4,800,000 ORDINARY SHARES GOLDEN GREEN ENTERPRISES LIMITED UNDERWRITING AGREEMENT
EXECUTION
COPY
4,800,000
ORDINARY SHARES
GOLDEN
GREEN ENTERPRISES LIMITED
November
9,
2009
MAXIM
GROUP LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
As
Representative of the Underwriters
named
on Schedule A
hereto
Ladies
and Gentlemen:
Golden
Green Enterprises Limited, a corporation organized and existing under the laws
of the British Virgin Islands (the “Company”), confirms its
agreement, subject to the terms and conditions set forth herein, with each of
the underwriters listed on Exhibit A hereto
(collectively, the “Underwriters”), for whom Maxim
Group LLC is acting as representative (in such capacity, the “Representative”), to sell and
issue to the Underwriters an aggregate of 4,800,000 ordinary shares, no par
value (the “Ordinary
Shares”) of the Company (the "Firm Shares"). The
Firm Shares are more fully described in the Registration Statement and
Prospectus referred to below.
The
offering and sale of the Ordinary Shares contemplated by this underwriting
agreement (this “Agreement”) is referred to
herein as the “Offering.”
1.1 Firm Shares; Over-Allotment
Option.
(a) Purchase of Firm
Shares. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell, severally and not jointly, to the several
Underwriters, an aggregate of 4,800,000 Firm Shares of the Company at a purchase
price (net of discounts and commissions) of $4.65 per Firm Share. The
Underwriters, severally and not jointly, agree to purchase from the Company the
number of Firm Shares set forth opposite their respective names on Schedule A attached
hereto and made a part hereof at a purchase price (net of discounts and
commissions) of $4.65 per Firm Share. In addition, the Company shall
pay the Underwriters a corporate finance fee equal to one percent (1%), or $0.05
per Firm Share. The corporate finance fee shall be paid to the
Underwriters for the structuring of the terms of the Offering.
Maxim
Group LLC
November
9, 2009
Page 2 of
43
(b) Payment and
Delivery. Delivery and payment for the Firm Shares shall be
made at 10:00 A.M., New York time, on the third Business Day following the
effective date (the “Effective
Date”) of the Registration Statement (or the fourth Business Day
following the Effective Date, if the Registration Statement is declared
effective after 4:30 p.m.) or at such earlier time as shall be agreed upon by
the Representative and the Company at the offices of the Representative or at
such other place as shall be agreed upon by the Representative and the
Company. The hour and date of delivery and payment for the Firm Shares is
called the “Closing
Date.” The closing
of the payment of the purchase price for, and delivery of certificates
representing, the Firm Shares is referred to herein as the “Closing.” Payment for the Firm Shares
shall be made on the Closing Date at the Representative’s election by wire
transfer in Federal (same day) funds or by certified or bank cashier’s check(s)
in New York Clearing House funds. Any remaining proceeds (less
commissions, expense allowance and actual expense payments or other fees payable
pursuant to this Agreement) shall be paid to the order of the Company upon
delivery to you of certificates (in form and substance satisfactory to the
Underwriters) representing the Firm Shares (or through the full fast transfer
facilities of the Depository Trust Company (the “DTC”)) for the account of the
Underwriters. The Firm Shares shall be registered in such name or names
and in such authorized denominations as the Representative may request in
writing at least two Business Days prior to the Closing Date. The Company
will permit the Representative to examine and package the Firm Shares for
delivery, at least one full Business Day prior to the Closing Date. The
Company shall not be obligated to sell or deliver the Firm Shares except upon
tender of payment by the Representative for all the Firm Shares.
(c) Option Shares.
For the purposes of covering any over-allotments in connection with the
distribution and sale of the Firm Shares, the Representative on behalf of the
Underwriters is, hereby granted, an option to purchase up to an additional 15%
of the number of Firm Shares or 720,000 shares (the "Option Shares") to be offered
by the Company in the Offering (the “Over-allotment
Option”). The Firm Shares and the Option Shares are
hereinafter collectively referred to as the “Shares”. The Shares
and the Representative’s Securities (as hereinafter defined) are referred to as
(the “Securities”). The
purchase price to be paid for the Option Shares (net of discounts and
commissions) will be $4.65 per Option Share. In addition, the Company
shall pay the Underwriters a corporate finance fee equal to one percent (1%), or
$0.05 per Option Share. The corporate finance fee shall be paid to
the Underwriters for the structuring of the terms of the Offering.
(d) Exercise of
Option. The Over-allotment Option granted pursuant to
Section 1.1(c) hereof may be exercised by the Representative as to all (at
any time) or any part (from time to time) of the Option Shares within 45 days
after the Effective Date. The Underwriters will not be under any
obligation to purchase any Option Shares prior to the exercise of the
Over-allotment Option. The Over-allotment Option granted hereby may be
exercised by the giving of oral notice to the Company from the Representative,
which must be confirmed in writing by overnight mail or facsimile transmission
setting forth the number of Option Shares to be purchased and the date and time
for delivery of and payment for the Option Shares, which will not be later than
five Business Days
after the date of the notice or such other time as shall be agreed upon by the
Company and the Representative, at the offices of the Representative or at such
other place as shall be agreed upon by the Company and the Representative.
If such delivery and payment for the Option Shares does not occur on the Closing
Date, the date and time of the closing for such Option Shares will be as set
forth in the notice (hereinafter the “Option Closing Date”).
Upon exercise of the Over-allotment Option, the Company will become obligated to
convey to the Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the number of Option
Shares specified in such notice.
Maxim
Group LLC
November
9, 2009
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43
(e) Payment and Delivery of
Option Shares. Payment for the Option Shares shall be made on the
Option Closing Date at the Representative’s election by wire transfer in Federal
(same day) funds or by certified or bank cashier’s check(s) in New York Clearing
House funds, by deposit of the price per Option Share to the Company upon
delivery to the Underwriters of certificates (in form and substance satisfactory
to the Underwriters) representing the Option Shares (or through the full fast
transfer facilities of DTC) for the account of the Underwriters. The
certificates representing the Option Shares to be delivered will be in such
denominations and registered in such names as the Representative requests not
less than two Business Days prior to the Closing Date or the Option Closing
Date, as the case may be, and will be made available to the Representative for
inspection, checking and packaging at the aforesaid office of the Company’s
transfer agent or correspondent not less than one full Business Day prior to
such Closing Date or Option Closing Date.
(f) Representative's
Warrants. As additional consideration, the Company hereby agrees to
issue and sell to the Representative (and/or their respective designees) on the
Effective Date warrants (the “Representative's Warrants”)
for the purchase of an aggregate of 144,000 Ordinary Shares (3% of the number of
Firm Shares) for an aggregate purchase price of $100.00. The
Representative's Warrants shall be exercisable, in whole or in part, commencing
on the date that is nine months from the Effective Date and expiring on the
five-year anniversary of the Effective Date at an initial exercise price per
share of $6.00, which is equal to one hundred and twenty percent (120%) of the
public offering price of a Share. The Representative's Warrants and
the Ordinary Shares issuable upon exercise of the Representative’s Warrants are
hereinafter referred to collectively as the “Representative’s
Securities.”
2. Representations and
Warranties of the Company.
2.1 The
Company represents, warrants and covenants to, and agrees with, each of the
Underwriters that, as of the date hereof and as of the Closing
Date:
Maxim
Group LLC
November
9, 2009
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(a) The
Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a
registration statement on Form F-1 (Registration No. 333-161924), and amendments
thereto, and related preliminary prospectuses for the registration under the
Securities Act of 1933, as amended (the “Securities Act”), of the
Securities which registration statement, as so amended (including post-effective
amendments, if any), has been declared effective by the Commission and copies of
which have heretofore been delivered to the Underwriters. The
registration statement, as amended at the time it became effective, including
the prospectus, financial statements, schedules, exhibits and other information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act, is hereinafter
referred to as the “Registration
Statement.” If the Company has filed or is required pursuant
to the terms hereof to file a registration statement pursuant to Rule 462(b)
under the Securities Act registering additional Ordinary Shares (a “Rule 462(b) Registration
Statement”), then, unless otherwise specified, any reference herein to
the term “Registration Statement” shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration
Statement, which, if filed, becomes effective upon filing, no other document
with respect to the Registration Statement has heretofore been filed with the
Commission. All of the Securities have been registered under the
Securities Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the Securities
Act with the filing of such Rule 462(b) Registration Statement. The
Company has responded to all requests of the Commission for additional or
supplemental information. Based on communications from the
Commission, no stop order suspending the effectiveness of either the
Registration Statement or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or threatened
by the Commission. The Company, if required by the Securities Act and
the rules and regulations of the Commission (the “Rules and Regulations”),
proposes to file the Prospectus with the Commission pursuant to Rule 424(b)
under the Securities Act (“Rule
424(b)”). The prospectus, in the form in which it is to be
filed with the Commission pursuant to Rule 424(b), or, if the prospectus is not
to be filed with the Commission pursuant to Rule 424(b), the prospectus in the
form included as part of the Registration Statement at the time the Registration
Statement became effective, is hereinafter referred to as the “Prospectus,” except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule
424(b)), the term “Prospectus” shall also refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus
or prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 under the Securities Act is
hereafter called a “Preliminary
Prospectus.” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the exhibits incorporated by reference therein pursuant to the
Rules and Regulations on or before the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be. Any reference herein to the terms
“amend”, “amendment” or “supplement” with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include: (i) the filing of any document under the Securities Exchange Act of
1934, as amended, and together with the Rules and Regulations promulgated
thereunder (the “Exchange
Act”) after the effective date of the Registration Statement, the date of
such Preliminary Prospectus or the date of the Prospectus, as the case may be,
which is incorporated therein by reference, and (ii) any such document so
filed. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus and
the Prospectus, or any amendments or supplements to any of the foregoing shall
be deemed to include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
Maxim
Group LLC
November
9, 2009
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(b) The
Company has filed with the Commission a Form 8-A (File Number 001-34532)
providing for the registration under the Exchange Act of the Ordinary
Shares. The registration of the Ordinary Shares under the Exchange
Act has been declared effective by the Commission on the date
hereof.
