Contract
Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT (“Agreement”) dated as
of November 30, 2009, between Sino Gas International Holdings, Inc.,
a Utah corporation (the “Company”), and each
person or entity listed as a Purchaser on Schedule I attached
to this Agreement (collectively and individually, the “Purchaser”). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Note.
ARTICLE
I
Section
1.3 The
Closing. Following the Initial Closing, there may be multiple
closings (together with the Initial Closing, each, a “Closing”) hereunder
on such other date or dates as the Company and the purchasers purchasing
Securities on such date may agree (together with the Initial Closing Date, each,
a “Closing
Date”); provided that the final Closing Date shall be no later than
December 30, 2009. On the Closing Date, the Company shall deliver to
the Purchaser the Securities purchased hereunder, registered in the name of such
Purchaser or its nominee. On or prior to the Closing Date, the
Purchaser shall deliver the Purchase Price (the “Escrowed Funds”) by
certified check made payable to the order of “Signature Bank, as Escrow Agent
for Sino Gas International Holdings, Inc.” or by wire transfer of immediately
available funds:
Wire
transfers to the Escrow Agent shall be made as follows:
Wire
transfers to the Escrow Agent shall be made as follows:
ABA#:
000000000
Account#:
1500984569
Re: Sino
Gas International Holdings, Inc. Signature Bank as escrow agent
Attention:
Xxx Xxxxx
In
addition, each party shall deliver all documents, instruments and writings
required to be delivered by such party pursuant to this Agreement at or prior to
the Closing. The Securities will be fully owned and paid for by the
Purchaser as of the Closing Date. The account with Signature Bank
(the “Escrow
Agent”) shall be referred to herein as the “Escrow Account” and
such agreement setting forth the terms of the escrow arrangement, the “Escrow
Agreement”. Unless the minimum amount of $4,000,000 is sold by
December 30, 2009 (the “Termination Date”),
or by March 1, 2010 (the “Final Termination
Date”) if the Termination Date has been extended by Company and the
Placement Agent, the Offering shall terminate and all funds shall be returned by
Escrow Agent to the Purchasers as per the terms of the Escrow
Agreement.
Section
1.5 As used herein, “Trading Day” shall
mean a day on which there is trading on the OTC Bulletin Board or such other
market or exchange on which the Common Stock is then principally
traded.
ARTICLE
II
2
3
4
5
6
7
(q) Foreign Corrupt Practices
Act. To the Company’s knowledge, neither the Company, nor any
director, officer, agent, employee or other person acting on behalf of the
Company or any Subsidiary has, in the course of acting for, or on behalf of, the
Company, directly or indirectly used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; directly or indirectly made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended, or any similar treaties of
the United States; or directly or indirectly made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government or party official or employee.
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(s) Issuance of Conversion Shares and/or
Warrant Shares. The Conversion Shares and Warrant Shares are
duly authorized and reserved for issuance and, upon conversion of the Notes
and/or exercise of the Warrants, as applicable, in accordance with the terms
thereof, such Conversion Shares and/or Warrant Shares will be validly issued,
fully paid and non-assessable, free and clear of any and all liens, claims and
encumbrances and the holders of such Conversion Shares and/or Warrant Shares
shall be entitled to all rights and preferences accorded to a holder of Common
Stock. As of the date of this Agreement, the outstanding shares of
Common Stock are currently quoted on the OTC Bulletin Board.
(t) Absence of Undisclosed
Liabilities. The Company and its Subsidiaries have no
obligations or liabilities of any nature (matured, fixed or contingent) other
than (i) those adequately provided for in the Company’s financial statements
referenced in Section 2.1(u) and (ii) those obligations incurred in the ordinary
course of business in amounts consistent with prior periods which have not had
and will not have a Material Adverse Effect on the Company.
(i) Schedule 2.1(v) sets
forth a true, correct and complete list of all employee benefit plans, programs,
policies and arrangements, whether written or unwritten (the “Company Plans”), that
the Company, any Subsidiary or any other corporation or business which is now or
at the relevant time was a member of a controlled group of companies or trades
or businesses including the Company or any Subsidiary, within the meaning of
section 414 of the Internal Revenue Code of 1986, as amended (the “Code”), maintain or
have maintained on behalf of current or former members, partners, principals,
directors, officers, managers, employees, consultants or other
personnel.
