Attached files
file | filename |
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8-K - Shiner International, Inc. | v206801_8k.htm |
EX-99.1 - Shiner International, Inc. | v206801_ex99-1.htm |
EX-10.13 - Shiner International, Inc. | v206801_ex10-13.htm |
EX-10.12 - Shiner International, Inc. | v206801_ex10-12.htm |
EX-10.14 - Shiner International, Inc. | v206801_ex10-14.htm |
EXHIBIT
10.11
THE SECURITIES OFFERED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND
ARE PROPOSED TO BE ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY REGULATION S PROMULGATED UNDER
THE SECURITIES ACT. UPON ANY SALE, SUCH SECURITIES MAY NOT BE REOFFERED FOR SALE
OR RESOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
SECURITIES
PURCHASE AGREEMENT
FOR
NON-US PERSONS
SECURITIES PURCHASE AGREEMENT
(the “Agreement”), dated
as of December 28, 2010, by and among Shiner International, Inc., a Nevada
corporation, with headquarters located at 19/F, Didu Building, Pearl River
Plaza, No. 2 North Longkun Road, Haikou, Hainan Province, China 570125 (the
”Company”), and the
investors listed on the Schedule of Investors attached hereto (individually, a
“Investor” and
collectively, the “Investors”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the “Securities Act”) and Rule 903
of Regulation S promulgated thereunder, the Company desires to offer, issue and
sell to the Investors, and the Investors, severally and not jointly, desire to
purchase from the Company, up to 3,333,333 units (the “Units”), with each Unit
consisting of one share of common stock, par value $0.001 per share (the “Common Stock”), of the Company
(the “Shares”) and a
warrant to purchase twenty percent (20%) of one (1) share of Common Stock at an
exercise price of $1.70 per share (the “Warrants”), at a purchase
price of $1.20 per Unit (the “Offering Price”) for an
aggregate offering of a minimum of $3,000,000 and up to a maximum of $4,000,000
(the “Offering”). The
Units, Shares, Warrants and shares of common stock issuable upon exercise of the
Warrants (the “Warrant
Shares”) are collectively referred to herein as the “Securities.”
NOW, THEREFORE, in consideration
of the mutual covenants and agreements contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the Company and each of the Investors agree as
follows:
1. PURCHASE AND SALE OF
UNITS.
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(a)
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Purchase of
Units.
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(i) Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7
below, the Company shall issue and sell to each Investor, and each Investor
severally, but not jointly, agrees to purchase from the Company on the Closing
Date (as defined below), the number of Units set forth opposite such Investor’s
name on the Schedule of Investors (the “Closing”).
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(ii) Closing. The date and
time of the Closing (the “Closing Date”) shall be the
first business day following notification of satisfaction (or waiver) of the
conditions to the Closing set forth in Sections 6 and 7 below at the offices of
Stevens & Lee P.C., 1818 Market Street, 29th Floor,
Philadelphia, PA 19103 (or such other place as mutually agreed upon by the
parties hereto). By agreement of the parties hereto, the Closing may be
alternatively accomplished by facsimile transmission to the respective offices
of legal counsel for the parties of the requisite documents, duly executed where
required, with originals to be delivered by overnight courier service on the
next business day following the Closing Date.
(iii) Purchase Price. The
aggregate purchase price for the Units to be purchased by each Investor at the
Closing (the “Purchase
Price”) shall be the amount set forth opposite such Investor’s name in
the Schedule of Investors. The minimum investment for each Investor shall be
8,000 Units, for a minimum Purchase Price of $10,000.
(b) Form of Payment. On
the Closing Date, (i) each Investor shall pay its Purchase Price for the Shares
and the Warrants to be issued and sold to such Investor at the Closing, by wire
transfer of immediately available funds in accordance with the Company’s written
wire instructions to be delivered to the Investor, and (ii) the Company
shall deliver to each Investor the Shares and the Warrants, in each case duly
executed on behalf of the Company and registered in the name of such Investor or
its designee.
2. INVESTOR’S REPRESENTATIONS
AND WARRANTIES. The Investor hereby acknowledges, represents
and warrants to, and agrees with, the Company as follows:
(a) The
Investor understands that the Units are being offered and sold in reliance on an
exemption from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of the Investor set forth herein in order to determine the applicability of such
exemptions and the suitability of the Investor to acquire the
Units. In this regard, the Investor represents and warrants to and
agrees with the Company as follows:
(i) The
Investor has (x) carefully reviewed this Agreement and the Confidential
Purchaser Questionnaire attached as Exhibit “A” hereto, the Form of Warrant
attached as Exhibit “B” hereto and the Registration Rights Agreement attached as
Exhibit “C” hereto, as well as all of the Company’s filings with the Securities
and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934,
as amended (“Exchange Act”), copies of which may be accessed through the “SEC
Filings” tab on the Company’s website at http://www.shinerinc.com/html/investor.asp
(the “’34 Act Filings”),
and (y) understands the information contained in each such document including,
but not limited to, the ’34 Act Filings.
(ii) The
Investor has full power and authority to enter into this Agreement and each of
the Transaction Documents, the execution and delivery of this Agreement and the
Transaction Documents has been duly authorized, if applicable, and this
Agreement and the Transaction Documents constitute a valid and legally binding
obligation of the Investor.
