REGISTRATION RIGHTS AGREEMENT CHINA ARCHITECTURAL ENGINEERING, INC. US$10,000,000 VARIABLE RATE CONVERTIBLE BONDS DUE 2012 800,000 WARRANTS EXPIRING 2010 April 12, 2007
Execution
Copy
US$10,000,000
VARIABLE RATE CONVERTIBLE BONDS DUE 2012
800,000
WARRANTS EXPIRING 2010
April
12,
2007
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1.
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CERTAIN
DEFINITIONS
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2.
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REGISTRATION
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3
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3.
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COMPANY
OBLIGATIONS
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5
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4.
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DUE
DILIGENCE REVIEW; INFORMATION
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5.
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OBLIGATIONS
OF THE HOLDERS
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6.
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INDEMNIFICATION
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7.
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MISCELLANEOUS
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This
Registration Rights Agreement (the “Agreement”)
is
made and entered into as of this 12th day of April, 2007.
BY
AND AMONG
1. CHINA
ARCHITECTURAL ENGINEERING, INC.,
a
Delaware corporation (the “Company”),
and
2. ABN
AMRO BANK N.V.
(the
“Investor”).
The
parties hereby agree as follows:
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1.
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CERTAIN
DEFINITIONS
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As
used
in this Agreement, the following terms shall have the following
meanings:
“Affiliate”
means,
with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person. For
the purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”), as applied to any person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies
of
that person, whether through the ownership of voting securities or by contract
or otherwise.
“Business
Day”
means
a
day, other than a Saturday or Sunday, on which banks in New York City are open
for the general transaction of business.
“Closing
Date”
means
the closing date for the Company’s issuance and sale of the Convertible Bonds
(as defined below) pursuant to the Subscription Agreement (as defined below),
and for the Company’s issuance and sale of the Warrants (as defined below)
pursuant to the Subscription Agreement.
“Common
Stock”
means
(a) the Company’s common stock, par value $0.001 per share, and (b) any
securities into which or for which the securities described in (a) above may
be
converted, exchanged or reclassified pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
“Conversion
Shares”
means
the shares of Common Stock issued or issuable upon conversion of any Convertible
Bonds.
“Convertible
Bonds”
means
(a) the Company’s Variable Rate Convertible Bonds due 2012, and (b) any
securities into which or for which the securities described in (a) above may
be
converted, exchanged or reclassified pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise, other than Conversion
Shares.
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“Holders”
means
(a) the Investor, and (b) any Permitted Transferee of the Investor, and (c)
any
subsequent Permitted Transferee of a Holder referred to in (b)
above.
“1933
Act”
means
the U.S. Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means
the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Permitted
Transferee”
means
a
transferee of Registrable Securities who acquires the Registrable Securities
in
a transaction that meets the requirements set forth in the proviso of the second
sentence of Section 7(c) hereof.
“Prospectus”
shall
mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus.
“Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall
mean (i) the Convertible Bonds, (ii) the Warrants, (iii) the Conversion Shares,
and (iv) the Warrant Shares (as defined below); provided, however, that, a
security shall cease to be a Registrable Security upon (A) the sale of such
security pursuant to a Registration Statement or pursuant to Rule 144 under
the
1933 Act, or (B) such security becoming eligible for sale without restriction
pursuant to Rule 144(k) under the 1933 Act.
“Registration
Statement”
shall
mean any registration statement filed by the Company with the SEC for a public
offering and sale of securities of the Company (other than a registration
statement on Form X-0, Xxxx X-0 or successor forms, or any registration
statement relating solely to transactions under Rule 145 of the 1933
Act).
“Required
Holders”
means
Holders holding a majority of the Registrable Securities in respect of the
Convertible Bonds and the Conversion Shares.
“SEC”
means
the U.S. Securities and Exchange Commission or any other federal agency at
the
time administering the 1933 Act.
“Subscription
Agreement”
means
that certain Subscription Agreement dated March 28, 2007 by and among the
Company and the Investor with respect to the issuance and sale of the
Convertible Bonds and the Warrants.