(ii) There
has been no prohibited transaction within the meaning of Section 406 of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section
4975 of the Code, with respect to any of the Company Plans; (ii) none of the
Company Plans is or was subject to Section 412 of the Code or Section 302 or
Title IV of ERISA; and (iv) each of the Company Plans has been operated and
administered in all material respects in accordance with all applicable laws,
including ERISA. There are no actions, suits or claims pending or
threatened (other than routine claims for benefits), whether by participants,
the Internal Revenue Service, the Department of Labor or otherwise, with respect
to any Company Plan and no facts exist under which any such actions, suits or
claims are likely to be brought or under which the Company or any Subsidiary
could incur any liability with respect to a Company Plan other than
in the ordinary course. None of the Company Plans is or was a
multiemployer plan within the meaning of Section 3(37) of ERISA.
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(iii) Neither
the Company nor any Subsidiary has announced, proposed or agreed to any change
in benefits under any Company Plan or the establishment of any new Company
Plan. There have been no changes in the operation or interpretation
of any Company Plan since the most recent annual report, which would have any
material effect on the cost of operating, maintaining or providing benefits
under such Company Plan.
(iv) Neither
the Company nor any Subsidiary has incurred any liability for the
misclassification of employees as leased employees or independent
contractors.
(v) Except
as provided for in this Agreement and in the Transaction Documents, the
consummation of the transactions contemplated by this Agreement, either alone or
in combination with another event, will not (i) result in any individual
becoming entitled to any increase in the amount of compensation or benefits or
any additional payment from the Company or any Subsidiary (including, without
limitation, severance, golden parachute or bonus payments or otherwise), or (ii)
accelerate the vesting or timing of payment of any benefits or compensation
payable in respect of any individual.
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(a) Accredited Investor Status;
Sophisticated Purchaser. The Purchaser is an “accredited
investor” as that term is defined in Rule 501(a) of Regulation D under the 1933
Act. The Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of the Note, the Warrant, the Conversion Shares and the Warrant
Shares. The Purchaser is not registered as a broker or dealer under
Section 15(a) of the 1934 Act, affiliated with any broker or dealer registered
under Section 15(a) of the 1934 Act, or a member of the Financial Industry
Regulatory Authority, Inc. (FINRA).
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ARTICLE
III
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ARTICLE
IV
Section
4.1 Participation in Future
Financings. For so long as at least $1,000,000 aggregate
principal amount of the Notes remains outstanding, the Purchasers shall be
notified at least ten (10) days prior to any proposed equity financing
(including any proposed issuance of convertible debt securities) by the Company
and will be given a ten (10) day option to participate in such proposed
financing, on the same terms as the other proposed investors. In addition, the
Company shall provide the Purchasers with the opportunity to purchase a minimum
of thirty percent (30%) of the securities sold in such proposed
financing.
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Section
4.4 Management
Lock-Up. On or prior to the Initial Closing Date, the Company
will cause Xxxxxxx Xxx to deliver “lock-up” letters substantially in the form of
Exhibit C (the
“Management Lock-up
Agreements”) pursuant to which such persons will agree not to sell any
shares of common stock of the Company until the earlier of (i) the second
anniversary of the Initial Closing date, or (ii) one hundred eighty (180) days
following the date on which the Company’s listing on a Major Stock Exchange (as
defined below) becomes effective.
Section
4.6 Trading Migration and
Reverse Stock Split. The Company covenants and agrees to use
its commercially reasonable efforts to complete a reverse split (the “Reverse Split”) of
its Common Stock within 360 days of the Initial Closing Date sufficient to meet
the minimum share price requirements of a Major Stock Exchange (defined below)
and file for a listing of the Common Stock thereon as soon as practicable
following the consummation of the Reverse Split. For purposes of this
Section 4.6, “Major
Stock Exchange” shall mean the NASDAQ Capital Market, the New York Stock
Exchange, or the NYSE Amex Equities.
ARTICLE
V
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18
This
Agreement, the Notes, the Warrants, the Guaranty, the Pledge Agreement, the
Voting Agreement, and the Management Lock-Up Agreements are sometimes referred
to herein collectively as the “Transaction
Documents”.
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ARTICLE
VI
These
Securities Have Not Been Registered For Offer or Sale Under The Securities Act
Of 1933, As Amended, Or Any State securities laws. They May Not Be
Sold Or Offered For Sale Except Pursuant To An Effective Registration Statement
Under Said Act And Any Applicable State Securities Law Or An Applicable
Exemption From Such Registration Requirements.
The
Company agrees to reissue the Notes and any Conversion Shares and Warrant Shares
without the legend set forth above, at such time as (i) the holder thereof is
permitted to dispose of such Notes, Conversion Shares and Warrant Shares
issuable upon conversion or exercise of the foregoing pursuant to Rule 144(b)(i)
under the 1933 Act, or (ii) such securities are sold to a purchaser or
purchasers who (in the opinion of counsel to the seller or such purchaser(s), in
form and substance reasonably satisfactory to the Company and its counsel) are
able to dispose of such shares publicly without registration under the 1933 Act,
or (iii) such securities have been registered under the 1933 Act.