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(iii) All
documents, records and books pertaining to the Company and/or this investment
that the Investor has requested have been made available for inspection by him
and/or his attorney, accountant and other advisor(s);
(iv) The
Investor and/or the Investor’s advisors, if any, have had a reasonable
opportunity to ask questions of and receive information and answers from a
person or persons acting on behalf of the Company concerning the offering of the
Units and all such questions have been answered and all such information has
been provided to the full satisfaction of the Investor;
(v) Neither
the Investor nor the Investor’s advisors, if any, have been furnished any
offering literature other than this Agreement and the exhibits attached hereto
and the Investor and the Investor’s advisors, if any, have relied only on the
information contained in this Agreement, the exhibits attached hereto and the
’34 Act Filings, and the information, as described in subparagraphs (ii) and
(iii) above, furnished or made available to them by the Company;
(vi) No
oral or written representations have been made and no oral or written
information has been furnished to the Investor or the Investor’s advisors, if
any, in connection herewith that were in any way inconsistent with the
information set forth in this Agreement, the exhibits attached hereto and the
’34 Act Filings;
(vii) The
Investor is not subscribing for the Units as a result of or subsequent to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
presented at any seminar or meeting;
(viii) The
Investor acknowledges that he has conducted his own independent evaluation of
the Company and has analyzed the risks associated with an investment in the
Units and has based the decision to invest in the Units on the results of this
evaluation and analysis;
(ix) The
Investor’s overall commitment to investments that are not readily marketable is
not disproportionate to the Investor’s net worth and the Investor’s investment
in the Company will not cause such overall commitment to become disproportionate
to the Investor’s net worth;
(x) If
the Investor is a natural person, the Investor has reached the age of majority
in the jurisdiction in which the Investor resides, has adequate net worth and
means of providing for the Investor’s current financial needs and personal
contingencies, is able to bear the substantial economic risks of an investment
in the Units for an indefinite period of time, has no need for liquidity in such
investment and, at the present time, could afford a complete loss of such
investment;
(xi) The
address set forth below is the Investor’s true and correct residence (or, if not
an individual, domiciliary) address;
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(xii) The
Investor (A) has such knowledge of, and experience in, business and financial
matters so as to enable him to utilize the information made available to him in
connection with the offering of the Units in order to evaluate the merits and
risks of an investment in the Units and to make an informed investment decision
with respect thereto, (B) the Investor has carefully evaluated the risks of
investing and (C) has the capacity, either alone, or with a professional
advisor, to protect his own interests in connection with a purchase of the
Units;
(xiii) The
Investor is not relying on the Company with respect to the economic
considerations of the Investor relating to this investment. In regard
to such considerations, the investor has relied on the advice of, or has
consulted with, only his own advisors. The Investor recognizes that
the information furnished by the Company does not constitute investment,
accounting, legal or tax advice. The Investor is relying on
professional advisors for such advice;
(xiv) The
Investor is acquiring the Units solely for his own account as principal, for
investment purposes only and not with a view to the resale or distribution
thereof, in whole or in part, and no other person has a direct or indirect
beneficial interest in such Units. Further, the Investor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Units for which the Investor is subscribing or any part of the
Units;
(xv) Any
resale of the Securities during the ‘distribution compliance period’ as defined
in Rule 902(f) to Regulation S shall only be made in compliance with exemptions
from registration afforded by Regulation S. Further, any such sale of
the Securities in any jurisdiction outside of the United States will be made in
compliance with the securities laws of such jurisdiction. The
Investor will not offer to sell or sell the Securities in any jurisdiction
unless the Investor obtains all required consents, if any.
(xvi) The
Units are being offered and sold in reliance on an exemption from the
registration requirements of United States federal and state securities laws
under Regulation S promulgated under the Securities Act and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Investor set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Investor to acquire the Units. In this regard, the Investor
represents, warrants and agrees that:
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1.
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The
Investor is not a U.S. Person and is not an Affiliate of the Company and
is not acquiring the Securities for the account or benefit of a U.S.
Person.
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2.
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At
the time of the origination of contact concerning this Agreement and the
date of the execution and delivery of this Agreement, the Investor was
outside of the United States.
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3.
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The
Investor will not, during the period commencing on the date of issuance of
the Securities and ending on the first anniversary of such date, or such
shorter period as may be permitted by Regulation S or other applicable
securities law (the “Restricted Period”),
offer, sell, pledge or otherwise transfer the Securities in the United
States, or to a U.S. Person for the account or for the benefit of a U.S.
Person, or otherwise in a manner that is not in compliance with Regulation
S.
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4.
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The
Investor will, after expiration of the Restricted Period, offer, sell,
pledge or otherwise transfer the Securities only pursuant to registration
under the Securities Act or an available exemption therefrom and, in
accordance with all applicable state and foreign securities
laws.
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5.
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The
Investor was not in the United States, engaged in, and prior to the
expiration of the Restricted Period will not engage in, any short selling
of or any hedging transaction with respect to the Securities, including
without limitation, any put, call or other option transaction, option
writing or equity swap.
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6.
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Neither
the Investor nor or any person acting on his behalf has engaged, nor will
engage, in any directed selling efforts to a U.S. Person with respect to
the Securities and the Investor and any person acting on his behalf have
complied and will comply with the “offering restrictions” requirements of
Regulation S under the Securities
Act.
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7.
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The
transactions contemplated by this Agreement have not been pre-arranged
with a buyer located in the United States or with a U.S. Person, and are
not part of a plan or scheme to evade the registration requirements of the
Securities Act.
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8.
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Neither
the Investor nor any person acting on his behalf has undertaken or carried
out any activity for the purpose of, or that could reasonably be expected
to have the effect of, conditioning the market in the United States, its
territories or possessions, for any of the Securities. The
Investor agrees not to cause any advertisement of the Securities to be
published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except such
advertisements that include the statements required by Regulation S under
the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any local applicable securities
laws.
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(xvii) The
Investor understands that the certificate(s) evidencing ownership of the Shares
and the Warrant Shares and the Warrants will each bear a restrictive legends in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such securities):
THE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES
ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.
TRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
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(xviii) The
Investor understands that, except as provided in the Registration Rights
Agreement: (i) the Securities have not been and are not being registered under
the Securities Act or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (A) subsequently registered
thereunder or (B) the Investor shall have delivered to the Company an opinion of
counsel selected by the Investor, in a form reasonably acceptable to the
Company, to the effect that such Securities to be sold, assigned or transferred
may be sold, assigned or transferred pursuant to an exemption from such
registration and (ii) neither the Company nor any other Person is under any
obligation to register the Securities under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.
(xix) The
Investor understands that the Securities have not been registered under the
Securities Act or any state securities laws, and may not be sold or transferred
unless (x) such sale or transfer is subsequently registered thereunder;
(y) the Investor shall have delivered to the Company an opinion of counsel
(which opinion and counsel shall be reasonably acceptable to the Company) to the
effect that the securities to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; or (z) the securities are
sold pursuant to an available exemption from registration;
(xx) The
Investor understands that the price of the Units has been determined arbitrarily
by the Company and may not be indicative of the true value of the
Units. The Investor understands that no assurances can be given that
the Shares, the Warrants or the Warrant Shares could be resold by the Subscriber
for the Purchase Price or any price and he has made an independent determination
of the fairness of the Purchase Price; and
(xxi) The
Investor has completed and returned to the Company a Confidential Purchaser
Questionnaire. The information provided by the Investor in the
Confidential Purchaser Questionnaire is true and correct and the Investor
understands that the Company is relying upon such information in connection with
the purchase of the Units by the Investor.