(c) At
the time of the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement or the effectiveness of any post-effective amendment to
the Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b), when any supplement to or amendment of the
Prospectus is filed with the Commission, when any document filed under the
Exchange Act was or is filed, at all other subsequent times until the completion
of the public offer and sale of the Securities, and at the Closing Date (as
hereinafter defined), if any, the Registration Statement and the Prospectus and
any amendments thereof and supplements or exhibits thereto complied or will
comply in all material respects with the applicable provisions of the Securities
Act, the Exchange Act and the Rules and Regulations, and did not and will not
contain an untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein: (i) in the case of the Registration Statement, not
misleading, and (ii) in the case of the Prospectus in light of the circumstances
under which they were made, not misleading. When any Preliminary
Prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Securities or any amendment
thereto or pursuant to Rule 424(a) under the Securities Act) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this
subsection (b), however, with respect to any information contained in or omitted
from the Registration Statement or the Prospectus or any related Preliminary
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representative specifically for use
therein. The parties acknowledge and agree that such information
provided by or on behalf of any Underwriter consists solely of the subsections
of the “Underwriting” section of the Prospectus captioned “Stabilization,”
"Pricing of Securities," the last sentence of "Other Matters" and the
penultimate paragraph on the cover page of the Preliminary Prospectus and the
Prospectus (the “Underwriters’
Information”).
(d) Neither:
(i) any Issuer-Represented General Free Writing Prospectus(es) (as defined
below) issued at or prior to the Time of Sale (as defined below) and the
Statutory Prospectus (as defined below), all considered together (collectively,
the “General Disclosure
Package”), nor (ii) any individual Issuer-Represented Limited-Use Free
Writing Prospectus(es) (as defined below), when considered together with the
General Disclosure Package, includes or included as of the Time of Sale, any
untrue statement of a material fact or omits or omitted as of the Time of Sale
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any
Statutory Prospectus included in the Registration Statement or any
Issuer-Represented Free Writing Prospectus (as defined below) based upon and in
conformity with written information furnished to the Company by the
Representative specifically for use therein.
Maxim
Group LLC
November
9, 2009
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(e) Each
Issuer-Represented Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or notifies the
Representative as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, any Statutory Prospectus or
the Prospectus. If at any time following issuance of an
Issuer-Represented Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer-Represented Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement, any Statutory Prospectus or the Prospectus relating to the Securities
or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company has notified or will notify promptly the
Representative so that any use of such Issuer-Represented Free Writing
Prospectus may cease until it is promptly amended or supplemented by the
Company, at its own expense, to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer-Represented Free Writing Prospectus
based upon and in conformity with written information furnished to the Company
by the Representative specifically for use therein.
(f) The
Company has not distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the Securities
other than the General Disclosure Package or the Prospectus or other materials
permitted by the Act to be distributed by the Company. Unless the
Company obtains the prior consent of the Representative, the Company has not
made and will not make any offer relating to the Securities that would
constitute an “issuer free writing prospectus,” as defined in Rule 433 under the
Act, or that would otherwise constitute a “free writing prospectus,” as defined
in Rule 405 under the Act, required to be filed with the
Commission. The Company has complied and will comply with the
requirements of Rules 164 and 433 under the Act applicable to any
Issuer-Represented Free Writing Prospectus as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities, including timely filing with the Commission where required,
legending and record keeping. The Company has satisfied and will
satisfy the conditions in Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show.
Maxim
Group LLC
November
9, 2009
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(g) Each
Underwriter agrees that, unless it obtains the prior written consent of the
Company, it will not make any offer relating to the Securities that would
constitute an Issuer-Represented Free Writing Prospectus (as defined below) or
that would otherwise (without taking into account any approval, authorization,
use or reference thereto by the Company) constitute a “free writing prospectus”
required to be filed by the Company with the Commission (as defined herein) or
retained by the Company under Rule 433 of the Securities Act; provided that the
prior written consent of the Company hereto shall be deemed to have been given
in respect of any Issuer-Represented General Free Writing Prospectuses
referenced on Schedule
C attached hereto
As used
in this Agreement, the terms set forth below shall have the following
meanings:
(i) “Time of Sale” means 4:30 P.M.
(Eastern time) on the date of this Agreement.
(ii) “Statutory Prospectus” as of
any time means the prospectus that is included in the Registration Statement
immediately prior to that time. For purposes of this definition,
information contained in a form of prospectus that is deemed retroactively to be
a part of the Registration Statement pursuant to Rule 430A or 430B shall be
considered to be included in the Statutory Prospectus as of the actual time that
form of prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act.
(iii) “Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Securities that (A) is required to be
filed with the Commission by the Company, or (B) is exempt from filing pursuant
to Rule 433(d)(5)(i) under the Act because it contains a description of the
Securities or of the offering that does not reflect the final terms or pursuant
to Rule 433(d)(8)(ii) because it is a “bona fide electronic road show,” as
defined in Rule 433 of the Regulations, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule 433(g) under the
Act.
(iv) “Issuer-Represented General Free
Writing Prospectus” means any Issuer-Represented Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced
by its being specified in Schedule C to this Agreement.
(v) “Issuer-Represented Limited-Use Free
Writing Prospectus” means any Issuer-Represented Free Writing Prospectus
that is not an Issuer-Represented General Free Writing
Prospectus. The term Issuer-Represented Limited-Use Free Writing
Prospectus also includes any “bona fide electronic road show,” as defined in
Rule 433 of the Regulations, that is made available without restriction pursuant
to Rule 433(d)(8)(ii), even though not required to be filed with the
Commission.
(h) UHY
VOCATION HK CPA LIMITED (“UHY”), whose reports
relating to the Company are included in the Registration Statement, are
independent public accountants as required by the Securities Act, the Exchange
Act and the Rules and Regulations and, to the Company's knowledge, such
accountants are not in violation of the auditor independence requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“Sarb-Ox”).
Maxim
Group LLC
November
9, 2009
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(i) Subsequent
to the respective dates as of which information is presented in the Registration
Statement, the General Disclosure Package and the Prospectus, and except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus: (i) the Company has not declared, paid or made any dividends or
other distributions of any kind on or in respect of its capital stock, and (ii)
there has been no material adverse change (or, to the knowledge of the Company,
any development which has a high probability of involving a material adverse
change in the future), whether or not arising from transactions in the ordinary
course of business, in or affecting: (A) the business, condition (financial or
otherwise), results of operations, shareholders’ equity, properties or prospects
of the Company and its Subsidiaries (as defined below), taken as a whole; (B)
the long-term debt or capital stock of the Company or any of its Subsidiaries;
or (C) the Offering or consummation of any of the other transactions
contemplated by this Agreement, the Registration Statement, the General
Disclosure Package and the Prospectus (a “Material Adverse
Change”). Since the date of the latest balance sheet presented
in the Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any Subsidiary has incurred or undertaken
any liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions, including
any acquisition or disposition of any business or asset, which are material to
the Company and the Subsidiaries taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Registration Statement
and the Prospectus.
(j) As
of the dates indicated in the Registration Statement, the General Disclosure
Package and the Prospectus, the authorized, issued and outstanding shares of
capital stock of the Company were as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus in the column headed “Actual”
under the section thereof captioned “Capitalization” and, after giving effect to
the Offering and the other transactions (excluding the offer and sale of the
Over-allotment Shares) contemplated by this Agreement, the Registration
Statement, the General Disclosure Package and the Prospectus, will be as set
forth in the column headed “As Adjusted” in such section. All of the
issued and outstanding shares of capital stock of the Company, including the
outstanding Units and Warrants of the Company, are fully paid and non-assessable
and have been duly and validly authorized and issued, in compliance with all
applicable state, federal and foreign securities laws and not in violation of or
subject to any preemptive or similar right that does or will entitle any Person
(as defined below), upon the issuance or sale of any security, to acquire from
the Company or any Subsidiary any Relevant Security. As used herein,
the term “Relevant
Security” means any Ordinary Shares or other security of the Company or
any Subsidiary that is convertible into, or exercisable or exchangeable for
Ordinary Shares or equity securities, or that holds the right to acquire any
Ordinary Shares or equity securities of the Company or any Subsidiary or any
other such Relevant Security, except for such rights as may have been fully
satisfied or waived prior to the effectiveness of the Registration
Statement. As used herein, the term “Person” means any foreign or
domestic individual, corporation, trust, partnership, joint venture, limited
liability company or other entity. Except as set forth in, or
contemplated by, the Registration Statement, the General Disclosure Package and
the Prospectus, on the Effective Date and on the Closing Date, there will be no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued Ordinary Shares or any security convertible into
Ordinary Shares, or any contracts or commitments to issue or sell Ordinary
Shares or any such options, warrants, rights or convertible
securities.
Maxim
Group LLC
November
9, 2009
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(k) The
Shares have been duly and validly authorized and, when issued, delivered and
paid for in accordance with this Agreement on the Closing Date, will be
duly and validly issued, fully paid and non-assessable, will have been issued in
compliance with all applicable state, federal and foreign securities laws and
will not have been issued in violation of or subject to any preemptive or
similar right that does or will entitle any Person to acquire any Relevant
Security from the Company or any Subsidiary upon issuance or sale of the Shares
in the Offering. The Ordinary Shares conform to the descriptions
thereof contained in the Registration Statement, the General Disclosure Package
and the Prospectus. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, neither the
Company nor any Subsidiary has outstanding warrants, options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, any Relevant Security.
(l) The
Ordinary Shares underlying the Representative's Warrants have been duly
authorized for issuance, will conform to the description thereof in the
Registration Statement and in the Prospectus and have been validly reserved for
future issuance and will, upon exercise of the Representative's Warrants and
payment of the exercise price thereof, be duly and validly issued, fully paid
and non-assessable and will not have been issued in violation of or subject to
preemptive or similar rights to subscribe for or purchase securities of the
Company. The issuance of such securities is not subject to any
statutory preemptive rights under the laws of the British Virgin Islands or the
Company's organization documents as in effect at the time of issuance, rights of
first refusal or other similar rights of any securityholder of the Company
(except for such preemptive or contractual rights as were waived).
(m) The
subsidiaries of the Company (the "Subsidiaries") are Wealth Rainbow Development
Limited, a company organized under the laws of Hong Kong ("Wealth Rainbow"), which is
owned 100% by the Company, and Henan Green Complex Materials Co., Ltd. ("Henan Green"), a company
organized under the laws of the People's Republic of China (the "PRC"), which is owned 100% by
Wealth Rainbow. Wealth Rainbow and Henan Green are the only
subsidiaries of the Company within the meaning of Rule 405 under the Securities
Act. Except for the Subsidiaries, the Company holds no ownership or
other interest, nominal or beneficial, direct or indirect, in any corporation,
partnership, joint venture or other business entity. Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, all of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and are owned,
directly or indirectly, by the Company, free and clear of any lien, charge,
mortgage, pledge, security interest, claim, equity, trust or other encumbrance,
preferential arrangement, defect or restriction of any kind whatsoever (any
“Lien”). No
director, officer or key employee of the Company named in the Prospectus holds
any direct equity, debt or other pecuniary interest in any Subsidiary or any
Person with whom the Company or any Subsidiary does business or is in privity of
contract with, other than, in each case, indirectly through the ownership by
such individuals of Ordinary Shares.