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“Warrant
Shares”
means
the shares of Common Stock issued or issuable upon exercise of the
Warrants.
“Warrants”
means
the warrants to purchase 800,000 shares (subject to adjustment) of Common Stock
of the Company issued to the Investor pursuant to the Subscription
Agreement.
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2.
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REGISTRATION
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(a)
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Shelf
Registration
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(i)
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Initial
Registrable Securities. Promptly following the execution of the
Subscription Agreement and in any event within thirty (30) days thereafter
(the “Filing
Deadline”),
the Company shall prepare and file with the SEC an amendment to the
Registration Statement on Form S-1 (Reg. No. 333-138603) currently
on file
with the SEC to cover the resale of the Registrable Securities. Such
Registration Statement shall include a plan of distribution with
respect
to the Registrable Securities in a form approved by the Holders of
a
majority of the Registrable Securities. Such Registration Statement
also
shall cover, to the extent allowable under the 1933 Act and the rules
promulgated thereunder (including Rule 416), such indeterminate number
of
additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable
Securities. The Company shall cause the Registration Statement as
so
amended to become effective as promptly as possible. Each prospectus
contained in such Registration Statement will conform in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the SEC thereunder, and each such prospectus will not contain
an untrue
statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in
the
light of the circumstances under which they were made, not
misleading.
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(ii)
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Additional
Registrable Securities. Upon any change in (a) the Conversion Price
with
respect to the Convertible Bonds (as defined in the Trust Deed and
Terms
and Conditions executed with respect to the Convertible Bonds (the
“Trust
Deed”)),
or (b) the Subscription Price of the Warrants (as defined in the
Warrants)
or the number of shares of Common Stock issuable upon the exercise
of the
outstanding Warrants (such additional shares of Common Stock referenced
in
(a) and (b) above shall be referred to herein as “Additional
Shares”),
prior to the issuance of any Additional Shares, the Company shall
prepare
and file, as soon as practicable but in any event within thirty (30)
days
of such change, with the SEC one or more Registration Statements
on Form
S-1, or, if available, Form S-3, or amend the Registration Statement
filed
pursuant to clause (i) above, if such Registration Statement has
not
previously been declared effective, covering the resale of the Additional
Shares, but only to the extent the Additional Shares are not at the
time
covered by an effective Registration Statement. Such Registration
Statement also shall cover, to the extent allowable under the 1933
Act and
the rules promulgated thereunder (including Rule 416), such indeterminate
number of additional shares of Common Stock resulting from stock
splits,
stock dividends or similar transactions with respect to the Additional
Shares. The Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness thereof)
shall
be provided in accordance with Section 3(c) to the Holders prior
to its
filing or other submission.
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(iii)
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(b)
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Expenses
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The
Company will pay all expenses associated with each registration, including
filing and printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities for sale
under applicable state securities laws, listing fees, and the fees and expenses
of one counsel for the Holders of Registrable Securities, but excluding
discounts, commissions, fees of underwriters, selling brokers, dealer managers
or similar securities industry professionals with respect to the Registrable
Securities being sold.
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(c)
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Effectiveness
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(i)
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The
Company shall cause each Registration Statement to be declared effective
as soon as practicable, and in any event, (A) within ten (10) business
days of being advised by the SEC that the Registration Statement
will not
be reviewed or is not subject to further review and (B) at 5:00 p.m.
(New
York City time) on the effective date. The Company shall notify the
Holders by facsimile or e-mail as promptly as practicable, and in
any
event, by 9:30 a.m. (New York City time) on the date immediately
following
the effective date, after any Registration Statement is declared
effective
and shall by 9:30 a.m. (New York City time) on the date immediately
following the effective date provide the Holders with an electronic
copy
of any related Prospectus to be used in connection with the sale
or other
disposition of the securities covered thereby. If (A) a Registration
Statement covering the Registrable Securities is not filed by the
Filing
Deadline, or declared effective by the SEC within 365 days following
the
Closing Date, or (B) after a Registration Statement has been declared
effective by the SEC, sales cannot be made pursuant to such Registration
Statement for any reason other than an Allowed Delay (as defined
below)
(including without limitation by reason of a stop order, or the Company’s
failure to update the Registration Statement), but excluding the
inability
of any Holder to sell the Registrable Securities covered thereby
due to
market conditions and except as excused pursuant to subparagraph
(ii)
below, then the Company will be in breach of its obligations
hereunder.