(b) The
Investor recognizes that an investment in the Units involves a number of
significant risks including, but not limited to, those risks described in the
’34 Act Filings.
(c) The
Investor understands that no federal or state agency has passed upon the Units
or made any finding or determination as to the fairness of this investment in
the Units.
(d) All
information that the Investor has heretofore furnished and furnishes herewith to
the Company are true, correct and complete as of the date of execution of this
Agreement and if there should be any material change in such information prior
to the Closing, the Investor will immediately furnish such revised or corrected
information to the Company.
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(e) The
Investor acknowledges and agrees that the Company intends to pay 3CM Partners,
Inc. at final Closing an amount equal to $165,000 in the aggregate for
pre-transaction services, including but not limited to due diligence and
structuring, and, reimbursement for out-of-pocket expenses and Investor legal
fees.
(f) The
foregoing representations, warranties and agreements, together with all other
representations and warranties made or given by the Investor to the Company in
any other written statement or document delivered in connection with the
transactions contemplated hereby, shall be true and correct in all respects on
and as of the date of the Closing as if made on and as of such date and shall
survive such date. If more than one Investor is signing this
Agreement, each representation, warranty and undertaking herein shall be the
several and not joint representation, warranty and undertaking of such
Investors.
3. COMPANY’S REPRESENTATIONS
AND WARRANTIES. The Company
hereby acknowledges, represents and warrants to, and agrees with, the Investor
as follows:
(a) Organization,
Qualification. Each of the Company and its “Significant Subsidiaries”
(which for purposes of this Agreement means any joint venture or any entity in
which the Company, directly or indirectly, owns a majority of the capital stock
or holds a majority equity or similar interest) is duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Significant
Subsidiary is in violation of any of the provisions of its certificate or
articles of incorporation, bylaws or other organizational or charter
documents. Each of the Company and its Significant Subsidiaries is
duly qualified to conduct its business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary.
The Company has no Significant Subsidiaries except as set forth in ’34 Act
Filings.
(b) Authorization,
Enforcement. The Company has the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by each of the
“Transaction Documents”
(which is defined to include this Agreement, the Share certificate, the Warrant,
the Registration Rights Agreement and any other documents or agreements executed
in connection with the transactions contemplated hereunder) and otherwise to
carry out its obligations thereunder. The execution and delivery of
each of the Transaction Documents by the Company and the consummation by it of
the transactions contemplated thereby, including, without limitation, the
issuance of the Securities and the reservation for issuance and the issuance of
the Shares and the Warrant Shares, have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company in connection therewith. Each Transaction Document has been
(or upon delivery will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors’ rights and
remedies or by other equitable principles of general application.
(c) No Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby
including, without limitation, the issuance of the Securities and the
reservation for issuance and the issuance of the Shares and the Warrants Shares,
do not and will not:
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(i) conflict
with or violate any provision of the Company’s or any Significant Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents;
(ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Significant Subsidiary debt or otherwise) or other
understanding to which the Company or any Significant Subsidiary is a party or
by which any property or asset of the Company or any Significant Subsidiary is
bound or affected; or
(iii) result
in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company
or any Significant Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or any
Significant Subsidiary is bound or affected.
(d) No Consent, Etc. The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local, foreign or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than (to the extent required):
(i) the
filing with the SEC of one or more Registration Statements in accordance with
the requirements of the Registration Rights Agreement;
(ii) filings
required by state securities laws; and
(iii) those
that have been made or obtained prior to the date of this
Agreement.
The
Company and its Significant Subsidiaries are unaware of any facts or
circumstances that might prevent the Company from obtaining or effecting any of
the registration or filings pursuant to the preceding clauses. The
Company is not in violation of the rules of the Nasdaq Capital Market (the
“Principal Market”) and
has no knowledge of any facts that would reasonably lead to the termination or
suspension of the trading of the Common Stock in the foreseeable
future.
(e) The
Units have been duly authorized and, when issued and paid for in accordance with
the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all liens and encumbrances. The
Company has reserved from its duly authorized Common Stock, the Shares and such
number of additional shares of Common Stock as equal 125% of the Warrant Shares
issuable as of the date hereof. Assuming the accuracy of each of the
representations and warranties set forth in Section 2 of this Agreement, the
offer and sale by the Company of the Securities is exempt from registration
under the Securities Act.
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(f) None
of the Company, any of its affiliates, and any Person acting on their behalf
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would require
registration of any of the Securities under the Securities Act or cause this
offering of the Securities to be integrated with prior offerings by the Company
for purposes of the Securities Act or any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of the
Company are listed or designated. Neither the Company, nor any of its
Significant Subsidiaries or affiliates, nor any Person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with the offer or sale of the
Securities.
(g) Equity
Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 75,000,000 shares of Common Stock, of which as
of the date hereof, 24,688,155 are issued and outstanding and 1,760,050 shares
are reserved for issuance (other than the Units, the Shares and the
Warrants). All of such outstanding shares have been, or upon
issuance will be, validly issued and are fully paid and
nonassessable. Except as disclosed in the '34 Act Filings: (i) none
of the Company’s capital stock is subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by the
Company; (ii) no shares of Common Stock are entitled to preemptive rights or
registration rights and there are no outstanding options, warrants, scrip,
rights to subscribe to, call or commitments of any character whatsoever relating
to, or securities or rights convertible into, any shares of capital stock of the
Company or any of its Significant Subsidiaries; (iii) there are no agreements or
arrangements under which the Company or any of its Significant Subsidiaries is
obligated to register the sale of any of their securities under the Securities
Act (except pursuant to the Registration Rights Agreement); (iv) there are no
outstanding securities or instruments of the Company or any of its Significant
Subsidiaries which contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company
or any of its Significant Subsidiaries is or may become bound to redeem a
security of the Company or any of its Significant Subsidiaries; and (v) there
are no securities or instruments containing anti-dilution or similar provisions
that will be triggered by the issuance of the Securities.
(h) Exchange Act Filings.