Maxim
Group LLC
November
9, 2009
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(n) Each
of the Company and the Subsidiaries has been duly incorporated, formed or
organized, and validly exists as a corporation, partnership or limited liability
company in good standing under the laws of its jurisdiction of incorporation,
formation or organization. Each of the Company and the Subsidiaries
has all requisite power and authority to carry on its business as it is
currently being conducted and as described in the Registration Statement, the
General Disclosure Package and the Prospectus, and to own, lease and operate its
respective properties. Each of the Company and the Subsidiaries is
duly qualified to do business and is in good standing as a foreign corporation,
partnership or limited liability company in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except, in
each case, for those failures to be so qualified or in good standing which
(individually and in the aggregate) would not reasonably be expected to have a
material adverse effect on: (i) the business, condition (financial or
otherwise), results of operations, shareholders’ equity, properties or prospects
of the Company and the Subsidiaries, taken as a whole; (ii) the long-term debt
or capital stock of the Company or any Subsidiary; or (iii) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement, the General Disclosure Package and the Prospectus
(any such effect being a “Material Adverse
Effect”).
(o) Neither
the Company nor any Subsidiary: (i) is in violation of its certificate or
articles of incorporation, memorandum and articles of association, by-laws,
certificate of formation, limited liability company agreement, joint venture
agreement, partnership agreement or other organizational documents, (ii) is in
default under, and no event has occurred which, with notice or lapse of time or
both, would constitute a default under or result in the creation or imposition
of any Lien upon any of its property or assets pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is in violation in any respect of any law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, foreign or domestic,
except (in the case of clause (ii) above) for any Lien disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(p) The
Company has full right, power and authority to execute and deliver this
Agreement, the Representative's Warrants and all other agreements, documents,
certificates and instruments required to be delivered pursuant to this
Agreement. The Company has duly and validly authorized this
Agreement, the Representative's Warrants and each of the transactions
contemplated by this Agreement and the Representative's
Warrants. This Agreement and the Representative's Warrants have been
duly and validly executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company and are enforceable against the
Company in accordance with their terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
Maxim
Group LLC
November
9, 2009
Page 11
of 43
(q) The
execution, delivery, and performance of this Agreement, the Representative's
Warrants and all other agreements, documents, certificates and instruments
required to be delivered pursuant to this Agreement, and consummation of the
transactions contemplated by this Agreement do not and will not: (i) conflict
with, require consent under or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any Lien upon any property or assets of the Company or any
Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
or their respective properties, operations or assets may be bound or (ii)
violate or conflict with any provision of the certificate or articles of
incorporation, by-laws, certificate of formation, limited liability company
agreement, partnership agreement or other organizational documents of the
Company or any Subsidiary, or (iii) violate or conflict with any law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, domestic or foreign,
except in the case of subsections (i) and (iii) for any default, conflict or
violation that would not have or reasonably be expected to have a Material
Adverse Effect.
(r) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, each of the Company and the Subsidiaries has all consents,
approvals, authorizations, orders, registrations, qualifications, licenses,
filings and permits of, with and from all judicial, regulatory and other legal
or governmental agencies and bodies and all third parties, foreign and domestic
(collectively, the “Consents”), to own, lease and
operate its properties and conduct its business as it is now being conducted and
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, and each such Consent is valid and in full force and
effect. Neither the Company nor any Subsidiary has received notice of
any investigation or proceedings which results in or, if decided adversely to
the Company or any Subsidiary, could reasonably be expected to result in, the
revocation of, or imposition of a materially burdensome restriction on, any
Consent. No Consent contains a materially burdensome restriction not
adequately disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus.
(s) Each
of the Company and the Subsidiaries is in compliance with all applicable laws,
rules, regulations, ordinances, directives, judgments, decrees and orders,
foreign and domestic, except for any non-compliance the consequences of which
would not have or reasonably be expected to have a Material Adverse
Effect. Neither the Company, nor any of its Affiliates (within the
meaning of Rule 144 under the Securities Act) (“Affiliates”) has received any
notice or other information from any regulatory or other legal or governmental
agency which could reasonably be expected to result in any default or potential
decertification by the Company, or any of its Affiliates.
Maxim
Group LLC
November
9, 2009
Page 12
of 43
(t) No
Consent of, with or from any judicial, regulatory or other legal or governmental
agency or body or any third party, foreign or domestic is required for the
execution, delivery and performance of this Agreement, the Representative's
Warrants or consummation of each of the transactions contemplated by this
Agreement, including the issuance, sale and delivery of the Securities to be
issued, sold and delivered hereunder, except the registration under the
Securities Act of the Securities, which has become effective, and such Consents
as may be required under state securities or blue sky laws or the by-laws and
rules of the Nasdaq Global Market, where the Ordinary Shares has been approved
for listing, and the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the
purchase and distribution of the Securities by the Underwriters, each of which
has been obtained and is in full force and effect.
(u) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which, individually or in the aggregate, if determined adversely to the Company
or any Subsidiary, would reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no such proceeding, litigation or
arbitration is threatened or contemplated; and the defense of all such
proceedings, litigation and arbitration against or involving the Company or any
Subsidiary would not reasonably be expected to have a Material Adverse
Effect.
(v) The
financial statements, including the notes thereto, and the supporting schedules
included in the Registration Statement, the General Disclosure Package and the
Prospectus comply in all material respects with the requirements of the
Securities Act, the Exchange Act and present fairly the financial position as of
the dates indicated and the cash flows and results of operations for the periods
specified of the Company and its consolidated Subsidiaries. Except as
otherwise stated in the Registration Statement, the General Disclosure Package
and the Prospectus, said financial statements have been prepared in conformity
with United States generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except in the case of
unaudited financials which are subject to normal year end adjustments and do
not contain certain footnotes. The supporting schedules
included in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information required to be stated
therein. No other financial statements or supporting schedules are
required to be included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus. The
other financial and statistical information included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the
information included therein and have been prepared on a basis consistent with
that of the financial statements that are included in the Registration
Statement, the General Disclosure Package and the Prospectus and the books and
records of the respective entities presented therein.
Maxim
Group LLC
November
9, 2009
Page 13
of 43
(w) There
are no pro forma or as adjusted financial statements which are required to be
included in the Registration Statement, the General Disclosure Package and the
Prospectus in accordance with Regulation S-X which have not been included as so
required. The pro forma and pro forma as adjusted financial
information included in the Registration Statement, the General Disclosure
Package and the Prospectus has been properly compiled and prepared in accordance
with the applicable requirements of the Securities Act and the Rules and
Regulations and include all adjustments necessary to present fairly in
accordance with generally accepted accounting principles the pro forma and as
adjusted financial position of the respective entity or entities presented
therein at the respective dates indicated and their cash flows and the results
of operations for the respective periods specified. The assumptions
used in preparing the pro forma and pro forma as adjusted financial information
included in the Registration Statement, the General Disclosure Package and the
Prospectus provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein. The related pro forma and pro forma as adjusted adjustments
give appropriate effect to those assumptions; and the pro forma and pro forma as
adjusted financial information reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(x) The
statistical, industry-related and market-related data included in the
Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the sources from
which they are derived.
(y) The
Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act and files reports with the Commission on the ▇▇▇▇▇
system. The Ordinary Shares are registered pursuant to Section 12(b)
or 12(g) of the Exchange Act and the outstanding Ordinary Shares, Units and
Warrants are listed on the Nasdaq Global Market. The Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Ordinary Shares under the Exchange Act or de-listing the
Ordinary Shares, Units and Warrants from the Nasdaq Global Market, nor has the
Company received any notification that the Commission or Nasdaq Stock Exchange
is contemplating terminating such registration or
listing. Since January 1, 2007, the Company has timely filed
all reports, schedules, forms, statements and other documents required to be
filed by it with the Commission pursuant to the reporting requirements of the
Exchange Act (all of the foregoing, and all other documents and registration
statements heretofore filed by the Company with the Commission being hereinafter
referred to as the “SEC
Documents”). None of the SEC Documents, at the time they were
filed with the Commission (except those SEC Documents that were subsequently
amended), contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the financial
statements of the Company included (or incorporated by reference) in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect thereto
(except those SEC Documents that were subsequently amended).
Maxim
Group LLC
November
9, 2009
Page 14
of 43
(z) The
Company has established and maintains disclosure controls and procedures (as
defined in Rules 13a-14 and 15d-14 under the Exchange Act) and such controls and
procedures are effective in ensuring that material information relating to the
Company, including its subsidiaries, is made known to the principal executive
officer and the principal financial officer. The Company has utilized
such controls and procedures in preparing and evaluating the disclosures in the
Registration Statement, in the General Disclosure Package and in the
Prospectus.
(aa) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, the Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with United States generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Registration
Statement, the General Disclosure Package or in the Prospectus, since January 1,
2007, there has been no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(bb) Intentionally
Omittted.
(cc) The
Company’s Board of Directors has validly appointed an audit committee whose
composition satisfies the requirements of the rules and regulations of the
Nasdaq Stock Market and the Board of Directors and/or audit committee has
adopted a charter that satisfies the requirements of the rules and regulations
of the Nasdaq Stock Market. The audit committee has reviewed the
adequacy of its charter within the past twelve months. Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Board of Directors nor the audit committee has been informed,
nor is any director of the Company aware, of: (i) any significant deficiencies
and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal control over financial reporting.
(dd) Neither
the Company nor any of its Affiliates has taken, directly or indirectly, any
action which constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Securities.
Maxim
Group LLC
November
9, 2009
Page 15
of 43
(ee) Neither
the Company nor any of its Affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Securities Act or the Rules and Regulations with the offer and sale of
the Securities pursuant to the Registration Statement. Except as
disclosed in the Registration Statement, the General Disclosure Package, the
Prospectus, neither Company nor any of its Affiliates has sold or issued any
Relevant Security during the six-month period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than Ordinary Shares issued
pursuant to employee benefit plans, qualified stock option plans or the employee
compensation plans or pursuant to outstanding options, rights or warrants as
described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(ff) All
information contained in the questionnaires completed by each of the Company’s
officers and directors immediately prior to the Offering and provided to the
Representative as well as the biographies of such individuals in the
Registration Statement is true and correct in all material respects and the
Company has not become aware of any information which would cause the
information disclosed in the questionnaires completed by the directors and
officers to become inaccurate and incorrect.
