SHINER INTERNATIONAL, INC. FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
FORM
OF
REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of October ___, 2007,
is made by and between SHINER INTERNATIONAL, INC., a Nevada corporation (the
“Company”), and the undersigned investor (the “Investor”).
WHEREAS,
in connection with that certain Subscription Agreement by and among the Company
and the Investor (the “Subscription Agreement”), the Company desires to sell to
the Investor, and the Investor desires to purchase from the Company units
of (a)
shares of the Company’s common stock, $0.001 par value per share (the “Common
Stock”); and (b) Warrants to purchase additional shares of Common Stock (the
“Warrants”) equal to 15% of the Common Stock initially purchased;
and
WHEREAS,
to induce the Investor to purchase the Common Stock and Warrants, the Company
has agreed to register the shares of Common Stock purchased and the Common
Stock
underlying the Warrants pursuant to the terms of this Agreement.
NOW,
THEREFORE, the Company and the Investor hereby covenant and agree as
follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Commission”
shall mean the Securities and Exchange Commission, or any other federal agency
at the time administering the Securities Act.
“Effectiveness
Date” shall mean that date which is one hundred eighty (180) days following the
closing of the Offering.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
“Filing
Date” shall mean that date which is sixty (60) days following the final closing
of the Offering.
“Offering”
shall refer to the Company’s proposal to sell Units for $3.00 per unit, with
each Unit consisting of (i) one share of Common Stock of the Company and
(ii) a
three (3) year Warrant to purchase 15% of one share of Common Stock of the
Company with an initial exercise price of $6.00. The total amount of Units
being
offered is 3,500,000 for a total maximum purchase price of $10,500,000 USD.
“Register,”
“registered” and “registration” each shall refer to a registration effected by
preparing and filing a Registration Statement or statements or similar documents
in compliance with the Securities Act and the declaration or ordering of
effectiveness of such Registration Statement or document by the
Commission.
“Registrable
Securities” shall mean the shares of Common Stock issued pursuant to the
Subscription Agreement or upon the exercise of the Warrants delivered as
part of
the Offering; provided, however, that shares of Common Stock which are
Registrable Securities shall cease to be Registrable Securities (x) upon
any
sale pursuant to a Registration Statement or Rule 144 under the Securities
Act
or (y) at such time as they become eligible for sale pursuant to Rule 144
under
the Securities Act or another similar exemption under the Securities
Act.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
Capitalized
terms used but not defined herein shall have the meanings set forth in the
Subscription Agreement or the Warrants.
2. Automatic
Registration.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
the Registration Statement covering the resale of all of the Registrable
Securities for an offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement required hereunder shall be on Form SB-2.
Subject to the terms of this Agreement, the Company shall use its commercially
reasonable efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof,
but
in any event not later than the Effectiveness Date, and shall use its
commercially reasonable efforts to keep the Registration Statement continuously
effective under the Securities Act until the date when all Registrable
Securities covered by the Registration Statement have been sold or may be
sold
pursuant to Rule 144 as determined by the counsel to the Company pursuant
to a
written opinion letter to such effect, addressed and acceptable to the Company’s
transfer agent and the Investor (the “Effectiveness Period”).
(b) If:
(i) a
Registration Statement is not filed on or prior to the Filing Date, or (ii)
the
Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act, within 5 trading
days of the date that the Company is notified (orally or in writing, whichever
is earlier) by the Commission that a Registration Statement will not be
“reviewed,” or is not subject to further review, or (iii) a Registration
Statement filed or required to be filed hereunder is not declared effective
by
the Commission on or before the Effectiveness Date as a result of the failure
of
the Company to meet its obligations with respect to such filing as provided
for
herein, or (iv) after a Registration Statement is first declared effective
by
the Commission, it ceases for any reason to remain continuously effective
as to
the Registrable Securities held by the Investor, or the Investor is not
permitted to utilize the Prospectus therein to resell such Registrable
Securities, for in any such case 15 consecutive trading days but no more
than an
aggregate of 25 trading days during any 12-month period (which need not be
consecutive trading days) during which the Investor is not permitted to sell
such Registrable Securities under Rule 144 (any such failure or breach being
referred to as an “Event,” and for purposes of clause (i) or (iii) the date on
which such Event occurs, or for purposes of clause (ii) the date on which
such 5
trading day period is exceeded, or for purposes of clause (iv) the date on
which
such 15- or 25-day period, as applicable, is exceeded being referred to as
“Event Date”), then: (x) on the first Event Date to occur the Company shall pay
to such Investor an amount in cash, as liquidated damages and not as a penalty,
equal to 2.0% of the aggregate purchase price paid by such Investor pursuant
to
the Subscription Agreement for any Registrable Securities then held by such
Investor
for
which
such Investor has not received liquidated damages pursuant to Section 2(c)
below;
and (y)
on each anniversary of such Event Date (if the applicable Event, or any
subsequent Event, shall not have been cured by such date) until all Event(s)
are
cured, the Company shall pay to such Investor an amount in cash, as liquidated
damages and not as a penalty, equal to 2.0% of the aggregate purchase price
paid
by such Investor pursuant to the Subscription Agreement for any Registrable
Securities then held by such Investor for
which
such Investor has not received liquidated damages pursuant to Section 2(c)
below.