The Common Stock is registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, and, since September 30, 2009, the Company has timely filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC pursuant to the reporting requirements of the Exchange Act,
including the ’34 Act Filings. The Company has not provided to the
Purchasers any material non-public information or other information which,
according to applicable law, rule or regulation, was required to have been
disclosed publicly by the Company but which has not been so disclosed, other
than with respect to the transactions contemplated by this Agreement. At the
times of their respective filings, the Company’s Form 10-K for the year ended
December 31, 2009, including the accompanying financial statements, and it’s
Form 10-Qs for the first three quarters of 2010 complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC promulgated thereunder and other federal, state and local laws, rules
and regulations applicable to such documents, and, as of their respective dates,
none of these filings 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. The financial statements of the
Company included in the ’34 Act Filings comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles (“GAAP”) applied on a consistent
basis during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements), and fairly present in all material respects
the financial position of the Company and its Significant Subsidiaries as of the
dates thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
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(i) Absence of Certain Events,
Liabilities, etc. No event, liability, development or circumstance has
occurred or exists, or is contemplated to occur with respect to the Company, its
Significant Subsidiaries or their respective business, properties, prospects,
operations or financial condition, that would be required to be disclosed by the
Company under applicable securities laws on a registration statement on Form S-1
filed with the SEC relating to an issuance and sale by the Company of its Common
Stock and which has not been publicly announced. Except as disclosed
in the ’34 Act Filings, neither the Company nor any of its Significant
Subsidiaries has any liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent
or otherwise) other than those incurred in the ordinary course of the Company’s
or its Significant Subsidiaries respective businesses since December 31, 2009
and which, individually or in the aggregate, do not or would not have a Material
Adverse Effect on the Company or its Significant Subsidiaries. As
used in this Agreement, “Material Adverse Effect” means
any material adverse effect on the business, properties, assets, operations,
results of operations, condition (financial or otherwise) or prospects of the
Company and its Significant Subsidiaries, taken as a whole, or on the
transactions contemplated hereby and the other Transaction Documents or by the
agreements and instruments to be entered into in connection herewith or
therewith, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents.
(j) Indebtedness. Except
as disclosed in the ’34 Act Filings, neither the Company nor any of its
Significant Subsidiaries (i) has any outstanding Indebtedness (as defined
below), (ii) is a party to any contract, agreement or instrument, the violation
of which, or default under which, by the other party(ies) to such contract,
agreement or instrument could reasonably be expected to result in a Material
Adverse Effect, (iii) is in violation of any term of or in default under any
contract, agreement or instrument relating to any Indebtedness, except where
such violations and defaults would not result, individually or in the aggregate,
in a Material Adverse Effect, or (iv) is a party to any contract, agreement or
instrument relating to any Indebtedness, the performance of which, in the
judgment of the Company’s officers, has or is expected to have a Material
Adverse Effect. For purposes of this Agreement, “Indebtedness” shall mean (a)
any liabilities for borrowed money or amounts owed in excess of $100,000 (other
than trade accounts payable incurred in the ordinary course of business), (b)
all guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others, whether or not the same are or should be reflected in
the Company’s balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (c) the present value of
any lease payments in excess of $25,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Company nor any
Significant Subsidiary is in default with respect to any
Indebtedness.
10
(k) Foreign Corrupt Practices
Act. Neither the Company nor any of its Significant
Subsidiaries nor any director, officer, agent, employee or other Person acting
on behalf of the Company or any of its Significant Subsidiaries has, in the
course of its actions for, or on behalf of, the Company or any of its
Significant Subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
(l) Related
Transactions. Except as set forth in the Company’s ‘34 Act
Filings, none of the officers, directors or employees of the Company or any of
its Significant Subsidiaries is presently a party to any transaction with the
Company or any of its Significant Subsidiaries (other than for ordinary course
services as employees, officers or directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director or employee or, to the
knowledge of the Company or any of its Significant Subsidiaries, any
corporation, partnership, trust or other entity in which any such officer,
director, or employee has a substantial interest or is an officer, director,
trustee or partner.
(m) Title to
Assets. Each of the Company and its Significant Subsidiaries
has good and marketable title to all of its real and personal property reflected
in its most recent Form 10-K, free and clear of any mortgages, pledges, charges,
liens, security interests or other encumbrances, except for those disclosed in
such Form 10-K or its Form 10-Qs thereafter filed with the SEC or such that,
individually or in the aggregate, do not cause a Material Adverse
Effect. All said leases of the Company and each of its Significant
Subsidiaries are valid and subsisting and in full force and effect.
(n) Litigation. Except as
set forth in the ‘34 Act Filings, there is no action, suit,
proceeding, inquiry or investigation before or by the Principal Market, any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Significant Subsidiaries, the Common Stock or any of the
Company’s Significant Subsidiaries or any of the Company’s or its Significant
Subsidiaries’ officers or directors.
(o) Insurance. The
Company and each of its Significant Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as management of the Company believes to be prudent and customary in the
businesses in which the Company and its Significant Subsidiaries are
engaged. Neither the Company nor any such Significant Subsidiary has
been refused any insurance coverage sought or applied for and neither the
Company nor any such Significant Subsidiary has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(p) Tax
Matters. There are no federal, state, county or local
taxes due and payable by the Company or any of its Significant Subsidiaries
which have not been paid. The provisions for taxes on the most recent
balance sheet of the Company are sufficient for the payment of all accrued and
unpaid federal, state, county and local taxes of the Company whether or not
assessed or disputed as of the respective dates of such balance
sheets. The Company and each of its Significant Subsidiaries has duly
filed all federal, state, county and local tax returns required to have been
filed by it and there are in effect no waivers of applicable statutes of
limitations with respect to taxes for any year. Neither the Company
nor any Significant Subsidiary is presently subject to a federal or state tax
audit of any kind.
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(q) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship
between the Company and an unconsolidated or other off balance sheet entity that
is required to be disclosed by the Company in its 1934 Act filings and is not so
disclosed or that otherwise would be reasonably likely to have a Material
Adverse Effect.
(r) OFAC. None
of the Company or any of its Significant Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee, affiliate or person acting
on behalf of any of the Company or any of its Significant Subsidiaries, 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 sale of the Units, or lend,
contribute or otherwise make available such proceeds to any Significant
Subsidiary, joint venture partner or other Person or entity, towards any sales
or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country
sanctioned by OFAC or for the purpose of financing the activities of any Person
currently subject to any U.S. sanctions administered by OFAC.