(gg) No
director or officer of the Company is subject to any non-competition agreement
or non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be and act in his respective capacity of the
Company.
(hh) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Securities contemplated hereby, and
any such rights so disclosed have either been fully complied with by the Company
or effectively waived by the holders thereof, and any such waivers remain in
full force and effect.
(ii) The
conditions for use of Form F-1 to register the Offering under the Securities
Act, as set forth in the General Instructions to such Form, have been
satisfied.
(jj) The
Company is not and, at all times up to and including consummation of the
transactions contemplated by this Agreement, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an “investment company” under the Investment Company Act of
1940, as amended, and is not and will not be an entity “controlled” by an
“investment company” within the meaning of such act.
Maxim
Group LLC
November
9, 2009
Page 16
of 43
(kk) No relationship, direct or indirect,
exists between or among any of the Company or any Affiliate of the Company, on
the one hand, and any director, officer, shareholder, customer or supplier of
the Company or any affiliate of the Company, on the other hand, which is
required by the Securities Act, the Exchange Act or the Rules and Regulations to
be described in the Registration Statement or the Prospectus which is not so
described as required. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company or any of their respective
family members, except as described in the Registration Statement, the General
Disclosure Package and the Prospectus. The Company has not, in
violation of the Sarb-Ox directly or indirectly, including through a Subsidiary
(other than as permitted under the Sarb-Ox for depositary institutions),
extended or maintained credit, arranged for the extension of credit, or renewed
an extension of credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(ll) The
Company is in material compliance with the provisions of Sarb-Ox and the Rules
and Regulations promulgated thereunder and related or similar rules and
regulations promulgated by the Nasdaq Stock Market or any other governmental or
self regulatory entity or agency, except for such violations which, singly or in
the aggregate, would not have a Material Adverse Effect. Without
limiting the generality of the foregoing: (i) all members of the Company’s board
of directors who are required to be “independent” (as that term is defined under
applicable laws, rules and regulations), including, without limitation, all
members of the audit committee of the Company’s board of directors, meet the
qualifications of independence as set forth under applicable laws, rules and
regulations and (ii) the audit committee of the Company’s board of directors has
at least one member who is an “audit committee financial expert” (as that term
is defined under applicable laws, rules and regulations).
(mm) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, there are no contracts, agreements or understandings between the
Company and any Person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder’s fee or other like
payment in connection with the transactions contemplated by this Agreement or,
to the Company’s knowledge, any arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of its officers,
directors, shareholders, partners, employees, Subsidiaries or Affiliates that
may affect the Underwriters’ compensation as determined by FINRA.
(nn) The
Company and each Subsidiary owns or leases all such properties as are necessary
to the conduct of its business as presently operated and as proposed to be
operated as described in the Registration and the Prospectus. The
Company and the Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them, in each case free and clear of all Liens except such as are described in
the Registration Statement, the General Disclosure Package and the Prospectus or
such as do not (individually or in the aggregate) materially affect the business
or prospects of the Company or any of the Subsidiaries. Any real
property and buildings held under lease or sublease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material to, and do not interfere with, the use
made and proposed to be made of such property and buildings by the Company and
the Subsidiaries. Neither the Company nor any Subsidiary has received
any notice of any claim adverse to its ownership of any real or personal
property or of any claim against the continued possession of any real property,
whether owned or held under lease or sublease by the Company or any
Subsidiary.
Maxim
Group LLC
November
9, 2009
Page 17
of 43
(oo) The
Company and each Subsidiary: (i) owns or possesses adequate right to use all
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses, formulae,
customer lists, and know-how and other intellectual property (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, “Intellectual Property”)
necessary for the conduct of their respective businesses as being conducted and
as described in the Registration Statement, the General Disclosure and
Prospectus and (ii) have no knowledge that the conduct of their respective
businesses do or will conflict with, and they have not received any notice of
any claim of conflict with, any such right of others. Except as set
forth in the Registration Statement, the General Disclosure Package or the
Prospectus, neither the Company nor any Subsidiary has granted or assigned to
any other Person any right to sell the current products and services of the
Company and its Subsidiaries or those products and services described in the
Registration Statement and Prospectus. To the Company’s best
knowledge, there is no infringement by third parties of any such Intellectual
Property; there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s or any
Subsidiary’s rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; and
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company or any Subsidiary infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other fact which
would form a reasonable basis for any such claim.
(pp) The
agreements and documents described in the Registration Statement, the General
Disclosure Package and the Prospectus conform to the descriptions thereof
contained therein and there are no agreements or other documents required to be
described in the Registration Statement, the General Disclosure Package or the
Prospectus or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement
or other instrument (however characterized or described) to which the Company is
a party or by which its property or business is or may be bound or affected and
(i) that is referred to in the Registration Statement, the General Disclosure
Package or the Prospectus or attached as an exhibit thereto, or (ii) is material
to the Company’s business, has been duly and validly executed by the Company, is
in full force and effect in all material respects and is enforceable against the
Company and, to the Company’s knowledge, the other parties thereto, in
accordance with its terms, except (x) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the foreign, federal and state securities laws,
and (z) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought, and
none of such agreements or instruments has been assigned by the Company, and
neither the Company nor, to the Company’s knowledge, any other party is in
breach or default thereunder and, to the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a breach or default thereunder. To the Company’s
knowledge, performance by the Company of the material provisions of such
agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company or
any of its assets or businesses, including, without limitation, those relating
to environmental laws and regulations.
Maxim
Group LLC
November
9, 2009
Page 18
of 43
(qq) No
securities of the Company have been sold by the Company or by or on behalf of,
or for the benefit of, any person or persons controlling, controlled by, or
under common control with the Company since the date of the Company’s formation,
except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus.
(rr) The
disclosures in the Registration Statement, the General Disclosure Package and
the Prospectus concerning the effects of foreign, federal, state and local
regulation on the Company’s business as currently contemplated are correct in
all material respects and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading.
(ss) Each
of the Company and the Subsidiaries has accurately prepared and timely filed all
federal, state, foreign, including the PRC, and other tax returns that are
required to be filed by it and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
Subsidiary is obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return). No
deficiency assessment with respect to a proposed adjustment of the Company’s or
any Subsidiary’s federal, state, local or foreign, including the PRC, taxes is
pending or, to the Company’s knowledge, threatened. The accruals and
reserves on the books and records of the Company and the Subsidiaries in respect
of tax liabilities for any taxable period not finally determined are adequate to
meet any assessments and related liabilities for any such period and, since the
date of the Company’s most recent audited financial statements, the Company and
the Subsidiaries have not incurred any liability for taxes other than in the
ordinary course of its business. There is no tax lien, whether
imposed by any federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company or any
Subsidiary. Neither the Company nor any Subsidiary is required to
make any tax filings in the British Virgin Islands.
(tt) No
labor disturbance by the employees of the Company or any Subsidiary currently
exists or, to the Company’s knowledge, is likely to occur.
Maxim
Group LLC
November
9, 2009
Page 19
of 43
(uu) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, the Company and each Subsidiary have at all times operated their
respective businesses in material compliance with all Environmental Laws, and no
material expenditures are or will be required in order to comply
therewith. Neither the Company nor any Subsidiary has received any
notice or communication that relates to or alleges any actual or potential
violation or failure to comply with any Environmental Laws that will result in a
Material Adverse Effect. As used herein, the term “Environmental Laws” means all
applicable laws and regulations, including any licensing, permits or reporting
requirements, and any action by a federal state or local government entity
pertaining to the protection of the environment, protection of public health,
protection of worker health and safety, or the handling of hazardous materials,
including without limitation, the Clean Air Act, 42 U.S.C. § 7401, et seq., the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. § 9601, et seq., the Federal Water Pollution Control Act, 33 U.S.C. §
1321, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 690-1, et seq.,
and the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. or similar laws
and regulations, to the extent applicable, under the laws and regulations of the
PRC.
(vv) Except
as set forth in the Registration Statement, the General Disclosure Package or
the Prospectus, neither the Company nor any Subsidiary is a party to an
“employee benefit plan,” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974 (“ERISA”) or similar rules and
regulations of the PRC which: (i) is subject to any provision of ERISA or such
rules and regulations of the PRC and (ii) is or was at any time maintained,
administered or contributed to by the Company or any Subsidiary and covers any
employee or former employee of the Company or any Subsidiary or any ERISA
Affiliate (as defined hereafter). These plans are referred to
collectively herein as the “Employee
Plans.” For purposes of this Section, “ERISA Affiliate” of any person
or entity means any other person or entity which, together with that person or
entity, could be treated as a single employer under Section 414(m) of the
Internal Revenue Code of 1986, as amended (the “Code”), or is an “affiliate,”
whether or not incorporated, as defined in Section 407(d)(7) of ERISA, of the
person or entity.
(ww) The
Registration Statement, the General Disclosure Package and the Prospectus
identify each employment, severance or other similar agreement, arrangement or
policy and each material plan or arrangement providing for insurance coverage
(including any self-insured arrangements), workers’ compensation, disability
benefits, severance benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits or for deferred compensation, profit-sharing,
bonuses, stock options, stock appreciation or other forms of incentive
compensation, or post-retirement insurance, compensation or benefits which: (i)
is not an Employee Plan, (ii) is entered into, maintained or contributed to, as
the case may be, by the Company or any Subsidiary or any of their respective
ERISA Affiliates, and (iii) covers any employee or former employee of the
Company or any Subsidiary or any of their respective ERISA
Affiliates. These contracts, plans and arrangements are referred to
collectively in this Agreement as the “Benefit Arrangements.” Each
Benefit Arrangement has been maintained in substantial compliance with its terms
and with requirements prescribed by any and all statutes, orders, rules and
regulations that are applicable to that Benefit Arrangement.