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(ii)
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For
not more than twenty (20) consecutive trading days, or for a total
of not
more than forty-five (45) trading days, in any twelve (12) month
period,
the Company may suspend the use of any Prospectus included in any
registration contemplated by this Section 2 (an “Allowed
Delay”);
provided, however, that the Company shall (a) promptly notify the
Holders
in writing of the existence of the Allowed Delay (but in no event,
without
the prior written consent of a Holder, shall the Company disclose
to such
Holder any of the facts or circumstances regarding any material non-public
information giving rise to an Allowed Delay), (b) promptly advise
the
Holders in writing to cease all sales under the Registration Statement
until the end of the Allowed Delay, (c) use commercially reasonable
efforts to terminate an Allowed Delay as promptly as practicable
and (d)
keep the Registration Statement effective for an additional period
of time
equal to the period of time of the Allowed
Delay.
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3.
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COMPANY
OBLIGATIONS
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The
Company will effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
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(a)
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cause
each Registration Statement to become effective and to remain continuously
effective for a period that will terminate upon the earlier of (i)
the
date on which all Registrable Securities covered by such Registration
Statement as amended from time to time, have been sold thereunder,
pursuant to any other Registration Statement or pursuant to Rule
144 under
the 1933 Act and (ii) the date on which all Registrable Securities
covered
by such Registration Statement may be sold without restriction pursuant
to
Rule 144(k) of the 1933 Act as determined by counsel to the Company
pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders
(assuming for this purpose each Warrant will be exercised for cash)
(the
“Effectiveness
Period”);
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(b)
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promptly
following the date any Registration Statement hereunder is declared
effective by the SEC, prepare and file with the SEC a prospectus
pursuant
to Rule 424 under the 1933 Act;
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(c)
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prepare
and file with the SEC as soon as practicable such amendments and
post-effective amendments to the Registration Statement and the Prospectus
as may be necessary to keep the Registration Statement effective
for the
period specified in Section 3(a) and to comply with the provisions
of the
1933 Act, the 1934 Act, any applicable state securities or blue sky
laws
and the rules and regulations of any securities exchange on which
the
Registrable Securities may be traded or included for quotation, with
respect to the distribution of all of the Registrable Securities
covered
thereby;
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(d)
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provide
(via email or facsimile) copies to and permit the Holders to review
each
Registration Statement and all amendments and supplements thereto
no fewer
than two (2) business days prior to their filing with the SEC and
not file
any document to which a Holder’s counsel reasonably
objects;
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(e)
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furnish
to the Holders (via email or facsimile) (i) promptly after the same
is
prepared and publicly distributed, filed with the SEC, or received
by the
Company one (1) copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment
or
supplement thereto, and each letter written by or on behalf of the
Company
to the SEC or the staff of the SEC, and each item of correspondence
from
the SEC or the staff of the SEC, in each case relating to such
Registration Statement (other than any portion of any thereof which
contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including
a
preliminary prospectus, and all amendments and supplements thereto
and
such other documents as each Holder may reasonably request in order
to
facilitate the disposition of the Registrable Securities owned by
such
Holder that are covered by the related Registration
Statement;
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(f)
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use
(i) its best efforts to prevent the issuance of any stop order or
other
suspension of effectiveness and (ii) its best efforts to, if such
order is
issued, obtain the withdrawal of any such order at the earliest possible
moment;
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(g)
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prior
to any public offering of Registrable Securities, use its best efforts
to
register or qualify or cooperate with the Holders in connection with
the
registration or qualification of such Registrable Securities for
offer and
sale under the securities or blue sky laws of such jurisdictions
requested
by the Holders and do any and all other commercially reasonable acts
or
things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required
in
connection therewith or as a condition thereto to (i) qualify to
do