(s) Disclosure. The
Company confirms that neither it nor any other Person acting on its behalf has
provided any of the Investors or their agents or counsel with any information
that constitutes or could reasonably be expected to constitute material,
nonpublic information. The Company understands and confirms that each
of the Investors will rely on the foregoing representations in effecting
transactions in securities of the Company.
4. COVENANTS.
(a) Efforts to Satisfy
Conditions. Each party shall use its commercially reasonable efforts to
satisfy each of the conditions to be satisfied by it as provided in Sections 8
and 9 of this Agreement.
(b) Reporting Status.
Until the date on which the Investors (as defined in the Registration Rights
Agreement) shall have sold all the Warrant Shares and none of the
Shares or Warrants is outstanding
(the “Reporting
Period”), the Company shall timely file all reports required to be filed
with the SEC pursuant to the Exchange Act, and the Company shall not terminate
its status as an issuer required to file reports under the Exchange Act even if
the Exchange Act or the rules and regulations thereunder would otherwise permit
such termination.
(c) Financial
Information. Unless the following are filed with the SEC through EDGAR
and are available to the public through the EDGAR system, the Company agrees to
send the following to each Investor during the Reporting Period (i) within five
(5) Business Days (as defined herein) after the filing thereof with the SEC, a
copy of its Annual Reports on Form 10-K, any interim reports or any consolidated
balance sheets, income statements, stockholders’ equity statements and/or cash
flow statements for any period other than annual, any Current Reports on Form
8-K and any registration statements (other than on Form S-8) or amendments filed
pursuant to the Securities Act, (ii) within one (1) Business Day after the
release thereof, facsimile copies of all material press releases issued by the
Company or any of its Significant Subsidiaries, (iii) within two (2) Business
Days after the release thereof, facsimile copies of all other press releases
issued by the Company and (iv) copies of any notices and other information made
available or given to the stockholders of the Company generally,
contemporaneously with the making available or giving thereof to the
stockholders.
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(d) Listing. The Company
shall use its commercially reasonable efforts to promptly secure the listing of
all of the Registrable Securities (as defined in the Registration Rights
Agreement) upon each national securities exchange and automated quotation
system, if any, upon which the common stock is then listed (subject to official
notice of issuance) and shall use its commercially reasonable efforts to
maintain such listing of all Registrable Securities from time to time issuable
under the terms of the Transaction Documents. The Company shall use its
commercially reasonable efforts to maintain the common stock’s authorization for
quotation on the Principal Market. The Company shall not, nor shall it cause or
permit any of its Significant Subsidiaries to, take any action that would be
reasonably expected to result in the delisting or suspension of the Common Stock
on the Principal Market. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section 4(d).
(e) Fees. The Company
shall be responsible for the payment of any placement agent’s fees, financial
advisory fees, or broker’s commissions (other than for Persons engaged by the
Investor) relating to or arising out of the transactions contemplated hereby,
including, without limitation, any fees or commissions payable to the Agent. The
Company shall pay, and hold the Investor harmless against, any liability, loss
or expense (including, without limitation, reasonable attorney’s fees and
out-of-pocket expenses) arising in connection with any claim relating to any
such payment. Except as otherwise set forth in the Transaction Documents, each
party to this Agreement shall bear its own expenses in connection with the sale
of the Securities to the Investor. Without limiting the foregoing,
the Company agrees to pay to 3CM Partners Inc. at the final Closing an amount
not to exceed $210,000 in the aggregate for pre-transaction services, including
but not limited to due diligence and structuring, and, reimbursement for
out-of-pocket expenses and Investor legal fees.
(f) Pledge of Securities.
The Company acknowledges and agrees that the Securities may be pledged by the
Investor in connection with a bona fide margin agreement or other loan or
financing arrangement that is secured by the Securities. The pledge of
Securities shall not be deemed to be a transfer, sale or assignment of the
Securities hereunder, and the Investor shall not be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company
pursuant to this Agreement or any other Transaction Document, including, without
limitation, Section 2(a)(xviii) hereof; provided that the Investor and its
pledgee shall be required to comply with the provisions of Section 2(a)(xviii)
hereof in order to effect a sale, transfer or assignment of Securities to such
pledgee. The Company hereby agrees to execute and deliver such documentation as
a pledgee of the Securities may reasonably request in connection with a pledge
of the Securities to such pledgee by the Investor.
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(g) Disclosure of Transactions
and Other Material Information. On or before 8:30 a.m., New York Time,
on the first
Trading Day following the date hereof, the Company shall issue a press release
describing the terms of the transactions contemplated by the Transaction
Documents. On or before 8:30 a.m., New York Time, on the fourth Trading Day
following the date hereof, the Company shall file a Current Report on Form 8-K
describing the terms of the transactions contemplated by the Transaction
Documents in the form required by the Exchange Act, and attaching the material
Transaction Documents (including, without limitation, this Agreement (and all
schedules to this Agreement), the form of each of the Shares, the form of
Warrant, and the Registration Rights Agreement as exhibits to such filing
(including all attachments, the “8-K Filing”). From and after
the Closing, the Investor shall not be in possession of any material, nonpublic
information received from the Company or any of its respective officers,
directors, employees or agents, that is not disclosed in this Agreement or the
8-K Filing. The Company shall not, and shall cause its officers, directors,
employees and agents, not to, provide the Investor with, and the Investor shall
not request, any material, nonpublic information regarding the Company from and
after the Closing without the express written consent of the Investor. In the
event of a breach of the foregoing covenant by the Company or any of its
officers, directors, employees and agents, in addition to any other remedy
provided herein or in the Transaction Documents, the Investor shall have the
right to request the Company to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material, nonpublic
information without the prior approval by the Company or any of its officers,
directors, employees or agents. The Investor shall not have any liability to the
Company or any of its officers, directors, employees, stockholders or agents for
any such disclosure. Subject to the foregoing, neither the Company nor the
Investor shall issue any press releases or any other public statements with
respect to the transactions contemplated hereby; provided, however, that the
Company shall be entitled, without the prior approval of the Investor, to make
any press release or other public disclosure with respect to such transactions
(i) in substantial conformity with the 8-K Filing and contemporaneously
therewith and (ii) as is required by applicable law and regulations (provided
that in the case of clause (i) the Investor shall be consulted by the Company in
connection with and given an opportunity to review and comment on any such press
release or other public disclosure prior to its release). Notwithstanding the
foregoing, the Company shall not publicly disclose the name of the Investor, or
include the name of the Investor in any filing with the SEC or any regulatory
agency or the Principal Market, without the prior written consent of such
Investor, except (i) for disclosure thereof in the 8-K Filing or Registration
Statement or (ii) as required by law or Principal Market regulations or any
order of any court or other governmental agency, in which case the Company shall
provide such Investor with prior notice of such disclosure.