Maxim
Group LLC
November
9, 2009
Page 20
of 43
(xx) Except
as set forth in the Registration Statement, the General Disclosure Package or
the Prospectus, there is no liability in respect of post-retirement health and
medical benefits for retired employees of the Company or any Subsidiary or any
of their respective ERISA Affiliates other than medical benefits required to be
continued under applicable law, determined using assumptions that are reasonable
in the aggregate, over the fair market value of any fund, reserve or other
assets segregated for the purpose of satisfying such liability (including for
such purposes any fund established pursuant to Section 40 1(h) of the
Code). With respect to any of the Company’s or any Subsidiaries’
Employee Plans which are “group health plans” under Section 4980B of the Code
and Section 607(1) of ERISA, there has been material compliance with all
requirements imposed there under such that the Company or any Subsidiary or
their respective ERISA Affiliates have no (and will not incur any) loss,
assessment, tax penalty, or other sanction with respect to any such
plan.
(yy) As
set forth in the Registration Statement, the General Disclosure Package or the
Prospectus, neither the Company nor any Subsidiary is a party to or subject to
any employment contract or arrangement providing for annual future compensation,
or the opportunity to earn annual future compensation (whether through fixed
salary, bonus, commission, options or otherwise) of more than $120,000 to any
officer, consultant, director or employee.
(zz) The
execution of this Agreement, the Representative's Warrants or consummation of
the Offering does not constitute a triggering event under any Employee Plan or
any other employment contract, whether or not legally enforceable, which (either
alone or upon the occurrence of any additional or subsequent event) will or may
result in any payment (of severance pay or otherwise), acceleration, increase in
vesting, or increase in benefits to any current or former participant, employee
or director of the Company or any Subsidiary other than an event that is not
material to the financial condition or business of the Company or any
Subsidiary, either individually or taken as a whole.
(aaa) No
“prohibited transaction” (as defined in either Section 406 of the ERISA or
Section 4975 of Code), “accumulated funding deficiency” (as defined in Section
302 of ERISA) or other event of the kind described in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement under
Section 4043 of ERISA has been waived) has occurred with respect to any employee
benefit plan for which the Company or any Subsidiary would have any liability;
each employee benefit plan of the Company or any Subsidiary is in compliance in
all material respects with applicable law, including (without limitation) ERISA
and the Code; the Company has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from any “pension plan”; and each employee benefit plan of the
Company or any Subsidiary that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by action or by
failure to act, which could cause the loss of such qualification.
Maxim
Group LLC
November
9, 2009
Page 21
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(bbb) Neither
the Company, any Subsidiary nor, to the Company’s knowledge, any of their
respective employees or agents has at any time during the last five (5) years:
(i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, including the
PRC, or other Person charged with similar public or quasi-public duties, other
than payments that are not prohibited by the laws of the United States of any
jurisdiction thereof.
(ccc) The Company has not offered, or caused the Underwriters
to offer, the Firm Shares to any Person or entity with the intention of
unlawfully influencing: (i) a customer or supplier of the Company or any
Subsidiary to alter the customer’s or supplier’s level or type of business with
the Company or any Subsidiary or (ii) a journalist or publication to write or
publish favorable information about the Company, any Subsidiary or its products
or services.
(ddd) As
of the date hereof and as of the Closing Date, and except as contemplated by
this Agreement, neither the Company nor any Subsidiary operates within the
United States or any state or territory thereof in such a manner so as to
subject the Company or its operations or businesses to registration as a foreign
company doing business in any state within the United States or to any of the
following laws in any material respect: (i) the Bank Secrecy Act, as amended,
(ii) the Uniting and Strengthening of America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, as amended, (iii) the
Foreign Corrupt Practices Act of 1977, as amended, (iv) the Currency and Foreign
Transactions Reporting Act of 1970, as amended, (v) the Employee Retirement
Income Security Act of 1974, as amended, (vi) the Money Laundering Control Act
of 1986, as amended (vii) the rules and regulations promulgated under any such
law, or any successor law, or any judgment, decree or order of any applicable
administrative or judicial body relating to such law and (viii) any
corresponding law, rule, regulation, ordinance, judgment, decree or order of any
state or territory of the United States or any administrative or judicial body
thereof.
(eee) The
operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial record keeping and reporting
requirements and money laundering statutes of the PRC and the United States and,
to the Company’s knowledge, all other jurisdictions to which the Company and its
Subsidiaries are subject, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by
any applicable governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(fff) Except
as set forth in the Registration Statement and the Prospectus, no holders of any
securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the
Company to register any such securities of the Company under the Act or to
include any such securities in a registration statement to be filed by the
Company.
Maxim
Group LLC
November
9, 2009
Page 22
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(ggg) Neither
the Company nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company (as such term is defined under Rule 144
under the Securities Act, an “Affiliate”) is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any joint venture partner or other
person or entity, for the purpose of
financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(hhh) Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the establishment
of Henan Green and the acquisition of the equity interest of Henan Green by
Wealth Rainbow in 2008 fully complied with the PRC laws and regulations and all
the necessary approvals and registrations for Wealth Rainbow’s acquisition of
the equity interest in Henan Green had been obtained.
(iii) None of the entities or natural persons
holding any shares or other equity securities of the Company, directly or
indirectly, immediately before the Offering, is a PRC resident which shall be
subject to the approval and registration requirements under the PRC laws and
regulations in connection with its holding of shares or equity securities in the
Company, including the Notice on Issues Relating to Administration of Foreign
Exchange in Fund-raising and Reverse Investment Activities of Domestic Residents
Conducted via Offshore Special Purpose Companies and any implementing rules and
guidelines related thereto.
(jjj) As
used in this Agreement, references to matters being “material” with respect to the
Company or its Subsidiaries shall mean a material event, change, condition,
status or effect related to the condition (financial or otherwise), properties,
assets (including intangible assets), liabilities, business, prospects,
operations or results of operations of the Company or the applicable
Subsidiaries, either individually or taken as a whole, as the context
requires.
(kkk) As
used in this Agreement, the term “knowledge of the Company” (or
similar language) shall mean the knowledge of the officers and directors of the
Company and the applicable Subsidiaries who are named in the Prospectus, with
the assumption that such officers and directors shall have made reasonable and
diligent inquiry of the matters presented (with reference to what is customary
and prudent for the applicable individuals in connection with the discharge by
the applicable individuals of their duties as officers, directors or managers of
the Company or the applicable Subsidiaries).
Any
certificate signed by or on behalf of the Company and delivered to the
Underwriters or to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (“Underwriters’ Counsel”) shall
be deemed to be a representation and warranty by the Company to each Underwriter
listed on Schedule
A hereto as to the matters covered thereby.
3. Reserved.
Maxim
Group LLC
November
9, 2009
Page 23
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4. Offering. Upon
authorization of the release of the Firm Shares by the Representative, the
Underwriters propose to offer the Shares for sale to the public upon the terms
and conditions set forth in the Prospectus.
5. Covenants of the
Company. The Company acknowledges, covenants and agrees with
the Underwriters that:
(a) The
Registration Statement and any amendments thereto have been declared effective,
and if Rule 430A is used or the filing of the Prospectus is otherwise required
under Rule 424(b), the Company will file the Prospectus (properly completed if
Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time
period and will provide evidence satisfactory to the Representative of such
timely filing.
(b) During
the period beginning on the date hereof and ending on the later of the Closing
Date or such date, as in the opinion of counsel for the Underwriter, the
Prospectus is no longer required by law to be delivered (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act is no longer required
to be provided), in connection with sales by an underwriter or dealer (the
“Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement,
the General Disclosure Package or the Prospectus, the Company shall furnish to
the Underwriter for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or supplement to
which the Underwriter reasonably object within 36 hours of delivery thereof to
the Underwriter and its counsel.
(c) After
the date of this Agreement, the Company shall promptly advise the Underwriter in
writing (i) of the receipt of any comments of, or requests for additional or
supplemental information from, the Commission, (ii) of the time and date of any
filing of any post-effective amendment to the Registration Statement or any
amendment or supplement to any Prospectus, the General Disclosure Package or the
Prospectus, (iii) of the time and date that any post-effective amendment to the
Registration Statement becomes effective and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order preventing or
suspending its use or the use of any Prospectus, the General Disclosure Package,
the Prospectus or any Issuer-Represented Free Writing Prospectus, or of any
proceedings to remove, suspend or terminate from listing the Common Stock from
any securities exchange upon which it is listed for trading, or of the
threatening or initiation of any proceedings for any of such
purposes. If the Commission shall enter any such stop order at any
time, the Company will use its reasonable efforts to obtain the lifting of such
order at the earliest possible moment. Additionally, the Company
agrees that it shall comply with the provisions of Rules 424(b), 430A and 430B,
as applicable, under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under Rule 424(b) or Rule 433 were
received in a timely manner by the Commission (without reliance on Rule
424(b)(8) or Rule 164(b)).
Maxim
Group LLC
November
9, 2009
Page 24
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(d) (i)
During the Prospectus Delivery Period, the Company will comply as far as it is
able with all requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from time to time in
force, and by the Exchange Act so far as necessary to permit the continuance of
sales of or dealings in the Securities as contemplated by the provisions hereof,
the General Disclosure Package, and the Registration Statement and the
Prospectus. If during such period any event occurs as a result of
which the Prospectus (or if the Prospectus is not yet available to prospective
purchasers, the General Disclosure Package ) would include an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary or appropriate in the
opinion of the Company or its counsel or the Underwriter or counsel to the
Underwriter to amend the Registration Statement or supplement the Prospectus (or
if the Prospectus is not yet available to prospective purchasers, the General
Disclosure Package ) to comply with the Securities Act or to file under the
Exchange Act any document which would be deemed to be incorporated by reference
in the Prospectus in order to comply with the Securities Act or the Exchange
Act, the Company will promptly notify the Underwriter and will amend the
Registration Statement or supplement the Prospectus (or if the Prospectus is not
yet available to prospective purchasers, the General Disclosure Package) or file
such document (at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(ii) If
at any time following issuance of an Issuer-Represented Free Writing Prospectus
there occurred or occurs an event or development as a result of which such
Issuer-Represented Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the Statutory Prospectus or
the Prospectus or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, the Company has promptly notified or
promptly will notify the Underwriter and has promptly amended or will promptly
amend or supplement, at its own expense, such Issuer-Represented Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(e) The
Company will promptly deliver to the Underwriters and Underwriters’ Counsel a
signed copy of the Registration Statement, as initially filed and all amendments
thereto, including all consents and exhibits filed therewith, and will maintain
in the Company’s files manually signed copies of such documents for at least
five (5) years after the date of filing thereof. The Company will
promptly deliver to each of the Underwriters such number of copies of any
Preliminary Prospectus, the Prospectus, the Registration Statement, and all
amendments of and supplements to such documents, if any, and all documents which
are exhibits to the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, as the Underwriters may reasonably
request. Prior to 10:00 A.M., New York time, on the business day next
succeeding the date of this Agreement and from time to time thereafter, the
Company will furnish the Underwriters with copies of the Prospectus in New York
City in such quantities as the Underwriters may reasonably request.
(f) The
Company consents to the use and delivery of the Preliminary Prospectus by the
Underwriters in accordance with Rule 430 and Section 5(b) of the Securities
Act.
Maxim
Group LLC
November
9, 2009
Page 25
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(g) If
the Company elects to rely on Rule 462(b) under the Securities Act, the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 of the Act by the earlier of: (i) 10:00 p.m., New York City time, on the
date of this Agreement, and (ii) the time that confirmations are given or sent,
as specified by Rule 462(b)(2).
(h) The
Company will use its best efforts, in cooperation with the Representative, at or
prior to the time of effectiveness of the Registration Statement, to qualify the
Securities for offering and sale under the securities laws relating to the
offering or sale of the Securities of such jurisdictions, domestic or foreign,
as the Representative may designate and to maintain such qualification in effect
for so long as required for the distribution thereof; except that in no event
shall the Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process or to subject
itself to taxation if it is otherwise not so subject.
(i) The
Company will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period that shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Rules and
Regulations.
(j) Except
with respect to (i) securities of the Company which may be issued in connection
with an acquisition of another entity (or the assets thereof), (ii)
the issuance of securities of the Company intended to provide the Company with
proceeds to acquire anther entity (or the assets thereof), or (iii) the issuance
of securities at fair market value (as defined in such plan) under the Company’s
stock option plans in effect from time to time, during the nine (9) months
following the Closing Date, the Company or any successor to the Company shall
not undertake any public or private offerings of any equity securities of the
Company (including equity-linked securities) without the written consent of the
Representative, which consent shall not be unreasonably withheld.
(k) Except
with respect to (i) securities of the Company which may be issued in connection
with an acquisition of another entity (or the assets thereof), (ii) the issuance
of securities of the Company intended to provide the Company with proceeds to
acquire anther entity (or the assets thereof), during the nine (9) months
following the Closing Date, without the consent of the Representative which
shall not be unreasonably withheld: (i) the Company will not file any
registration statement relating to the offer or sale of any of the Company’s
securities, except Form S-8 filed with the Commission in connection with the
Company’s Stock Option Plan.
(l) Following
the Closing Date, the Company and any of the individuals listed on Schedule B hereto
(the “Lock-Up Parties”)
shall not sell or otherwise dispose of any securities of the Company, whether
publicly or in a private placement during the period that their respective
lock-up agreements are in effect. The Company will deliver to the
Representative the agreements of Lock-Up Parties to the foregoing effect prior
to the Closing Date, which agreements shall be substantially in the form
attached hereto as Annex II.
Maxim
Group LLC
November
9, 2009
Page 26 of
43
(m)
Intentionally Omitted.
(n) For
a period of one (1) year from the effective date of the Registration Statement,
the Company, at its expense, shall provide the Representative on a weekly basis
with a copy of the Company’s weekly transfer sheets from the previous week and
securities positions listings.
(o) If
the Company fails to maintain the listing of its Ordinary Shares on a nationally
recognized exchange, for a period of three (3) years from the effective date of
the Registration Statement, the Company, at its expense, shall obtain and keep
current a listing in the Standard & Poor’s Corporation Records Services or
the ▇▇▇▇▇’▇ Industrial Manual; provided that ▇▇▇▇▇’▇ OTC Industrial Manual is
not sufficient for these purposes.
(p) During
the period of three (3) years from the effective date of the Registration
Statement, the Company will make available to the Underwriters copies of all
reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the Company,
and will deliver to the Underwriters: (i) as soon as they are available, copies
of any reports, financial statements and proxy or information statements
furnished to or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company as
the Representative may from time to time reasonably request (such financial
information to be on a consolidated basis to the extent the accounts of the
Company and the Subsidiaries are consolidated in reports furnished to its
security holders generally or to the Commission).
(q) The
Company will not issue press releases or engage in any other publicity, without
the Representative’ prior written consent, for a period ending at 5:00 p.m.
Eastern time on the first business day following the forty-fifth (45th) day
following the Closing Date, other than normal and customary releases issued in
the ordinary course of the Company’s business.
(r) Prior
to the consummation of the Offering, the Company will engage or continue to
engage (for no less than two (2) years from the date of the Closing Date) a
financial public relations firm mutually acceptable to the Company and the
Representative. The Company further agrees to consult with the
Representative as is customary within the securities industry prior to
distribution to third parties of any financial information, news releases,
and/or other publicity regarding the Company, its business, or any terms of the
proposed Offering, it being agreed that the Company shall give the
Representative no less than twelve (12) hours prior notice of any such
distribution and a reasonable opportunity during or prior to such period to
review the contents of the proposed distribution.
Maxim
Group LLC
November
9, 2009
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(s) The
Company has or will retain Continental Stock Transfer (or a transfer agent of
similar competence and quality) as transfer agent for the Securities and shall
continue to retain such transfer agent for a period of three (3) years following
the Closing Date.
(t)
The Company will apply the net proceeds from the sale of the
Securities as set forth under the caption “Use of Proceeds” in the
Prospectus. Without the written consent of the Representative, no
proceeds of the Offering will be used to pay outstanding loans from officers,
directors or shareholders or to pay any accrued salaries or bonuses to any
employees or former employees.
(u) The
Company will use its best efforts to effect and maintain the listing of the
Securities on the Nasdaq Global Market for at least three (3) years after the
Closing Date.
(v) The
Company, during the period when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act, will file all documents required to be
filed with the Commission pursuant to the Securities Act, the Exchange Act and
the Rules and Regulations within the time periods required thereby.
(w) The
Company will use its best efforts to do and perform all things required to be
done or performed under this Agreement by the Company prior to the Closing Date,
and to satisfy all conditions precedent to the delivery of the Firm
Shares.
(x) The
Company will not take, and will cause its Affiliates not to take, directly or
indirectly, any action which constitutes or is designed to cause or result in,
or which could reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Securities.
(y) The
Company shall cause to be prepared and delivered to the Representative, at its
expense, within one (1) business day from the effective date of this Agreement,
an Electronic Prospectus to be used by the Underwriters in connection with the
Offering. As used herein, the term “Electronic Prospectus” means a
form of prospectus, and any amendment or supplement thereto, that meets each of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representative, that may be transmitted electronically by
the other Underwriters to offerees and purchasers of the Securities for at least
the period during which a Prospectus relating to the Securities is required to
be delivered under the Securities Act; (ii) it shall disclose the same
information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇,
except to the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall be replaced
in the electronic prospectus with a fair and accurate narrative description or
tabular representation of such material, as appropriate; and (iii) it shall be
in or convertible into a paper format or an electronic format, satisfactory to
the Representative, that will allow recipients thereof to store and have
continuously ready access to the prospectus at any future time, without charge
to such recipients (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt of a request by an investor
or his or her representative within the period when a prospectus relating to the
Securities is required to be delivered under the Securities Act, the Company
shall transmit or cause to be transmitted promptly, without charge, a paper copy
of the Prospectus.
Maxim
Group LLC
November
9, 2009
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(z) The
Company represents and agrees that, unless it obtains the prior written consent
of the Representative, and the Representative represents and agrees that, unless
it obtains the prior written consent of the Company, it has not made and will
not make any offer relating to the Securities that would constitute an “issuer
free writing prospectus,” as defined in Rule 433 under the Securities Act, or
that would otherwise constitute a “free writing prospectus,” as defined in Rule
405 under the Securities Act, required to be filed with the Commission; provided
that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the free writing prospectuses included in Schedule C. Any
such free writing prospectus consented to by the Company and the Representative
is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely Commission filing where required, legending and
record keeping.
(aa) For
a period of three (3) years from the Closing Date the Company agrees to hold all
special and annual meetings of its shareholders within the United
States.
6. Consideration; Payment of
Expenses.
(a) In
consideration of the services to be provided for hereunder, the Company shall
pay to the Underwriters or their respective designees their pro rata portion
(based on the Securities purchased) of the following compensation with respect
to the Shares which they are offering:
(i) An
underwriting discount of seven percent (7%) as set forth in Section 1.1(a) and
(c);
(ii) A
corporate finance fee of one percent (1%) as set forth in Section 1.1(a) and
(c); and
(iii) The
Representative's Warrants.
Maxim
Group LLC
November
9, 2009
Page 29 of
43
(b) The
Company grants the Representative the right of participation for a period of
fifteen (15) months from the Closing Date to act as lead managing underwriter
and book runner or minimally as a co-lead manager and co-book runner and/or
co-lead placement agent with at least 50% of the economics; or, in the case of a
three-handed deal 33.0% of the economics, for any and all public and private
equity and debt offerings, excluding ordinary course of business financings such
as bank lines of credit, accounts receivable, factoring and financing generated
by the Company or any successor to or any subsidiary of the Company or any
financing transaction (whether debt, equity or otherwise) that occurs on an
exchange in China, Hong Kong and/or Singapore. The Company shall provide written
notice to Representative with terms of such offering and if Representative fails
to accept in writing any such proposal for such public or private sale within 20
days after receipt of a written notice from the Company containing such
proposal, then Representative will have no claim or right with respect to any
such sale contained in any such notice.
(c) The
Representative reserves the right to reduce any item of compensation or adjust
the terms thereof as specified herein in the event that a
determination shall be made by FINRA to the effect that the Underwriters’
aggregate compensation is in excess of FINRA Rules or that the terms thereof
require adjustment.
(d) Whether
or not the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of its obligations hereunder, including the following:
(i) all
expenses in connection with the preparation, printing, formatting for ▇▇▇▇▇ and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and any and all amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) all
fees and expenses in connection with the filing of Corporate Offerings Business
& Regulatory Analysis (“COBRADesk”) filings with
FINRA;
(iii) all
fees and expenses in connection with filing of the Registration Statement and
Prospectus with the Commission;
(iv) the
fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Securities Act and
the Offering;
(v) all
expenses in connection with the qualifications of the Shares for offering and
sale under state or foreign securities or blue sky laws, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue by survey undertaken by such
counsel;
(vi) all
fees and expenses in connection with listing the Securities on the Nasdaq Global
Market;
Maxim
Group LLC
November
9, 2009
Page 30 of
43
(vii) all
travel expenses of the Company’s officers and employees and any other expense of
the Company incurred in connection with attending or hosting meetings with
prospective purchasers of the Units (“Road Show
Expenses”);
(viii) any
stock transfer taxes incurred in connection with this Agreement or the
Offering
(ix) the
cost of preparing stock certificates representing the Securities;
(x) the
cost and charges of any transfer agent or registrar for the
Securities;
(xi) any
cost and expenses in conducting satisfactory due diligence investigation and
analysis of the Company’s officers, directors, employees, and affiliates;
and
(xii) all
other costs and expenses incident to the performance of the Company obligations
hereunder which are not otherwise specifically provided for in this Section
6.
(e) In
addition to the costs and expenses set forth in Section 6(c), the Company will
be responsible for: (i) the cost of two (2) “tombstone” advertisements to be
placed in appropriate daily or weekly periodicals of the Representative’s choice
(i.e., The Wall Street Journal and The New York Times); and (ii) the cost of
five (5) bound volumes of the Offering documents and eight (8) Offering
commemorative lucite (or other reasonable form) memorabilia, both to be supplied
to the Representative.
(f) It
is understood, however, that except as provided in this Section, and Sections 7,
8 and 12(d) hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel. Notwithstanding
anything to the contrary in this Section 6, in the event that this Agreement is
terminated pursuant to Section 6 or 12(b) hereof, or subsequent to a Material
Adverse Change, the Company will pay, up to $150,000 (less any advances
previously paid (the "Advances")), all out-of-pocket
expenses of the Underwriters (including but not limited to fees and
disbursements of counsel to the Underwriters) incurred in connection herewith
which shall be limited to expenses which are actually incurred as allowed under
FINRA Rule 5110. In the event the Offering is completed, any Advances
received by Maxim shall be reimbursed to the Company at the
Closing.
7. Conditions of Underwriters’
Obligations. The obligations of the Underwriters to purchase
and pay for the Firm Shares or Option Shares, as the case may be, as provided
herein shall be subject to: (i) the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (ii) the absence from any certificates, opinions, written
statements or letters furnished to the Representative or to Underwriters’
Counsel pursuant to this Section 7 of any misstatement or omission (iii) the
performance by the Company of its obligations hereunder, and (iv) each of the
following additional conditions. For purposes of this Section 7, the
terms “Closing Date” and “Closing” shall refer to the Closing Date for the Firm
Shares or Option Shares, as the case may be, and each of the foregoing and
following conditions must be satisfied as of each Closing.
Maxim
Group LLC
November
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(a) The
Registration Statement shall have become effective and all necessary regulatory
or listing approvals shall have been received not later than 5:30 P.M., New York
time, on the date of this Agreement, or at such later time and date as shall
have been consented to in writing by the Representative. If the
Company shall have elected to rely upon Rule 430A under the Securities Act, the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with the terms hereof and a form of the Prospectus containing
information relating to the description of the Securities and the method of
distribution and similar matters shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period; and, at or prior to
the Closing Date or the actual time of the Closing, no stop order suspending the
effectiveness of the Registration Statement or any part thereof, or any
amendment thereof, nor suspending or preventing the use of the General
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall
have been issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; any request of the Commission for additional
information (to be included in the Registration Statement, the General
Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or
otherwise) shall have been complied with to the Representative’s satisfaction;
and FINRA shall have raised no objection to the fairness and reasonableness of
the underwriting terms and arrangements.
(b) The
Representative shall not have reasonably determined, and advised the Company,
that the Registration Statement, the General Disclosure Package or the
Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free
Writing Prospectus, contains an untrue statement of fact which, in the
Representative’s reasonable opinion, is material, or omits to state a fact
which, in the Representative’s reasonable opinion, is material and is required
to be stated therein or necessary to make the statements therein not
misleading.
(c) The
Representative shall have received (i) the favorable written opinion of each of
Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, United States legal counsel for the
Company, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, British Virgin Islands counsel for the
Company, each dated as of the Closing Date addressed to the Representative of
the Underwriters in the form attached hereto as Annex II and (ii) the favorable
written opinion of Jingtian & Gongcheng, legal counsel for the Company with
respect to the laws of the PRC dated as of the Closing Date, addressed to the
Representative of the Underwriters in the form attached hereto as Annex
III.
(d) Intentionally
Omitted.
Maxim
Group LLC
November
9, 2009
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(e) The
Representative shall have received a certificate of the Chief Executive Officer
and Chief Financial Officer of the Company, dated as of each Closing Date to the
effect that: (i) the condition set forth in subsection (a) of this Section 7 has
been satisfied, (ii) as of the date hereof and as of the applicable Closing
Date, the representations and warranties of the Company set forth in Sections 1
and 2 hereof are accurate, (iii) as of the applicable Closing Date, all
agreements, conditions and obligations of the Company to be performed or
complied with hereunder on or prior thereto have been duly performed or complied
with, (iv) the Company and the Subsidiaries have not sustained any material loss
or interference with their respective businesses, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding,
(v) no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission, (vi) there are no pro forma
or as adjusted financial statements that are required to be included or
incorporated by reference in the Registration Statement and the Prospectus
pursuant to the Rules and Regulations which are not so included or incorporated
by reference and (vii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus there has
not been any Material Adverse Change or any development involving a prospective
Material Adverse Change, whether or not arising from transactions in the
ordinary course of business.
(f) On
the date of this Agreement and on the Closing Date, the Representative shall
have received a “cold comfort” letter from UHY as of the date of the date
of delivery and addressed to the Underwriters and in form and substance
satisfactory to the Representative and Underwriters’ Counsel, confirming that
they are independent certified public accountants with respect to the Company
and its Subsidiaries within the meaning of the Securities Act and the Rules and
Regulations, and stating, as of the date of delivery (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five (5) days prior to the date of such letter), the conclusions and
findings of such firm with respect to the financial information and other
matters relating to the Registration Statement covered by such
letter.
(g) Subsequent
to the execution and delivery of this Agreement or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been any change in the capital stock or long-term debt of
the Company or any Subsidiary or any change or development involving a change,
whether or not arising from transactions in the ordinary course of business, in
the business, condition (financial or otherwise), results of operations,
shareholders’ equity, properties or prospects of the Company and the
Subsidiaries, taken as a whole, including but not limited to the occurrence of
any fire, flood, storm, explosion, accident, act of war or terrorism or other
calamity, the effect of which, in any such case described above, is, in the sole
judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Prospectus (exclusive of any
supplement).
(h) The
Representative shall have received a lock-up agreement from each Lock-Up Party,
duly executed by the applicable Lock-Up Party, in each case substantially in the
form attached as Annex I.
(i)
The Securities shall have been approved for
quotation on the Nasdaq Global Market.
Maxim
Group LLC
November
9, 2009
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(j)
FINRA shall have confirmed
that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(k) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Securities; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities.
(l)
The Company shall have furnished
the Underwriters and Underwriters’ Counsel with such other certificates,
opinions or other documents as they may have reasonably requested.
If any of
the conditions specified in this Section 7 shall not have been fulfilled when
and as required by this Agreement, or if any of the certificates, opinions,
written statements or letters furnished to the Representative or to
Underwriters’ Counsel pursuant to this Section 7 shall not be reasonably
satisfactory in form and substance to the Representative and to Underwriters’
Counsel, all obligations of the Underwriters hereunder may be cancelled by the
Representative at, or at any time prior to, the consummation of the
Closing. Notice of such cancellation shall be given to the Company in
writing, or by telephone. Any such telephone notice shall be
confirmed promptly thereafter in writing.
8. Indemnification.
(a) (a) The
Company agrees to indemnify and hold harmless the Underwriters and each Person,
if an, who controls each Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which such party may become subject, under the
Securities Act or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including the information
deemed to be a part of the Registration Statement at the time of effectiveness
and at any subsequent time pursuant to Rules 430A and 430B of the Rules and
Regulations, the General Disclosure Package, the Prospectus, or any amendment or
supplement thereto (including any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus), any Issuer Free
Writing Prospectus or in any materials or information provided to investors by,
or with the approval of, the Company in connection with the marketing of the
offering of the Shares (“Marketing Materials”),
including any roadshow or investor presentations made to investors by the
Company (whether in person or electronically) 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 such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; or (ii) in whole or in part upon any
inaccuracy in the representations and warranties of the Company contained
herein; or (iii) in whole or in part upon any failure of the Company to perform
its obligations hereunder or under law; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the General Disclosure
Package, the Prospectus, or any such amendment or supplement, any Issuer Free
Writing Prospectus or in any Marketing Materials, in reliance upon and in
conformity with the Underwriters Information.
Maxim
Group LLC
November
9, 2009
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(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the
Company who shall have signed the Registration Statement, and each other Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys’ fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary Prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, 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, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with the
Underwriters’ Information; provided, however, that in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Securities to be purchased by such
Underwriter hereunder. The parties agree that such information
provided by or on behalf of any Underwriter through the Representative consists
solely of the material referred to in the last sentence of Section 1(b)
hereof.
Maxim
Group LLC
November
9, 2009
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(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of any claims or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the claim or the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under this Section 8 to the extent
that it is not materially prejudiced as a result thereof and in any event shall
not relieve it from any liability that such indemnifying party may have
otherwise than on account of the indemnity agreement hereunder). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate, at its own expense in the defense of such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided however, that counsel to the indemnifying party
shall not (except with the written consent of the indemnified party) also be
counsel to the indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense, or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior
written consent of the indemnified parties, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened claim, investigation, action or proceeding in respect of which
indemnity or contribution may be or could have been sought by an indemnified
party under this Section 8 or Section 9 hereof (whether or not the indemnified
party is an actual or potential party thereto), unless (x) such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, investigation, action or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or any failure to act, by or on behalf of the indemnified party, and
(y) the indemnifying party confirms in writing its indemnification obligations
hereunder with respect to such settlement, compromise or
judgment.
Maxim
Group LLC
November
9, 2009
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9. Contribution. In
order to provide for contribution in circumstances in which the indemnification
provided for in Section 8 hereof is for any reason held to be unavailable from
any indemnifying party or is insufficient to hold harmless a party indemnified
thereunder, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company, any contribution received by the Company from Persons, other than the
Underwriters, who may also be liable for contribution, including Persons who
control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company) as incurred to which the
Company and one or more of the Underwriters may be subject, in such proportions
as is appropriate to reflect the relative benefits received by the Company and
the Underwriters from the Offering or, if such allocation is not permitted by
applicable law, in such proportions as are appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
and the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bears to (y) the underwriting discount or commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of each of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this
Section. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any judicial,
regulatory or other legal or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the
provisions of this Section 9: (i) no Underwriter shall be required to contribute
any amount in excess of the amount by which the discounts and commissions
applicable to the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each Person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of the immediately preceding sentence. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 9 or
otherwise. The obligations of the Underwriters to contribute pursuant
to this Section 9 are several in proportion to the respective number of Shares
to be purchased by each of the Underwriters hereunder and not
joint.