business in any jurisdiction where it would not otherwise be required
to
qualify but for this Section 3(g), (ii) subject itself to general
taxation
in any jurisdiction where it would not otherwise be so subject but
for
this Section 3(g), or (iii) file a general consent to service of
process
in any such jurisdiction;
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(h)
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cause
all Registrable Securities covered by a Registration Statement to
be
listed on each securities exchange, interdealer quotation system
or other
market on which similar securities issued by the Company are then
listed;
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(i)
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notify
the Holders (via email or facsimile), at any time when a Prospectus
relating to Registrable Securities is required to be delivered under
the
1933 Act, upon discovery that, or upon the happening of any event
as a
result of which, the Prospectus included in a Registration Statement,
as
then in effect, includes an untrue statement of a material fact or
omits
to state any material fact required to be stated therein or necessary
to
make the statements therein not misleading in light of the circumstances
then existing, and promptly prepare and furnish to such holders a
supplement to or an amendment of such Prospectus as may be necessary
so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus shall not include an untrue statement
of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
in
light of the circumstances then
existing;
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(j)
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cooperate
with the Holders who hold Registrable Securities being offered to
facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legend) representing the Registrable Securities
sold pursuant to a Registration Statement and enable such certificates
to
be in such denominations or amounts, as the case may be, as the Holders
may reasonably request and registered in such names as the Holders
may
request;
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(k)
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comply
with all applicable rules and regulations of the SEC under the 1933
Act
and the 1934 Act, take such other actions as may be reasonably necessary
to facilitate the registration of the Registrable Securities hereunder;
and
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(l)
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with
a view to making available to the Holders the benefits of Rule 144
(or its
successor rule) and any other rule or regulation of the SEC that
may at
any time permit the Holders to sell shares of Common Stock to the
public
without registration: (i) make and keep current public information
available, as that term is understood and defined in Rule 144, until
the
expiration of the Effectiveness Period; (ii) file with the SEC in
a timely
manner all reports and other documents required of the Company under
the
1934 Act; and (iii) furnish to each Holder upon request, as long
as such
Holder owns any Registrable Securities, (A) a written statement by
the
Company that it has complied with the reporting requirements of the
1934
Act, (B) copies of the Company’s most recent Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and
(C)
such other information as may be reasonably requested in order to
avail
such Holder of any rule or regulation of the SEC that permits the
selling
of any such Registrable Securities without
registration.
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4.
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DUE
DILIGENCE REVIEW;
INFORMATION
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The
Company shall make available, during normal business hours, for inspection
and
review by the Holders, advisors to and representatives of the Holders (who
may
or may not be affiliated with the Holders and who are reasonably acceptable
to
the Company), all financial and other records, all SEC filings, and all other
corporate documents and properties of the Company as may be reasonably necessary
for the purpose of such review, and subject to the Company’s obligations
pursuant to SEC Regulation FD, cause the Company’s officers and employees,
within a reasonable time period, to supply all such information reasonably
requested by the Holders or any such representative, advisor or underwriter
in
connection with such Registration Statement (including, without limitation,
in
response to all questions and other inquiries reasonably made or submitted
by
any of them), prior to and from time to time after the filing and effectiveness
of the Registration Statement, each for the sole purpose of enabling the Holders
and such representatives, advisors and underwriters and their respective
accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company with respect to the accuracy of such Registration
Statement.
Notwithstanding
the foregoing, the Company shall not disclose material nonpublic information
to
the Holders, or to advisors to or representatives of the Holders, unless prior
to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Holders, such advisors
and
representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Holder wishing to obtain such
information enters into an appropriate confidentiality agreement with the
Company with respect thereto.
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5.