(h) Integration. None of
the Company or its affiliates and any Person acting on their behalf will take
any action or steps referred to in Section 3(f) that would require registration
of any of the Securities under the Securities Act or cause the offering of the
Securities to be integrated with other offerings.
(i) Holding Period. For
the purposes of Rule 144, the Company acknowledges that the holding period of
the Warrant Shares may be tacked onto the holding period of the Warrants (in the
case of Cashless Exercise (as defined in the Warrants)) and the Company agrees
not to take a position contrary to this Section 4(j).
(j) Use of Proceeds. The
Company intends to use the net proceeds from the Offering for general corporate
and working capital purposes, as well as possible acquisitions and not for any
other reason. .
(k) Reservation of
Shares. The Company shall take all action necessary to at all
times have authorized, and reserved for the purpose of issuance, no less than
(i) 100% of the number of Shares issuable hereunder and (ii) 125% of the Warrant
Shares (without taking into account any limitations on the exercise of the
Warrants set forth in the Warrants).
(l) Conduct of
Business. The business of the Company and its Significant
Subsidiaries shall not be conducted in violation of any law, ordinance or
regulation of any governmental entity, except where such violations would not
result, either individually or in the aggregate, in a Material Adverse
Effect.
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(m) New Auditor.
The Company shall engage a new independent public accounting firm (the “New Auditor”) reasonably
acceptable to the Majority Investors to conduct the Company’s audit for its
fiscal year ending December 31, 2011. The Company shall obtain the written
consent of the Majority Investors prior to engaging the New Auditor, which
consent shall not be unreasonably withheld. For purposes hereof, “Majority Investors” shall mean
the Investor or Investors holding a majority of the shares of Common Stock
issued pursuant to this Agreement.
5. INDEMNIFICATION.
(a) In
addition to all rights and remedies available to each Investor at law or in
equity, the Company hereby agrees to indemnify and fully defend, save and hold
each Investor and subsequent holder of the Units and the securities underlying
the Units, and their partners, members, directors, officers, employees, agents,
successors and assigns (collectively, the “Investor Indemnified Parties”)
harmless from and against any and all losses (including, without limitation,
diminutions in value), liabilities, obligations, damages, claims, causes of
action, judgments, assessments, penalties, costs and expenses, deficiencies,
interest, penalties or fines, which shall arise at any time or from time to time
whether or not arising out of any claims by or on behalf of any other Person,
including the reasonable fees, expenses, disbursements and all reasonable
amounts paid in investigation, defense, settlement of any of the foregoing of
one firm of attorneys and one firm of each other type of professionals
(collectively, “Losses”)
based upon, attributable to, in connection with, relating or incidental to or
resulting from:
(i) the
misrepresentation or breach of any representation or warranty of the Company set
forth in the Transaction Documents;
(ii) the
nonfulfillment or breach of any covenant on the part of the Company under any
Transaction Document; or
(iii) any
action, demand, proceeding, investigation or claim by any third-party
(including, without limitation, governmental agencies) against or affecting the
Company or any Significant Subsidiary which, if successful, would give rise to
or evidence the existence of or related to a breach of (i) any of the
representations or warranties at the time made or (ii) covenants of the
Company.
(b) In
the event that any third-party legal proceedings shall be instituted or any
third-party claim or demand (a “Claim”) shall be asserted by
any Person in respect of which payment may be sought under this Section 5, the
Investor Indemnified Party shall promptly cause written notice of the assertion
of any Claim of which it has knowledge which is covered by this indemnity to be
forwarded to the Company. The Company shall have the right, at its
sole option and expense, to be represented by counsel of its choice, which must
be reasonably satisfactory to the indemnified party, and to assume the defense
of, negotiate, settle or otherwise deal with any Claim which relates to any
Losses indemnified against hereunder. If the Company elects to assume the
defense of, negotiate, settle or otherwise deal with any Claim which relates to
any Losses indemnified against hereunder, it shall within five days of receipt
of written notice of the assertion of a Claim (or sooner, if the nature of the
Claim so requires) notify the Investor Indemnified Party of its intent to do
so. If the Company elects not to defend against, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder or fails to notify the Investor Indemnified Party of its election as
herein provided or contests its obligation to indemnify the Investor Indemnified
Party for such Losses under this Agreement, the Investor Indemnified Party may
defend against, negotiate, settle or otherwise deal with such
Claim. If the Investor Indemnified Party defends any Claim, then the
Company shall reimburse the Investor Indemnified Party for the reasonable
expenses of defending such Claim upon submission of periodic bills. If the
Company shall assume the defense of any Claim, the Investor Indemnified Party
may participate, at his or its own expense, in the defense of such Claim;
provided, however, that such Investor Indemnified Party shall be entitled to
participate in any such defense with separate counsel at the expense of the
Company if, (i) so requested by the Company to participate or (ii) in the
reasonable opinion of counsel to the Investor Indemnified Party, a conflict or
potential conflict exists between the Investor Indemnified Party and the Company
that would make such separate representation advisable. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such Claim.
15
(c) Any
indemnification of any Investor Indemnified Party by the Company pursuant to
this Section 5 shall be effected by wire transfer of immediately available funds
from the Company to an account designated by such Investor Indemnified Party
within 15 days after the date the payment of such amount is requested, in
accordance with the terms of this Agreement.
(d) The
failure of the Investor Indemnified Party to give reasonably prompt notice of
any Claim shall not release, waive or otherwise affect the Company’s obligations
with respect thereto except to the extent that the Company can demonstrate
actual loss and prejudice as a result of such failure.
6. ANTI-DILUTION. If
the Company shall at any time or from time to time (the “New Issue Date”) prior to the
date that is 18 months after the date of this Agreement issue or sell (x) shares
of Common Stock or (y) securities convertible into or exchangeable for shares of
Common Stock, or any options, warrants or other rights to acquire shares of
Common Stock at a price per share (the “New Issue Price”) that is less
than the price per share of Common Stock purchased pursuant to this Agreement
(which, for this purpose, shall be determined using the per Unit
price) (the “Original Issue Price”)
(treating the price per share of Common Stock, in the case of the issuance of
any security convertible or exchangeable or exercisable into Common Stock as
equal to (x) the sum of the price paid for such security convertible,
exchangeable or exercisable into Common Stock plus any additional consideration
payable (without regard to any anti-dilution adjustments) upon the conversion,
exchange or exercise of such security into Common Stock divided by (y) the
number of shares of Common Stock initially underlying such convertible,
exchangeable or exercisable security), then, and in each such case, the Company
shall issue and sell to the Investors that purchased Common Stock issued and
sold pursuant to this Agreement at a price of $0.001 per share, a number of
shares of Common Stock equal to the difference of (i) the number of shares of
Common Stock which the aggregate Original Issue Price paid for the shares of
Common Stock held by such Investor on the New Issue Date would have purchased on
the Closing Date at the New Issue Price, and (ii) the number of shares of Common
Stock held by such Investor on the New Issue Date. For purposes of any
subsequent anti-dilution adjustment for the benefit of the Investors, the
Original Issue Price shall be deemed to be the New Issue Price then in effect
prior to any such subsequent adjustment.
7. REGISTER. The
Company shall maintain at its principal executive offices (or such other office
or agency of the Company as it may designate by notice to each holder of
Securities), a register for the Shares and the Warrants, in which the Company
shall record the name and address of the Person in whose name the Shares
and the Warrants
have been issued (including the name and address of each transferee), and
Warrant Shares issuable upon exercise of the Warrants held by such Person. The
Company shall keep the register open and available at all times during business
hours for inspection of any Investor or its legal representatives.
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8.
CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL. The obligation of the Company
hereunder to issue and sell the Units to each Investor at the Closing is subject
to the satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing
each Investor with prior written notice thereof:
(a) Such
Investor shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Company.
(b) Such
Investor and each other Investor shall have delivered to the Company the
Purchase Price for the Units by wire transfer of immediately available funds
pursuant to the wire instructions provided by the Company.
(c) The
representations and warranties of such Investor shall be true and correct in all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on and as of the Closing Date, and such Investor
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by such Investor at or prior to the Closing
Date.
9. CONDITIONS TO EACH
INVESTOR’S OBLIGATION TO PURCHASE. The obligation of each Investor
hereunder to purchase the Units at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions, provided
that these conditions are for each Investor’s sole benefit and may be waived by
such Investor at any time in its sole discretion by providing the Company with
prior written notice thereof:
(a) The
Company shall have executed and delivered to such Investor (i) each of the
Transaction Documents, (ii) a certificate representing the Shares and (iii) a
Warrant.
(b) The
Company shall have delivered to such Investor (x) a certificate evidencing the
formation and good standing of the Company in such entity’s jurisdiction of
formation issued by the Secretary of State (or comparable office) of such
jurisdiction, as of a date within ten (10) days of the Closing Date and (y) a
facsimile or other acceptable method of confirmation from such Secretary of
State (or comparable office) as of the Closing Date as to the continued good
standing of such entity.
(c) The
representations and warranties of the Company shall be true and correct in all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on and as of the Closing Date, and the Company
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the Closing Date and
such Investor shall have received a certificate dated as of the Closing Date
executed by an authorized officer of the Company to such effect.
17
(d) The
Company shall have delivered to such Investor a certified copy of the Articles
of Incorporation as certified by the Secretary of State of the State of Nevada
within five (5) days of the Closing Date.
(e) The
common stock of the Company (I) shall be designated for quotation or listed on
the Principal Market and (II) shall not have been suspended, as of the Closing
Date, by the SEC or the Principal Market from trading on the Principal Market
nor shall suspension by the SEC or the Principal Market have been threatened, as
of the Closing Date, either (A) in writing by the SEC or the Principal Market or
(B) by falling below the minimum listing maintenance requirements of the
Principal Market.
(f) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(g) The
Investor shall have received the opinion of Stevens & Lee, P.C., the
Company’s U.S. counsel, dated as of the Closing Date, in form reasonably
satisfactory to the Investor.
10. TERMINATION. In
the event that the Closing shall not have occurred with respect to an Investor
on or before December 15, 2010 due to the Company’s or such Investor’s failure
to satisfy the conditions set forth in Sections 8 and 9 above (and the
nonbreaching party’s failure to waive such unsatisfied condition(s)), the
nonbreaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on such date without
liability of any party to any other party.
11. MISCELLANEOUS.
(a) Governing Law; Jurisdiction;
Jury Trial. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to residents of
that jurisdiction executing contracts wholly to be performed
therein. The Investor agrees that any action or proceeding directly
or indirectly relating to or arising out of this Agreement, any breach hereof,
or any transaction covered hereby shall be resolved, whether by arbitration or
otherwise, within the State of New York. Accordingly, the parties
consent and submit to the jurisdiction of the state courts of the State of New
York located within New York, New York or the United States federal courts
located in the Southern District of New York. The parties further
agree that any such relief whatsoever in connection with this Agreement shall be
commenced by such party exclusively in the state courts of the State of New York
located within New York, New York or the United States federal courts located in
the Southern District of New York.
(b) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
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(c) Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d) Severability. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or written
agreements between the Investor, the Company, their affiliates and Persons
acting on their behalf with respect to the matters discussed herein, and this
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor the
Investor makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be amended other
than by an instrument in writing signed by the Company and the holders of at
least a majority of the aggregate number of Registrable Securities issued and
issuable hereunder, and any amendment to this Agreement made in conformity with
the provisions of this Section 11(e) shall be binding on the Investor and
holders of Securities, as applicable. No provision hereof may be waived other
than by an instrument in writing signed by the party against whom enforcement is
sought. No such amendment shall be effective to the extent that it applies to
less than all of the holders of the applicable Securities then outstanding. No
consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties to the
Transaction Documents, holders of Shares, or holders of the Warrants, as the
case may be. The Company has not, directly or indirectly, made any agreements
with the Investor relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in the Transaction
Documents.
(f) Notices. Any notices,
consents, waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have
been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
Business Day after deposit with an overnight courier service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the
Company:
Shiner International, Inc.