Maxim
Group LLC
November
9, 2009
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10. Underwriter
Default.
(a) If
any Underwriter or Underwriters shall default in its or their obligation to
purchase Firm Shares hereunder, and if the Firm Shares with respect to which
such default relates (the “Default Shares”) do not (after
giving effect to arrangements, if any, made by the Representative pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares,
each non-defaulting Underwriter, acting severally and not jointly, agrees to
purchase from the Company that number of Default Shares that bears the same
proportion of the total number of Default Shares then being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters, subject, however, to such adjustments to eliminate
fractional shares as the Representative in its sole discretion shall
make.
(b) In
the event that the aggregate number of Default Shares exceeds 10% of the number
of Firm Shares, the Representative may in their discretion arrange for
themselves or for another party or parties (including any non-defaulting
Underwriter or Underwriters who so agree) to purchase the Default Shares on the
terms contained herein. In the event that within five calendar days
after such a default the Representative do not arrange for the purchase of the
Default Shares as provided in this Section 10, this Agreement shall thereupon
terminate, without liability on the part of the Company with respect thereto
(except in each case as provided in Sections 5, 7, 8, 10 and 12(d)) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In
the event that any Default Shares are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Representative or the Company shall have the right to postpone the Closing
Date for a period, not exceeding five (5) business days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the reasonable opinion of Underwriters’
Counsel, may thereby be made necessary or advisable. The term
“Underwriter” as used in this Agreement shall include any party substituted
under this Section 10 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares.
11. Survival of Representations
and Agreements. All representations and warranties, covenants
and agreements of the Company and the Underwriters contained in this Agreement
or in certificates of officers of the Company or any Subsidiary submitted
pursuant hereto, including the agreements contained in Section 6, the indemnity
agreements contained in Section 8 and the contribution agreements contained in
Section 9 hereof, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any controlling
Person thereof or by or on behalf of the Company, any of its officers and
directors or any controlling Person thereof, and shall survive delivery of and
payment for the Shares to and by the Underwriters. The
representations contained in Section 2 hereof and the covenants and agreements
contained in Sections 5, 6, 8, 9, this Section 11 and Sections 15 and 16 hereof
shall survive any termination of this Agreement, including termination pursuant
to Section 10 or 12 hereof.
Maxim
Group LLC
November
9, 2009
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12. Effective Date of Agreement;
Termination.
(a) This
Agreement shall become effective upon the later of: (i) receipt by the
Representative and the Company of notification of the effectiveness of the
Registration Statement or (ii) the execution of this
Agreement. Notwithstanding any termination of this Agreement, the
provisions of this Section 12 and of Sections 1, 5, 7, 8 and 12 through 17,
inclusive, shall remain in full force and effect at all times after the
execution hereof.
(b) The
Representative shall have the right to terminate this Agreement at any time
prior to the consummation of the Closing
if: (i) any domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representative will in the immediate future
materially disrupt, the market for the Company’s securities or securities in
general; or (ii) trading on the New York Stock Exchange, the NASDAQ or the AMEX
shall have been suspended or been made subject to material limitations, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange, the Nasdaq Stock Market or the NYSE AMEX or by order of the Commission
or any other governmental authority having jurisdiction; or (iii) a banking
moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred; (iv) any downgrading shall have occurred in the
Company’s corporate credit rating or the rating accorded the Company’s debt
securities or trust preferred stock by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the
Securities Act) or if any such organization shall have been publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Company’s debt securities; or (v) (A) there shall have
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency or
war by the United States or (B) there shall have been any other calamity or
crisis or any change in political, financial or economic conditions if the
effect of any such event in (A) or (B), in the judgment of the Representative,
is so material and adverse that such event makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
on the terms and in the manner contemplated by the Prospectus.
(c) Any
notice of termination pursuant to this Section 12 shall be in
writing.
(d) If
this Agreement shall be terminated pursuant to any of the provisions hereof
(other than pursuant to Section 10(b) hereof), or if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Representative, reimburse the Underwriters for only those out-of-pocket expenses
(including the fees and expenses of their counsel), actually incurred by the
Underwriters in connection herewith up to $150,000 less any amounts previously
paid by the Company.
Maxim
Group LLC
November
9, 2009
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13. Notices. All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing, and:
(a) if
sent to the Representative or any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to Maxim Group LLC, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Director of Investment Banking, with a copy to Underwriters’
Counsel at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, 65 ▇▇▇▇▇▇▇▇▇▇ Avenue, Roseland, New Jersey,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; and
(b) if
sent to the Company, shall be mailed, delivered, or faxed and confirmed in
writing to the Company and its counsel at the addresses set forth in the
Registration Statement,.
provided, however, that any
notice to an Underwriter pursuant to Section 8 shall be delivered or sent by
mail or facsimile transmission to such Underwriter at its address set forth in
its acceptance facsimile to the Representative, which address will be supplied
to any other party hereto by the Representative upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
14. Parties; Limitation of
Relationship. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company and the controlling
Persons, directors, officers, employees and agents referred to in Sections 7 and
8 hereof, and their respective successors and assigns, and no other Person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the parties hereto and
said controlling Persons and their respective successors, officers, directors,
heirs and legal Representative, and it is not for the benefit of any other
Person. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of Units from any of the
Underwriters.
Maxim
Group LLC
November
9, 2009
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15. Governing
Law. This Agreement shall be deemed to have been executed and
delivered in New York and both this Agreement and the transactions contemplated
hereby shall be governed as to validity, interpretation, construction, effect,
and in all other respects by the laws of the State of New York, without regard
to the conflicts of laws principals thereof (other than Section 5-1401 of The
New York General Obligations Law). Each of the Underwriters and the
Company: (a) agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement and/or the transactions contemplated hereby shall be
instituted exclusively in the Supreme Court of the State of New York, New York
County, or in the United States District Court for the Southern District of New
York, (b) waives any objection which it may have or hereafter to the venue of
any such suit, action or proceeding, and (c) irrevocably consents to the
jurisdiction of Supreme Court of the State of New York, New York County, or in
the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Underwriters and 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 the Supreme Court
of the State of New York, New York County, or in the United States District
Court for the Southern District of New York and agrees that service of process
upon the Company mailed by certified mail to the Company’s address or delivered
by Federal Express via overnight delivery shall be deemed in every respect
effective service of process upon the Company, in any such suit, action or
proceeding, and service of process upon the Underwriters mailed by certified
mail to the Underwriters’ address or delivered by Federal Express via overnight
delivery shall be deemed in every respect effective service process upon the
Underwriter, in any such suit, action or proceeding. THE COMPANY (ON
BEHALF OF ITSELF, THE SUBSIDIARIES AND, TO THE FULLEST EXTENT PERMITTED BY LAW,
ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
16. Entire
Agreement. This Agreement, together with the schedule and
exhibits attached hereto and as the same may be amended from time to time in
accordance with the terms hereof, contains the entire agreement among the
parties hereto relating to the subject matter hereof and there are no other or
further agreements outstanding not specifically mentioned herein.
17. Severability. If
any term or provision of this Agreement or the performance thereof shall be
invalid or unenforceable to any extent, such invalidity or unenforceability
shall not affect or render invalid or unenforceable any other provision of this
Agreement and this Agreement shall be valid and enforced to the fullest extent
permitted by law.
18. Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
19. Waiver, etc.
The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way effect the validity of this Agreement or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
Maxim
Group LLC
November
9, 2009
Page 41 of
43
20. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriters are
acting solely as underwriters in connection with the offering of the Company's
securities. The Company further acknowledge that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, shareholders, creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance
of the offering of the Company's securities, either before or after the date
hereof,. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company hereby further confirms its understand that no Underwriter has
assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the Offering contemplated hereby or the process leading thereto,
including any negotiation related to the pricing of the Units; and the Company
has consulted its own legal and financial advisors to the extent it has deemed
appropriate in connection with this Agreement and the Offering. The Company and
the Underwriters agree that they are each responsible for making their own
independent judgments with respect to any such transactions, and that any
opinions or views expressed by the Underwriters to the Company regarding such
transactions, including but not limited to any opinions or views with respect to
the price or market for the Company's securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the Underwriters with respect to any breach or alleged breach of any fiduciary
or similar duty to the Company in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions.
21. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this
Agreement by facsimile transmission shall constitute valid and sufficient
delivery thereof.
22. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
23. Time is of the
Essence. Time shall be of the essence of this
Agreement. As used herein, the term “business day” shall mean any day
other than a Saturday, Sunday or any day on which the major stock exchanges in
New York, New York are not open for business.
[Signature
Pages Follow]
Maxim
Group LLC
November
9, 2009
Page 42 of
43
If the
foregoing correctly sets forth your understanding, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
|
Very
truly yours,
|
|
|
GOLDEN
GREEN ENTERPRISES LIMITED
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇
|
|
Name:
▇▇▇▇▇▇▇▇ ▇▇
|
|
|
Title:
Chairman and CEO
|
|
Maxim
Group LLC
November
9, 2009
Page 43 of
43
Accepted
by the Representative, acting for themselves and as
Representative
of the Underwriters named on Schedule A attached
hereto,
as
of the date first written above:
|
MAXIM
GROUP LLC
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title: Executive
Managing Director — Investment
Banking
|
|
SCHEDULE
A
Underwriters
|
Underwriter
|
Number of
Firm Shares to
be Purchased
from the
Company
|
Over-Allotment
Option Shares
|
||||||
|
Maxim
Group LLC
|
4,080,000 | 612,000 | ||||||
|
Chardan
Capital Markets, LLC
|
720,000 | 108,000 | ||||||
|
Total
|
4,800,000 | 720,000 | ||||||
V-1
SCHEDULE
B
Lock-Up
Parties
▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇
Zheyu
▇▇▇▇
▇▇▇▇▇▇▇
Fan
▇▇▇▇▇
▇▇▇▇▇▇▇
▇.▇.
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
Maotong
Xu
Oasis
Green Investment Group
Plumpton
Group Limited
Honest
Joy Group Limited
V-2
SCHEDULE
C
Issuer-Represented
General Free Writing Prosectus
None
V-3