If the
Company fails to pay any liquidated damages pursuant to this Section in full
within seven days after the date payable, the Company will pay interest thereon
at a rate of 15% per annum (or such lesser maximum amount that is permitted
to
be paid by applicable law) to the Investor, accruing daily from the date
such
liquidated damages are due until such amounts, plus all such interest thereon,
are paid in full. The liquidated damages pursuant to the terms hereof shall
apply on a daily pro-rata basis for any portion of a year prior to the cure
of
an Event.
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(c) Notwithstanding
any other provision of this Section 2, if the Commission determines that
the number of securities that the Company may register on the Registration
Statement pursuant to Rule 415 is limited such that the shares so registered
thereunder shall exclude any Registrable Securities held by the Investor,
then
the Company shall promptly so advise the Investor and the Company shall use
commercially reasonable efforts to effect the registration of any Registrable
Securities not so included on the Registration Statement as a result thereof
as
soon as is legally possible to do so. In such event, the Company shall pay
to
such Investor liquidated damages as set forth in Section 2(b) hereof with
respect to any Registrable Securities then held by the Investor that were
not registered by the Effectiveness Date.
(d) The
parties acknowledge and agree that (i) the maximum amount of damages that
the
Company shall be obligated to pay the Investor for any and all breaches of
this
Section 2 is the amount of liquidated damages set forth in Section 2(b) or
2(c),
and (ii) such liquidated damages shall be the sole remedy available to Investor
for any breach of this Agreement, provided that nothing in this Section 2(d)
shall preclude Investor from seeking injunctive relief, including specific
performance of its rights under this Section 2.
3. Registration
Procedures.
If and
whenever the Company is required by the provisions of Section 2 hereof to
use
its commercially reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare
and file with the Commission the Registration Statement with respect to such
securities and use its reasonable best efforts to cause such Registration
Statement to become effective in an expeditious manner;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection therewith as
may be
necessary to keep such Registration Statement continuously effective during
the
Effectiveness Period and comply with the provisions of the Securities Act
with
respect to the disposition of all Registrable Securities covered by such
Registration Statement in accordance with the intended method of disposition
set
forth in such Registration Statement for such period;
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(c) furnish
to each seller of Registrable Securities and to each underwriter such number
of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the intended disposition of the Registrable Securities
covered by such Registration Statement;
(d) use
its
commercially reasonable efforts (i) to register or qualify the Registrable
Securities covered by such Registration Statement under the securities or
“blue
sky” laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter,
reasonably shall request, (ii) to prepare and file in those jurisdictions
such
amendments (including post-effective amendments) and supplements, and take
such
other actions, as may be necessary to maintain such registration and
qualification in effect at all times for the period of distribution contemplated
thereby and (iii) to take such further action as may be necessary or advisable
to enable the disposition of the Registrable Securities in such jurisdictions,
provided, that the Company shall not for any such purpose be required to
qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process
in any
such jurisdiction;
(e) use
its
commercially reasonable efforts to list the Registrable Securities covered
by
such Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately
notify each seller of Registrable Securities and each underwriter under such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event
of which the Company has knowledge as a result of which the prospectus contained
in such Registration Statement, as then in effect, includes any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of
the circumstances then existing and promptly amend or supplement such
Registration Statement to correct any such untrue statement or
omission;
(g) promptly
notify each seller of Registrable Securities of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
or
the initiation of any proceedings for that purpose and make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
time;
(h) if
the
offering is an underwritten offering, enter into a written agreement with
the
managing underwriter selected in the manner herein provided in such form
and
containing such provisions as are usual and customary in the securities business
for such an arrangement between such underwriter and companies of the Company’s
size and investment stature, including, without limitation, customary
indemnification and contribution provisions;
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(i) if
the
offering is an underwritten offering, at the request of any seller of
Registrable Securities, use its commercially reasonable efforts to furnish
to
such seller on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (i) a copy of an opinion
dated such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, stating that such Registration
Statement has become effective under the Securities Act and that (A) to the
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted
or are
pending or contemplated under the Securities Act, (B) the Registration
Statement, the related prospectus and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as
to
financial statements or other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by
counsel
for the underwriters; and (ii) a copy of a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within
the
meaning of the Securities Act and that, in the opinion of such accountants,
the
financial statements of the Company included in the Registration Statement
or
the prospectus, or any amendment or supplement thereof, comply as to form
in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business
days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(j) take
all
actions reasonably necessary to facilitate the timely preparation and delivery
of certificates (not bearing any legend restricting the sale or transfer
of such
securities) representing the Registrable Securities to be sold pursuant to
the
Registration Statement and to enable such certificates to be in such
denominations and registered in such names as the Investor or any underwriters
may reasonably request; and
(k) take
all
other reasonable actions necessary to expedite and facilitate the registration
of the Registrable Securities pursuant to the Registration
Statement.