19/F, Didu Building, Pearl River
Plaza
No. 2
North Longkun Road
Haikou,
Hainan Province, China 570125
Attn.:
Chief Executive Officer
Copy
to:
Stevens
& Lee, P.C.
1818
Market Street
Philadelphia,
PA 19306
Attn.:
William W. Uchimoto, Esq.
19
If to an
Investor, to its address and facsimile number set forth on the Schedule of
Investors, with copies to such Investor’s representatives as set forth on the
Schedule of Investors, or to such other address and/or facsimile number and/or
to the attention of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively; provided however that the foregoing clause (B) shall only be valid
if such communication contained in the facsimile is delivered by an overnight
courier service within 24 hours of the transmission of facsimile.
(g) Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns, including any
purchasers of the Shares or the Warrants. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the holders of at least a majority of the aggregate number of
Registrable Securities issued and issuable hereunder, including by way of a
Fundamental Transaction (unless the Company is in compliance with the applicable
provisions governing Fundamental Transactions set forth in the Shares and the
Warrants). An Investor may assign some or all of its rights hereunder without
the consent of the Company, in which event such assignee shall be deemed to be
an Investor hereunder with respect to such assigned rights.
(h) No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
Person.
(i) Survival. Unless this
Agreement is terminated under Section 10, the representations and warranties of
the Company and the Investors contained in Sections 2 and 3 and the agreements
and covenants set forth in Sections 4, 7 and 11 shall survive the Closing. Each
Investor shall be responsible only for its own representations, warranties,
agreements and covenants hereunder.
(j) Further Assurances.
Each party shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may
reasonably request to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(k) No Strict
Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party.
(l) Independent Nature of
Investors’ Obligations and Rights. The obligations of each Investor under
any Transaction Document are several and not joint with the obligations of any
other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Transaction
Document. Nothing contained herein or in any other Transaction Document, and no
action taken by any Investor pursuant hereto or thereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investors are in any
way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. Each Investor confirms
that it has independently participated in the negotiation of the transaction
contemplated hereby with the advice of its own counsel and advisors. Each
Investor shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement or out
of any other Transaction Documents, and it shall not be necessary for any other
Investor to be joined as an additional party in any proceeding for such
purpose.
20
(m) Remedies. Each
Investor and each holder of the Securities shall have all rights and remedies
set forth in the Transaction Documents and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any law. Any Person having any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it fails to perform, observe, or discharge any or all of
its obligations under the Transaction Documents, any remedy at law may prove to
be inadequate relief to such Investor. The Company therefore agrees that each
Investor shall be entitled to seek temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages and without
posting a bond or other security.
[Signature
Page Follows]
21
Subscription
Information (to be completed by individual subscriber):
Units
Purchased
________________________________________________________________________________
Purchase
Price of Units (Number of Units Purchased x $1.20 per Unit)
______________________________________
Name(s)
in which the Units is to be registered:
_____________________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
Home
Address
_________________________________________________________________________________
Mailing
Address
________________________________________________________________________________
Form of
joint ownership (if applicable). (If one of these items is checked,
subscriber and co-subscriber must both sign all documents.):
Tenants-in-Common_________________________
|
Joint
Tenants_________________________
|
IN WITNESS WHEREOF, the
undersigned has caused this Agreement to be duly executed on the ____ day of
December, 2010.
Please
Print Name of Subscriber
|
Signature
of Subscriber
|
Social
Security Number
|
||
Please
Print Name of Co-Subscriber
|
Signature
of Co-Subscriber
|
Social
Security
Number
|
[ATTACH
CHECK HERE]
22
THIS
PORTION NOT TO BE COMPLETED BY SUBSCRIBER
RECEIPT
AND ACCEPTANCE
FUNDS AND
AGREEMENT RECEIVED ON December __, 2010.
By:
|
SUBSCRIPTION
ACCEPTED ON DECEMBER 28, 2010.
SHINER
INTERNATIONAL, INC.
|
|
By:
|
/s/ Qingtao Xing
|
Qingtao
Xing
|
|
President
& Chief Executive Officer
|
WIRE
TRANSFER INSTRUCTIONS
If
Subscriber wishes to wire transfer the purchase price of his Units, he or she
shall wire transfer immediately available funds in the amount of the Purchase
Price subscribed for hereunder, as follows:
Bank:
Account
Name: Shiner
International Inc.
Account
No.:
Bank
Routing No.:
Swift
Code:
23
EXHIBIT
A
CONFIDENTIAL PURCHASER
QUESTIONNAIRE
ACCREDITED
INVESTOR STATUS
The
subscriber/investor represents that it is an Accredited Investor on the basis
that it is:
Initial
if
applicable
|
|
______
|
(1) The
subscriber/investor hereby represents that he/she is a director or
executive officer of the Company.
|
______
|
(2) The
subscriber/investor hereby represents that he/she is a natural person
whose “net worth” at the time of purchase of the Securities, or joint “net
worth” with the subscriber/investor’s spouse, exceeds
$1,000,000. For purposes of this category, “net worth” is
deemed to be exclusive of the value of the
subscriber/investor’s primary residence.
|
______
|
(3) The
subscriber/investor hereby represents that he/she is a natural person who
had income in excess of $200,000 in each of the two most recent years, or
who had joint income with the subscriber/investor’s spouse in excess of
$300,000 in each of those years, and who reasonably expects to reach the
same income level in the current year.
|
______
|
(4) The
subscriber/investor hereby represents that it is an IRA, Keogh or similar
benefit plan that covers a single natural person who is an accredited
investor. (If this category is initialed, please also initial the
additional category or categories under which the natural person qualifies
as an accredited investor.)
|
______
|
(5) The
subscriber/investor hereby represents that it is a trust with total assets
in excess of $5,000,000, not formed for the specific purpose of acquiring
the securities offered, whose purchase is directed by a sophisticated
person who has such knowledge and experience in financial and business
matters that he/she is capable of evaluating the merits and risks of an
investment in the Shares and Warrants of the Company.
|
______
|
(6) The
subscriber/investor hereby represents that it is a partnership,
corporation or other entity all of whose equity owners satisfy one or more
of the conditions set forth in (1) though (5), and a certification as
to such status by each such equity owner is attached hereto.
|
______
|
(7) The
subscriber/investor hereby represents that he/she/it is an accredited
investor not described above, based on the following
information:
|