Prior to
the Registration Statement (as defined below) being declared effective, any
Warrant Shares issued pursuant to exercise of the Warrant shall bear a legend in
the same form as the legend indicated above; provided that such legend shall be
removed from such shares and the Company shall issue new certificates without
such legend if (i) the holder has sold or disposed of such shares pursuant to
Rule 144(b) under the 1933 Act, or the holder is permitted to dispose of such
shares pursuant to Rule 144(b)(i) under the 1933 Act, (ii) such shares are
registered for resale under the 1933 Act, or (iii) such shares are sold to a
purchaser or purchasers who (in the opinion of counsel to the seller or such
purchaser(s), in form and substance reasonably satisfactory to the Company and
its counsel) are able to dispose of such shares publicly without registration
under the 1933 Act. Upon such Registration Statement becoming
effective, the Company agrees to promptly issue new certificates representing
such shares without such legend. Any Warrant Shares issued after the
Registration Statement has become effective shall be free and clear of any
legends, transfer restrictions and stop transfer
orders. Notwithstanding the removal of such legend, the Purchasers
agree to sell the Conversion Shares and Warrant Shares represented by the new
certificates in accordance with the applicable prospectus delivery requirements
(if copies of a current prospectus are provided to such Purchasers by the
Company) or in accordance with an exemption from the registration requirements
of the 1933 Act.
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Nothing
herein shall limit the right of any holder to pledge these securities pursuant
to a bona fide margin account or lending arrangement entered into in compliance
with law, including applicable securities laws.
(a)
”Piggy-Back”
Registration.
(i)
If at any time after the date hereof until the first anniversary of the Initial
Closing Date, the Company shall file a registration statement on Form S-1 or
Form S-3 (or any similar or successor forms promulgated by the Commission)
pursuant to an offering of the Company’s Common Stock or Common Stock
Equivalents, except for an underwritten public offering in which case the
inclusion of Registrable Securities shall be subject to the consent and
allocation of the underwriter, the Company shall include the Conversion Shares
and the Warrant Shares (the “Registrable
Securities”) in such registration statement (the “Registration
Statement”); provided that the
amount of Registrable Securities shall be limited to not less than 100% of the
maximum amount (“Rule
415 Amount”) of Conversion Shares and the Warrant Shares which may be
included in a single registration statement without exceeding registration
limitations imposed by the Commission pursuant to Rule 415 of the Securities
Act; provided,
however, that
such piggy-back rights shall not apply to the registration statement on
Form S-1 (File No. 333-147998) and any amendments thereto.
(ii) the
Company will pay all expenses associated with the registration, including,
without limitation, filing and printing fees, and the Company’s counsel and
accounting fees and expenses, costs, if any, associated with clearing the
Registrable Securities for sale under applicable state securities
laws;
(iii) the
Company shall have the right to delay, including, without limitation, by
delaying the filing or effectiveness of the Registration Statement, the
disclosure of material, non-public information concerning the Company the
disclosure of which at the time is not, in the reasonable opinion of the Company
in the best interest of the Company and, as applicable, suspend sales of
Registrable Securities under an effective registration statement or suspend
trading of its securities on any exchange; and
(iv)
the Company will use commercially reasonable efforts to cause the
Registration Statement with respect to the Purchasers to remain continuously
effective for a period (the “Effectiveness
Period”) that will terminate, with respect to the Purchasers, upon the
earlier of (x) the date on which all the Registrable Securities covered by the
Registration Statement have been sold or (y) the date on which all the
Registrable Securities covered by the Registration Statement may be sold
immediately without registration under the Securities Act and without volume
restrictions pursuant to Rule 144(b), as determined by reputable United States
securities 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 Purchasers, and will advise the
Purchasers when the Effectiveness Period has expired with respect to the
Purchasers.
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(b)
Purchaser
Information. Each Purchaser shall (A) furnish to the Company such
information regarding itself, the Registrable Securities, other securities of
the Company held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably requested by the Company to effect
and maintain the effectiveness of the Registration Statement, (B) execute such
documents in connection with the Registration Statement as the Company may
reasonably request and (C) immediately discontinue disposition of Registrable
Securities pursuant to any registration statement upon notice from the Company
of (x) the issuance of any stop order or other suspension of effectiveness of
the Registration Statement by the Commission, or the suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction
by the applicable regulatory authorities or (y) the happening of any event, as
promptly as practicable after becoming aware of such event, as a result of which
the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading or
(z) the failure of the prospectus included in the Registration Statement,
as then in effect, to comply with the requirements of the Securities Act until
the Purchaser’s receipt of a supplemented or amended prospectus or receipt of
notice that no supplement or amendment is required.
(i) In the event any Registrable
Securities are included in the Registration Statement under this Section 6.2, to
the extent permitted by law, the Company will indemnify and hold harmless the
each of the Purchasers (including their officers, directors, members and
partners), any underwriter (as defined in the Securities Act) for the Purchasers
and each person, if any, who controls such Purchaser or underwriter within the
meaning of the Securities Act or the Exchange Act (each a “Purchaser Indemnified
Person”), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law (“Claims”), insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay to the Purchaser Indemnified Person, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any Claim; provided, however, that the
indemnity agreement contained in this Section 6.2(c)(i) 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), nor shall the Company be liable to any Purchaser
Indemnified Person for any such Claim to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by the Purchaser Indemnified Person. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such Purchaser Indemnified Person and shall survive the transfer of the
Registrable Securities by the Purchasers.
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(ii) In
the event any Registrable Securities are included in the Registration Statement
under this Section 6.2, to the extent permitted by law, each Purchaser shall,
severally and not jointly, indemnify, hold harmless and defend, to the same
extent and in the same manner as is set forth in Section 6.2(c)(i), the Company,
each of its directors, each of its officers who signs the registration statement
and each Person, if any, who controls the Company within the meaning of the 1933
Act or the 1934 Act (each, a “Company Indemnified
Person”), against any Claim, insofar as such Claims arise out of or are
based upon any Violation, in each case to the extent, and only to the extent,
that such Violation occurs in reliance upon and in strict conformity with
written information furnished to the Company by such Purchaser expressly for use
in the Registration Statement; and, subject to Section 6.2(c)(iii), such
Purchaser will reimburse any legal or other expenses reasonably incurred by any
Company Indemnified Person in connection with investigating or defending any
such Claim; provided, however, that the indemnity agreement contained in this
Section 6.2(c)(ii) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the
indemnifying Purchaser, which consent shall not be unreasonably withheld or
delayed. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnified Person and shall
survive the transfer of the Registrable Securities by the
Purchasers.
(iii) Promptly
after receipt by a Purchaser Indemnified Person or Company Indemnified Person
(each, an “Indemnified
Person”) under this Section 6.2 of notice of a Claim, such Indemnified
Person shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6.2, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall, by
giving at written notice to the Indemnified Party within fifteen days after the
Indemnified Party has given notice of the Claim, have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person; provided, however, that an Indemnified Person shall have the right to
retain its own counsel with the fees and expenses of not more than one counsel
for such Indemnified Person to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Purchaser Indemnified Person or Company
Indemnified Person and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person and any
other party represented by such counsel in such proceeding. In the case of any
Company Indemnified Person, legal counsel referred to in the proviso of the
immediately preceding sentence shall be selected by the holders holding at least
a majority in interest of the Registrable Securities included in the
registration statement to which the Claim relates. The Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or Claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
Indemnified Person that relates to such action or Claim. The indemnifying party
shall keep the Indemnified Person reasonably apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its prior written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written consent of the
Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Person of a
full and general release from all liability in respect to such Claim or
litigation, and such settlement (a) shall provide for the payment by the
Indemnifying Party of money as sole relief for the claimant, (b) shall not
include any finding or admission as to fault on the part of the Indemnified
Person and (c) shall have no effect on any other claims that may be made against
the Indemnified Party.
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Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person under
this Section 6.2, except to the extent that the indemnifying party is materially
prejudiced in its ability to defend such action.
ARTICLE
VII
ARTICLE
VIII
Section
8.1 Company
Indemnification. In consideration of the Purchasers’ execution
and delivery of the this Agreement and acquiring the Securities hereunder and in
addition to all of the Company’s other obligations under the Transaction
Documents, the Company shall defend, protect, indemnify and hold harmless the
Purchasers and all of their respective partners, officers, directors, employees,
members and direct or indirect investors and any of the foregoing person’s
agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement)
(collectively, the “Purchaser
Indemnitees”) from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and
expenses in connection therewith (irrespective of whether any such Purchaser
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Purchaser Indemnified
Liabilities”), incurred by any Purchaser Indemnitee as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or
any other certificate or document contemplated hereby or thereby, (b) any breach
of any covenant, agreement or obligation of the Company contained in the
Transaction Documents or any other certificate or document contemplated hereby
or thereby. Notwithstanding the foregoing, Purchaser Indemnified
Liabilities shall not include any liability of any Purchaser Indemnitee arising
out of such Purchaser Indemnitee’s gross negligence or willful
misconduct. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Purchaser
Indemnified Liabilities which is permissible under applicable law.