4. Obligations
of Investor.
The
Investor shall furnish to the Company such information regarding such Investor,
the number of Registrable Securities owned and proposed to be sold by it,
the
intended method of disposition of such securities and any other information
as
shall be required to effect the registration of the Registrable Securities,
and
cooperate with the Company in preparing the Registration Statement and in
complying with the requirements of the Securities Act.
5. Expenses.
(a) All
expenses incurred by the Company in complying with Sections 2 and 3 including,
without limitation, all registration and filing fees (including the fees
of the
Securities and Exchange Commission and any other regulatory body with which
the
Company is required to file), printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or “blue sky” laws, and fees of transfer agents and registrars are
called “Registration Expenses.” All underwriting discounts and selling
commissions applicable to the sale of Registrable Securities are called “Selling
Expenses.”
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(b) The
Company will pay all Registration Expenses in connection with any Registration
Statement filed hereunder, and the Selling Expenses in connection with each
such
Registration Statement shall be borne by the participating sellers in proportion
to the number of Registrable Securities sold by each or as they may otherwise
agree.
6. Indemnification
and Contribution.
(a) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to the terms
of
this Agreement, the Company will indemnify and hold harmless and pay and
reimburse, each seller of such Registrable
Securities thereunder, each underwriter of such Registrable Securities
thereunder and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities
Act,
against any losses, claims, damages or liabilities,
joint or several, to which such seller, underwriter or controlling person
may
become subject under the Securities Act
or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
any Registration Statement under which
such Registrable Securities were registered under the Securities Act pursuant
hereto or any preliminary prospectus or final prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon 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 any violation or alleged violation of the Securities Act or any state
securities or blue sky laws and will reimburse
each such seller, each such underwriter and each such controlling person
for any
legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided,
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 the Company’s reliance on an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any such seller, any such underwriter or any
such
controlling person in writing specifically for use in such Registration
Statement or prospectus.
(b) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant hereto each seller of such Registrable Securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning
of the
Securities Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person
who
controls any underwriter within the meaning of the Securities Act, against
all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon
reliance on any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement
under which such Registrable Securities were registered under the Securities
Act
pursuant hereto or,
any
preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon 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, and will reimburse the Company and
each
such officer, director, underwriter,
and
controlling person for any legal or other expenses reasonably incurred by
them
in connection with investigating or defending any
such
loss, claim, damage, liability or action, provided, that such seller will
be
liable hereunder in any such case if and only
to
the extent that any such loss, claim, damage or liability arises out of or
is
based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such Registration Statement or prospectus,
and provided that, the liability of each seller hereunder shall be limited
to
the proceeds received by such seller from
the
sale of Registrable Securities covered by such Registration Statement.
Notwithstanding the foregoing, the indemnity provided in this Section 6(b)
shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of
such
indemnified party and provided further, that the Company shall
not
be liable in any such case to the extent that any such loss, claim, damage
or
liability (or action in respect thereof) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission in such Registration
Statement, which untrue statement or alleged untrue statement or omission
or
alleged omission is completely corrected in an amendment or supplement to
the
Registration Statement and the undersigned indemnitees thereafter fail to
deliver or cause to be delivered such Registration Statement as so amended
or
supplemented prior to or concurrently with the sale of the Registrable
Securities to the person asserting such loss, claim, damage or liability
(or
actions in respect thereof) or expense after the Company has furnished the
undersigned with the same.
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(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to such indemnified party
other
than under this Section 6 and shall only relieve it from any liability which
it
may have to such indemnified party under this Section 6 if and to the extent
the
indemnifying party is materially prejudiced by such omission. In case any
such
action shall be brought against any indemnified party and it shall notify
the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided
that if
the defendants in any such action include both the indemnified party and
the
indemnifying party and the indemnified party shall have reasonably concluded
based upon written advise of its counsel that there may be reasonable defenses
available to it which are different from or additional to those available
to the
indemnifying party or if the interests of the indemnified party reasonably
may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of
such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party
as
incurred.