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OBLIGATIONS
OF THE HOLDERS
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(a)
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Each
Holder shall furnish in writing to the Company such information regarding
itself, the Registrable Securities held by it and the intended method
of
disposition of the Registrable Securities held by it, as shall be
reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least ten
(10) days
prior to the first anticipated filing date of any Registration Statement,
the Company shall notify each Holder of the information the Company
requires from such Holder if such Holder elects to have any of the
Registrable Securities held by such Holder included in the Registration
Statement. A Holder shall provide such information to the Company
at least
two (2) Business Days prior to the first anticipated filing date
of such
Registration Statement if such Holder elects to have any of the
Registrable Securities included in the Registration
Statement.
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(b)
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Each
Holder, by its acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company
in
connection with the preparation and filing of a Registration Statement
hereunder, unless such Holder has notified the Company in writing
of its
election to exclude all of its Registrable Securities from such
Registration Statement.
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(c)
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Each
Holder agrees that, upon receipt of any notice from the Company of
either
(i) the commencement of an Allowed Delay pursuant to Section 2(c)(ii)
or
(ii) the happening of an event pursuant to Section 3(h) hereof, such
Holder will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable
Securities, until the Holder’s receipt of the supplemented or amended
prospectus filed with the SEC and until any related post-effective
amendment is declared effective and, if so directed by the Company,
the
Holder shall deliver to the Company (at the expense of the Company)
or
destroy (and deliver to the Company a certificate of destruction)
all
copies in the Holder’s possession of the Prospectus covering the
Registrable Securities current at the time of receipt of such
notice.
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6.
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INDEMNIFICATION
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(a)
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Indemnification
by the Company
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The
Company will indemnify and hold harmless, to the fullest extent permitted by
law, each Holder and its officers, directors, members, employees and agents,
successors and assigns, and each other person, if any, who controls such Holder
within the meaning of the 1933 Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, any preliminary prospectus or final prospectus contained
therein, any amendment or supplement thereof or any “free writing prospectus” as
defined in Rule 405 under the 1933 Act; (ii) any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information
herein called a “Blue
Sky Application”);
(iii)
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;
(iv)
any violation or alleged violation by the Company or its agents of any rule
or
regulation promulgated under the 1933 Act, the 1934 Act, or any other law,
including any state, provincial or foreign securities law, or any rule or
regulation thereunder, applicable to the Company or its agents and relating
to
action or inaction required of the Company in connection with such registration;
(v) any material violation of this Agreement by the Company; or (vi) any failure
to register or qualify the Registrable Securities included in any such
Registration in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on an Holder’s behalf and will reimburse such
Holder, and each such officer, director or member and each such controlling
person for any legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if
and
to the extent that any such loss, claim, damage or liability arises out of
or is
based upon a material untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by such
Holder or any such controlling person in writing specifically for use in such
Registration Statement or Prospectus.
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(b)
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Indemnification
by the Holders
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Each
Holder agrees, severally but not jointly, to indemnify and hold harmless, to
the
fullest extent permitted by law, the Company, its directors, officers,
employees, stockholders and each person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages, liabilities and
expense (including reasonable attorney fees) resulting from any untrue statement
of a material fact or any omission of a material fact required to be stated
in
the Registration Statement or Prospectus or preliminary prospectus or amendment
or supplement thereto or any “free writing prospectus” as defined in Rule 405
under the 1933 Act or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission
is
contained in any information furnished in writing by such Holder to the Company
specifically for inclusion in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of an Holder
be
greater in amount than the dollar amount of the proceeds (net of all expense
paid by such Holder in connection with any claim relating to this Section 6
and
the amount of any damages such Holder has otherwise been required to pay by
reason of such untrue statement or omission) received by such Holder upon the
sale of the Registrable Securities included in the Registration Statement giving
rise to such indemnification obligation.
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(c)
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Conduct
of Indemnification
Proceedings
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Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any person entitled to indemnification hereunder shall have the right
to
employ separate counsel and to participate in the defense of such claim, but
the
fees and expenses of such counsel shall be at the expense of such person unless
(a) the indemnifying party has agreed to pay such fees or expenses, or (b)
the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party
with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice
as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall have
materially adversely affected the indemnifying party in the defense of any
such
claim or litigation. It is understood that the indemnifying party shall not,
in
connection with any proceeding in the same jurisdiction, be liable for fees
or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of
the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
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(d)
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Contribution
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If
for
any reason the indemnification provided for in the preceding paragraphs (a)
and
(b) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result
of
such loss, claim, damage or liability in such proportion as is appropriate
to
reflect the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the 1933
Act
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a Holder
of
Registrable Securities be greater in amount than the dollar amount of the
proceeds (net of all expenses paid by such Holder in connection with any claim
relating to this Section 6 and the amount of any damages such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by such Holder upon the
sale
of the Registrable Securities giving rise to such contribution
obligation.
-10-
|
7.
|
MISCELLANEOUS
|
|
(a)
|
Amendments
and Waivers
|
This
Agreement may be amended only by a writing signed by the Company and the
Required Holders. The Company may take any action herein prohibited, or omit
to
perform any act herein required to be performed by it, only if the Company
shall
have obtained the written consent to such amendment, action or omission to
act,
of the Required Holders.
|
(b)
|
Notices
|
All
notices and other communications provided for or permitted hereunder shall
be
made as set forth in the Trust Deed and the Warrant Instrument.
|
(c)
|
Assignments
and Transfers by Holders
|
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the Holders and their respective successors and assigns. A Holder may transfer
or assign, in whole or from time to time in part, to one or more persons its
rights hereunder in connection with the transfer of Registrable Securities
by
such Holder to such person; provided, however, that such Holder complies with
all laws applicable thereto and provides written notice of assignment to the
Company promptly after such assignment is effected.
|
(d)
|
Assignments
and Transfers by the
Company
|
This
Agreement may not be assigned by the Company (whether by operation of law or
otherwise) without the prior written consent of the Required Holders, provided,
however, that the Company may assign its rights and delegate its duties
hereunder to any surviving or successor corporation in connection with a
reorganization of the Company, a merger or consolidation of the Company with
another corporation, or a sale, transfer or other disposition of all or
substantially all of the Company’s assets to another corporation, without the
prior written consent of the Required Holders, after notice duly given by the
Company to each Holder.
-11-
|
(e)
|
Benefits
of the Agreement
|
The
terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective permitted successors and assigns of the parties. Nothing
in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
|
(f)
|
Counterparts;
Faxes
|
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed and delivered via facsimile,
or
Adobe PDF, either of which shall be deemed an original.
|
(g)
|
Titles
and Subtitles
|
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
|
(h)
|
Severability
|
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law
which
renders any provisions hereof prohibited or unenforceable in any
respect.
|
(i)
|
Further
Assurances
|
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
|
(j)
|
Entire
Agreement
|
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
-12-
|
(k)
|
Governing
Law
|
This
Agreement, as to which time shall be of the essence, shall be governed by and
construed in accordance with the laws of the State of New York.
|
(l)
|
Jurisdiction
|
Subject
to the following paragraph, the Company agrees for the benefit of the Holders
that the courts of England are to have exclusive jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement and
accordingly submit to the exclusive jurisdiction of the courts of
England.
The
Holders may take any suit, action or proceedings (together referred to as
Proceedings) against the Company in any other court of competent jurisdiction
and concurrent Proceedings in any number of jurisdictions. The Company hereby
appoints The
London Law Agency
at its
registered office for the time being in England, to accept service of any
Proceedings on its behalf.
|
(m)
|
Invalidity
|
If
any
provision in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law, such
provision or part shall to that extent be deemed not to form part of this
Agreement but the legality, validity and enforceability of the remainder of
this
Agreement shall not be affected.
|
(n)
|
Independent
Nature of Holders’ Obligations and
Rights
|
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to
be
joined as an additional party in any action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened, for such
purpose.
[The
remainder of the page is left blank]
-13-
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
The
Company
| By: | /s/ Luo Xxx Xx | |||
| Name: |
Luo Xxx Xx |
|||
| Title: | Chief Executive Officer, Chief Operating Officer and Chairman of the Board |
The
Investor
ABN
AMRO BANK, N.V.
By:
[SIGNATURE OF AUTHORIZED PERSON]
Name:
Title:
