the right to
designate the managing underwriter in any underwritten offering and, to the
extent required by the underwriters, the holders of the Registrable Securities
shall be a party to any underwriting agreement relating thereto and shall make
appropriate representations and warranties and other agreements for the benefit
of the underwriters and the Company.
14
5.3
Rule
144. The Company covenants that it shall file all reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1. Other Registration
Rights. The Company represents and warrants that, except for
(i) Xxxx Xxxx Gao, Xxx X. Xxxxx and Xxxxxxxx X. Xxxxx under the registration
rights agreement with the Company dated November 19, 2009, and (ii)
Xxxxx & Company with respect to the unit purchase offering issued in
connection with the Company’s initial public offering, no person, other than a
holder of the Registrable Securities, has any right to require the Company to
register any shares of the Company's capital stock for sale or to include shares
of the Company's capital stock in any registration filed by the Company for the
sale of shares of capital stock for its own account or for the account of any
other person.
6.2. Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties
and obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities by any such
holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns. This Agreement is not
intended to confer any rights or benefits on any persons that are not party
hereto other than as expressly set forth in Article 4 and this Section
6.2
6.3. Notices. All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”) required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile; provided, that if
such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business
day. Notice otherwise sent as provided herein shall be deemed given
on the next business day following timely delivery of such notice to a reputable
air courier service with an order for next-day delivery.
If to the
Company:
GSME
Acquisition Partners I
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
XXX 000000
Attn:
Chief Executive Officer
with a
copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
00
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
If to
Cathay Plastic Limited (BVI):
Cathay
Plastic Limited (BVI)
x/x Xxx
Xxxxxxx Xxxxxxxxxx, Xxx.
00/X, Xx.
Xxxx’s Xxxx.
00 Xxxxxx
Xxxx
Xxxxxxx,
Xxxx Xxxx
Attn: Xxxxxxx
Xxxxx
Telephone:
000-00000000
Telecopier:
000-0000-0000
with a
copy to:
Xxxxx,
Schiller & Flexner LLP
000
Xxxxxxxxx Xxxxxx – 0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxx, Esq.
Telephone: 000-000-0000
Telecopier: 212-446-2350
If to Sun
Yip Industrial Company Limited (BVI):
Sun Yip
Industrial Company Limited (BVI)
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong.
Attn: Kin
Sun Sze-To
Telephone:
000-00000000
Telecopier:
852-27796001
If to
Tiger Power Industries Limited (BVI):
Tiger
Power Industries Limited (BVI)
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong.
Attn: Kin
Sun Sze-To
Telephone:
000-00000000
Telecopier:
852-27796001
16
If to
Expert Rank Limited (BVI):
Expert
Rank Limited
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong.
Attn: Ho
Xxxxx NING
Telephone:
000-00000000
Telecopier:
852-27796001
If to
Fine Colour Limited (BVI):
Fine
Colour Limited
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong.
Attn:
Chin Xxxx XXX
Telephone:
000-00000000
Telecopier:
852-27796001
If to
Greatest Sino Holdings Limited (BVI):
Greatest
Sino Holdings Limited
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong.
Attn: Xxx
Xxxx XXXX
Telephone:
000-00000000
Telecopier:
852-27796001
If to
Colourful Asia International Limited (BVI):
Colourful
Asia International Limited
x/x Xxxx
0000, Xxxxx Merchant Tower
Shun Tak
Centre, Xxxxxx Xxx
Hong
Kong.
Attn: Xxx
Xxxx XXX
Telephone:
000-00000000
Telecopier:
852-25877272
If to Top
Universe Management Limited (BVI):
Top
Universe Management Limited
x/x Xxxx
0000, Xxxxx Merchant Tower
Shun Tak
Centre, Xxxxxx Xxx
Hong
Kong.
Attn:
Xxxx Wa HUNG
17
Telephone:
000-00000000
Telecopier:
852-25877272
And also,
if to any of Sun Yip Industrial Company Limited (BVI), Tiger Power Industries
Limited (BVI), Expert Rank Limited (BVI), Fine Colour Limited (BVI), Greatest
Sino Holdings Limited(BVI), Colourful Asia International Limited (BVI) or Top
Universe Management Limited (BVI), with a copy to:
Plastec
International Holdings Limited
Xxxx 00,
00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
HK
Attn:
Xxxxxxx Xxxx
Telephone:
000-00000000
Telecopier:
852-27796001
Xxxx
Xxxxx LLP
000 Xxxxx
Xxxxx Xxx., Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxx Xxxxxxx, Esq.
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
6.4. Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
6.5. Counterparts; Facsimile
Signatures. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument. Facsimile
signatures shall be deemed to be original signatures for all purposes of this
Agreement.
6.6. Entire
Agreement. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.7. Modifications and
Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such
party.
6.8. Titles and
Headings. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
18
6.9. Waivers and
Extensions. Any party to this Agreement may waive any right,
breach or default which such party has the right to waive; provided, however, that such
waiver will not be effective against the waiving party unless it is in writing,
is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived
has arisen or the breach or default waived has occurred. Any waiver
may be conditional. No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof nor of any breach of any other agreement or provision
herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10.
Specific
Performance. Each of the parties acknowledges and agrees that
the other parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties
agrees that the other parties shall be entitled to an injunction or injunctions
(without the necessity of posting a bond or other security) to prevent breaches
of the provisions of this Agreement and to enforce specifically this Agreement
and the terms and provisions hereof in any action instituted in any court of the
United States or any state or other foreign court or governmental body having
jurisdiction over the parties and the matter, in addition to any other remedy to
which they may be entitled, at law or in equity.
6.11. Remedies
Cumulative. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, any Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under
this Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.12. Governing
Law. This Agreement shall be governed by, interpreted under,
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed within the State of New York,
without giving effect to any choice-of-law provisions thereof that would compel
the application of the substantive laws of any other
jurisdiction. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
or the United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the parties hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
6.13. Waiver of Trial by
Jury. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other
proceeding (whether based on contract, tort or otherwise) arising out of,
connected with or relating to this Agreement, the transactions contemplated
hereby, or the actions of the Investor in the negotiation, administration,
performance or enforcement hereof.
19
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
20
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to
be executed and delivered by their duly authorized representatives as of the
date first written above.
|
The
Company:
|
||
|
GSME
ACQUISITION PARTNERS I
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
The
Investors:
|
||
|
SUN
YIP INDUSTRIAL COMPANY LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
TIGER
POWER INDUSTRIES LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
EXPERT
RANK LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
FINE
COLOUR LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
CATHAY
PLASTIC LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
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GREATEST
SINO HOLDINGS LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
COLOURFUL
ASIA INTERNATIONAL LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
TOP
UNIVERSE MANAGEMENT LIMITED (BVI)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
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