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ARTICLE
IX
Section
9.1 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts to be
wholly performed within such state and without regard to conflicts of laws
provisions. Any legal action or proceeding arising out of or relating
to this Agreement and/or the Transaction Documents may be instituted in the
courts of the State of New York sitting in New York County or in the United
States of America for the Southern District of New York, and the parties hereto
irrevocably submit to the jurisdiction of each such court in any action or
proceeding. Subscriber hereby irrevocably waives and agrees not to
assert, by way of motion, as a defense, or otherwise, in every suit, action or
other proceeding arising out of or based on this Agreement and/or the
Transaction Documents and brought in any such court, any claim that Subscriber
is not subject personally to the jurisdiction of the above named courts, that
Subscriber’s property is exempt or immune from attachment or execution, that the
suit, action or proceeding is brought in an inconvenient forum or that the venue
of the suit, action or proceeding is improper.
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Section
9.5 Costs and
Expenses. All reasonable out-of-pocket costs and expenses
incurred by Axiom and the Purchasers with respect to this Agreement and the
Offering shall be paid by the Company at the Closing including, without
limitation, legal fees and expenses of up to $60,000. The Company
shall also be responsible for the payment of Axiom’s and the Purchasers’
reasonable post-Closing expenses incurred in connection with the transactions
contemplated by this Agreement. Such post-Closing expenses shall be
paid promptly after Axiom issues a request in writing but in no event later than
two (2) business days following such request.
(a) This
Agreement supersedes all other prior oral or written agreements between the
Purchasers, the Company, their affiliates and persons acting on their behalf
with respect to the matters discussed herein, and this Agreement and the
instruments referenced herein (including the other Transaction Documents)
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters. No
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the Purchasers, and no provision hereof may be
waived other than by an instrument in writing signed by the party against whom
enforcement is sought.
(b) The
Purchasers may at any time elect, by notice to the Company, to waive (whether
permanently or temporarily, and subject to such conditions, if any, as the
Purchasers may specify in such notice) any of Purchasers’ rights under any of
the Transaction Documents to acquire shares of Common Stock from the Company, in
which event such waiver shall be binding against the Purchasers in accordance
with its terms; provided, however, that the
voluntary waiver contemplated by this sentence may not reduce the Purchasers’
obligations to the Company under the Transaction Documents.
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If to the
Company:
Xx.00
Xxxxx Xxxx Xxx Xxxx Xx.
Xxxxxxx
Xxxxxxxx
Xxxxxxx, P.R. China
Fax: (00-00) 0000-0000
Attention: Xxxxxxx
Xxx, Chairman and CEO
With a
copy to:
Xxxxxxx
Xxxxx
Xxxxxxxxxx,
Xxxxxxxxxx & Xxxx XXX
0000
Xxxxx Central Xxxxx Xxxxx 0
Xx. 00
Xxxxxxx Xxxx, Xxxxxxx 000000, Xxxxx
Fax:
(00-00) 0000-0000
If to the
Purchasers, to the addresses listed on Schedule I
hereto:
With a
copy to:
Axiom Capital Management,
Inc.
000 Xxxxx
Xxxxxx, 00xx xxxxx
Xxx Xxxx,
XX 00000-0000
Fax:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxx, President
With a copy to:
Xxxxxxxx Xxxxx & Deutsch
LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx,
Esq.
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Each
party shall provide five (5) days prior written notice to the other party of any
change in address, telephone number or facsimile number. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by an
internationally recognized overnight delivery service, shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a nationally
recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
Section
9.10 Survival. The
representations, warranties, rights to indemnification and agreements of the
Company and the Purchaser contained in the Agreement shall survive the delivery
of the Notes.
Section
9.13 Remedies. The
Purchasers and each Permitted Assignee shall have all rights and remedies set
forth in this Agreement, the Pledge Agreement and the Notes and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any person having any rights under any provision of any such
Transaction Document shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any
breach of any provision thereof and to exercise all other rights granted by
law. The Purchasers and each Permitted Assignee without prejudice may
withdraw, revoke or suspend its pursuit of any remedy at any time prior to its
complete recovery as a result of such remedy.
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[SIGNATURE PAGE
FOLLOWS]
29
IN WITNESS WHEREOF, the
parties hereto have caused this Securities Purchase Agreement to be duly
executed as of the date and year first above written.
COMPANY:
By:_______________________________
Name:
Title:
|
PURCHASER
By:_______________________________
Name:
Title:
|
30