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(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
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but it is judicially determined (by the entry of a final judgment or decree
by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this
Section
6; then, and in each such case, the Company and such holder will contribute
to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such
holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the Registration
Statement bears to the public offering price of all securities offered by
such
Registration Statement, and the Company is responsible for the remaining
portion; provided, that, in any such case, (A) no such holder will be required
to contribute any amount in excess of the public offering price of all such
Registrable Securities offered by it pursuant to such Registration Statement
and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 12 (f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
7. Changes
in Capital Stock.
If, and
as often as, there is any change in the capital stock of the Company by way
of a
stock split, stock dividend, combination or reclassification, or through
a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that
the
rights and privileges granted hereby shall continue as so changed.
8. Representations
and Warranties of the Company.
The
Company represents and warrants to the Investor as follows:
(a) The
execution, delivery and performance of this Agreement by the Company have
been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Articles of Incorporation or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties
or
assets is bound, conflict with, result in a breach of or constitute (with
due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien,
charge
or encumbrance of any nature whatsoever upon any of the properties or assets
of
the Company or its subsidiaries.
(b) This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency
or
other laws affecting the rights of creditors generally and to general equitable
principles and the availability of specific performance.
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9. Rule
144 Requirements.
The
Company agrees to:
(a) make
and
keep current public information about the Company available, as those terms
are
understood and defined in Rule 144;
(b) use
its
commercially reasonable efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities
Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish
to any holder of Registrable Securities upon request (i) a written statement
by
the Company as to its compliance with the reporting requirements of Rule 144 and
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
10. Termination.
All of
the Company’s obligations to register Registrable Shares under Sections 2 and 3
hereto shall terminate upon the date on which the Investor holds no Registrable
Securities or all of the Registrable Securities are eligible for resale under
Rule 144.
11. Miscellaneous.
(a) All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including without limitation
transferees of any Registrable Securities), whether so expressed or
not.
(b) All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by telecopier, addressed (i) if to
the
Company, at Shiner International, Inc., 19/F Didu Building Pearl River Plaza,
No. 2 North Longkun Road, Haikou, Hainon Province, China 570125, Attn: Mr.
Fu
Jian, CEO, phone ▇▇-▇▇▇-▇▇▇▇▇▇▇▇, facsimile ▇▇-▇▇▇-▇▇▇▇▇▇▇▇; and (ii) if
to any
holder of Registrable Securities, to it at such address as may have been
furnished to the Company in writing by such holder; or, in any case, at such
other address or addresses as shall have been furnished, in writing to the
Company (in the case of a holder of Registrable Securities) or to the holders
of
Registrable Securities (in the case of the Company) in accordance with the
provisions of this paragraph.
(c) This
Agreement shall be governed by and construed under the laws of the Commonwealth
of Pennsylvania as applied to agreements among Pennsylvania residents entered
into and to be performed entirely within Pennsylvania. The Company (1) agrees
that any legal suit, action or proceeding arising out of or relating to this
Agreement shall be instituted exclusively in any state court located in
Philadelphia, Pennsylvania, or in the United States District Court for the
Eastern District of Pennsylvania, (2) waives any objection which the Company
may
have now or hereafter to the venue of any such suit, action or proceeding,
and
(3) irrevocably consents to the jurisdiction of any state court located in
Philadelphia, Pennsylvania, and the United States District Court for the
Eastern
District of Pennsylvania in any such suit, action or proceeding. The Company
further agrees to accept and acknowledge service of any and all process which
may be served in any such suit, action or proceeding in any state court located
in Philadelphia, Pennsylvania, or in the United States District Court for
the
Eastern District of Pennsylvania and agrees that service of process upon
the
Company mailed by certified mail to the Company’s address shall be deemed in
every respect effective service of process upon the Company, in any such
suit,
action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF
THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
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(d) In
the
event of a breach by the Company or by the Investor, of any of their obligations
under this Agreement, the Investor or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and the Investor
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(e) This
Agreement may not be amended or modified without the written consent of the
Company and the Investor.
(f) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate
as a
waiver thereof. No waiver shall be effective unless and until it is in writing
and signed by the party granting the waiver.
(g) 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, once executed by a party, may be delivered to
the
other party hereto by facsimile transmission of a copy of this Agreement
bearing
the signature of the party so delivering this Agreement.
(h) If
any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach
only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement
shall
be carried out as if any such illegal, invalid or unenforceable provision
were
not contained herein.
(i) This
Agreement constitutes the entire contract among the Company and the Investor
relative to the subject matter hereof and supersedes in its entirety any
and all
prior agreements, understandings and discussions with respect
thereto.
10
(j) The
headings of the sections of this Agreement are for convenience and shall
not by
themselves determine the interpretation of this Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
11
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
COMPANY
By:
_________________________________
Name:
Fu
Jian
Title:
Chief Executive Officer
INVESTOR
_____________________________
By:
__________________________________
Name:
Title: