Exhibit 4.8

 

NOVA LIFESTYLE, INC.

REGULATION S SUBSCRIPTION AGREEMENT

 

This Subscription Agreement pertains to the offering (the “ Offering ”) by Nova Lifestyle, Inc. (the “ Company ”) of up to Two Million Five Hundred Thousand (2,500,000) units (the “ Units ”), each such Unit consisting of one (1) share (the “ Shares ”) of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), and a warrant (the “ Warrants ”) to purchase fifteen percent (15%) of one (1) share of Common Stock at an exercise price of Four Dollars and Fifty Cents ($4.50) per share of Common Stock, at a purchase price of Four Dollars ($4.00) per Unit for an aggregate Offering of a minimum of Two Million Dollars ($2,000,000) (the “ Minimum Offering ”) up to a maximum of Ten Million Dollars ($10,000,000) (the “ Maximum Offering ”) as described in the Private Placement Offering Memorandum for the Units dated November 29, 2011, as the same hereto may be amended (the “ Offering Memorandum ”). The minimum subscription that the Company will accept from any investor is Four Thousand (4,000) Units for a purchase price of Sixteen Thousand Dollars ($16,000), which may be revised at the sole discretion of the Company. The Company is making this offering solely in an “offshore transaction” and to no “U.S. person” (as such terms are defined under Rules 902(h) and (k) of Regulation S promulgated under the Securities Act of 1933, as amended. This Offering is subject to one or more closing(s) of the sale of the Units (each a “ Closing ”) after the Minimum Offering amount has been reached, and a final closing of the sale of the Units (the “ Final Closing ”), which shall occur at any time after the Minimum Offering is reached on the earlier of: (i) January 31, 2012, or up to 60 days thereafter if the Company extends this Offering; (ii) any earlier date as determined by the Company; or (iii) the date on which the Company conducts a Closing in which the aggregate funds that have been received by Company equal the Maximum Offering.

The undersigned, intending to be legally bound, hereby offers to purchase from the Company the number of Units for the aggregate purchase price set forth on the signature page hereto (the “ Subscription ”).

The Company will be deemed to have accepted this offer upon execution by it of the Receipt and Acceptance attached to this Subscription Agreement. This Subscription is submitted to the Company subject to its acceptance and in accordance with, and subject to, the terms and conditions described in, this Subscription Agreement.

1.   Definitions . In addition to the terms defined elsewhere in this Subscription Agreement, for all purposes of this Subscription Agreement, the following terms shall have the meanings indicated in this Section 1:

“ Affiliate ” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 of the Securities Act.

“ Commission ” means the Securities and Exchange Commission.

“ Distributor ” means any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of the securities offered or sold in reliance on Regulation S.

 

 

“ Directed Selling Efforts ” means any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for any of the securities being offered in reliance on Regulation S. Such activity includes placing an advertisement in a publication with a general circulation in the United States that refers to the offering of securities being made in reliance upon Regulation S.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Insider ” means any Person that, as of the Closing, is an officer, director, employee or Affiliate of the Company and (i) any relative or spouse of such Person, or any relative of such spouse, any one of whom has the same home as such Person; (ii) any trust or estate in which such Person or any of the Persons specified in subclause (i) of this sentence collectively own 10% or more of the total beneficial interest or of which any of such Persons serve as trustee, executor or in any similar capacity; or (iii) any corporation or other organization (other than the Company) in which such Person or any of the Persons specified in subclause (i) of this sentence are the beneficial owners collectively of 10% or more of any class of equity securities or 10% or more of the equity interest.

“ Material Adverse Effect ” means any event, circumstance or development which individually or in the aggregate could have a material adverse effect on the business, properties, operations, condition (financial or otherwise), prospects, assets, liabilities, earnings or results of operations of the Company.

“ Offshore Transaction ” means an offer or sale of securities that is not made to a Person in the United States; and at the time the buy order is originated, the buyer is outside the United States, or the Company and any person acting on its behalf reasonably believe that the buyer is outside the United States.

“ Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“ Regulation S ” means Rules 901-905, including the Preliminary Notes, of Regulation S promulgated under the Securities Act.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Transaction Documents ” means this Subscription Agreement, the Warrants, the Registration Rights Agreement and any other documents or agreements, including any appendices, exhibits or attachments thereto, executed in connection with the transactions contemplated hereunder.

“ U.S. Person ” means:

i.	Any natural person resident in the United States;

 

 

ii.	Any partnership or corporation organized or incorporated under the laws of the United States;

iii.	Any estate of which any executor or administrator is a U.S. person;

iv.	Any trust of which any trustee is a U.S. person;

v.	Any agency or branch of a foreign entity located in the United States;

vi.	Any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person;

vii.	Any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; and

viii.

Any partnership or corporation if:

a.	Organized or incorporated under the laws of any foreign jurisdiction; and

b.

Formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by “accredited investors” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) who are not natural persons, estates or trusts.

“ U.S. Dollars ” and “ $ ” mean the lawful currency of the United States.

“ United States ” means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.

“ Warrant Shares ”   means the shares of Common Stock issuable upon exercise of the Warrants.

2.   Verification of Investor Suitability under Regulation S. The undersigned represents and warrants to the Company that the undersigned is not a U.S. Person and is domiciled and resides outside the United States as of the date hereof and is not acquiring the securities for the account or benefit of any U.S. Person. The undersigned agrees to resell the Units, Shares, Warrants or Warrant Shares only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration; and agrees not to engage in hedging transactions with regard to such securities unless in compliance with the Securities Act. The undersigned is not a Distributor. Furthermore, the undersigned understands that, as a condition to the Company’s acceptance of this Subscription, the undersigned must complete a Purchaser Questionnaire in the form attached hereto.

 

 

3.   Amount and Method of Payment . The purchase price for the Units is Four Dollars ($4.00) per Unit (the “ Unit Price ”) multiplied by the number of Units purchased by the undersigned as set forth on the signature page hereof (the “ Purchase Price ”). The Purchase Price shall be paid in U.S. Dollars only by wire transfer in immediately available funds to the special segregated escrow account (the “ Segregated Account ”) set forth in the Subscription Instructions attached hereto. All proceeds of this Offering will be deposited in the Segregated Account and will not be released to the Company until gross proceeds of at least Two Million Dollars ($2,000,000) have been deposited into the Segregated Account. If this amount is not received before January 31, 2012, as such date may be extended as provided in the Offering Memorandum, then the Purchase Price shall be returned to the undersigned in full without interest unless the Company determines, in its sole discretion, to extend the offering period. Affiliates of Placement Agents and the Company may purchase Units for their own account. Such purchases will be included in determining whether the minimum amount of this Offering has been sold.

4.   Acceptance of Subscription.

(a)   The undersigned understands and agrees that the Company, in its sole discretion, reserves the right to accept or reject this or any other subscription for Units in whole or in part at any time prior to the Closing.

(b)   In the event that this Subscription is rejected in whole or in part, the Company shall promptly return all or the applicable portion of the Purchase Price without interest to the undersigned, as the case may be, and this Subscription Agree­ment shall thereafter have no force or effect except with respect to the portion, if any, of this Subscription that is accepted by the Company.

5.   Registration Rights. Concurrently with the execution of this Subscription Agreement, the Company and the undersigned, provided that the undersigned is not deemed an Insider by the Company, have entered into a Registration Rights Agreement regarding the Shares and the Warrant Shares. Subscribers in the Offering deemed Insiders by the Company shall not be entitled to the registration rights provided by the Registration Rights Agreement.

6.   Restrictions on Resale or Transfer.

(a)   The Units, Shares, Warrants and Warrant Shares have not been registered under the Securities Act or any state securities laws, and may not be sold or transferred unless (i) such sale or transfer is subsequently registered thereunder; (ii) the undersigned 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 (iii) the securities are sold pursuant to the resale restrictions in Regulation S. The undersigned agrees not to engage in hedging transactions with regard to the securities unless in compliance with the Securities Act. The legend set forth in Section 6(b) below shall not be removed from the certificate(s) representing the Shares and the Warrant Shares and the Warrants under Regulation S until one year from the date of purchase unless the Shares and the Warrant Shares represented thereby have been registered under the Securities Act.

 

 

(b)   The certificate(s) representing the Shares and the Warrant Shares and the Warrants shall each bear restrictive legends in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such securities):

“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) IN ACCORDANCE WITH REGULATION S (RULE 901 THROUGH 905, AND PRELIMINARY NOTES), (ii) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (iii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW. ANY HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”

(c)           The Company refuses to register any transfer of the Units, Shares, Warrants or Warrant Shares not made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration.

7.   Delivery of the Stock Certificate and Warrants. The Company will execute and deliver certificate(s) representing the Shares and Warrants to the undersigned as soon as practicable after the occurrence of each of the following events: (i) acceptance of this Subscription by the Company; (ii) receipt of the Purchase Price into the Segregated Account; (iii) the Closing applicable to such Shares and Warrants; and (iv) release to the Company of the net proceeds attributable to the Closing from the Segregated Account.

8.   Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:

(a)   Non-U.S. Person Status . The undersigned hereby certifies that he, she or it is not a U.S. Person and is not acquiring the securities for the account or benefit of any U.S. Person. No offer to enter into this Subscription Agreement or purchase of any securities of the Company has been made by the Company to the undersigned at any time while the undersigned was in the United States, and at the time the order for the Units was originated the undersigned was not located within the United States.

 

(b)   No Directed Selling Efforts . Neither the undersigned, nor any of the undersigned’s Affiliates, nor any Person acting on the undersigned’s behalf or any behalf of any such Affiliate, will engage in any Directed Selling Effort prior to the expiration of any restricted period contained in Regulation S. To the best knowledge of the undersigned, this Subscription Agreement and the transactions contemplated herein are not part of a plan or scheme to evade the registration provisions of the Securities Act. The undersigned agrees that all offers and sales of the Common Stock from the date hereof and through the expiration of the any restricted period set forth in Rule 903 of Regulation S (as the same may be amended from time to time hereafter) shall not be made to U.S. Persons or for the account or benefit of U.S. Persons and shall otherwise be made in compliance with the provisions of Regulation S and any other applicable provisions of the Securities Act.

(c)   No General Solicitation . The undersigned has not received any general solicitation or advertising regarding the offering of the Units or entering into this Subscription Agreement.

(d)   Restricted Securities . The undersigned understands that the Units, Shares, Warrants and Warrant Shares it is purchasing are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the undersigned represents that it is familiar with Rule 903 of Regulation S promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. The undersigned understands that the such securities have not been and will not be registered under the Securities Act and have not been and will not be registered or qualified in any state in which they are offered, and thus the undersigned will not be able to resell or otherwise transfer such securities unless they are registered under the Securities Act and registered or qualified under applicable state securities laws, or an exemption from such registration or qualification is available or under the applicable provisions of Regulation S.

(e)   The undersigned understands that the offering and sale of the Units by the Company to the undersigned is intended to be exempt from registration under the Securities Act by virtue of Section 4(2) of the Securities Act and the provisions of Regulation S promulgated thereunder and, in accordance therewith and in furtherance thereof, the undersigned represents and warrants to and agrees with the Company as follows:

(i)   The undersigned has carefully reviewed the Offering Memorandum, this Subscription Agreement, the Purchaser Questionnaire, the Form of Stock Purchase Warrant and the Registration Rights Agreement attached hereto, including any appendices, exhibits or attachments thereto, and understands the information contained in each such document including, but not limited to, the financial statements included in the Offering Memorandum, attached as Appendix E thereto;

 

 

(ii)   All documents, records and books pertaining to the Company, the Offering and this investment that the undersigned has requested have been made available for inspection by the undersigned and the undersigned’s attorney, accountant and other investment advisor(s), if any;

(iii)   The undersigned and the undersigned’s investment advisor(s), 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 undersigned;

(iv)   Neither the undersigned nor the undersigned’s investment advisor(s), if any, have been furnished any offering literature other than the Offering Memorandum and the appendices attached thereto and the undersigned and the undersigned’s investment advisor(s), if any, have relied only on the information contained in the Offering Memorandum and the appendices attached thereto and the information, as described in subparagraphs (ii) and (iii) above, furnished or made available to them by the Company;

(v)   No oral or written representations have been made and no oral or written information has been furnished to the undersigned or the undersigned’s investment advisor(s), if any, in connection herewith that were in any way inconsistent with the information set forth in the Offering Memorandum and the appendices attached thereto;

(vi)   The undersigned acknowledges that it has conducted its own independent evaluation of the Company and has analyzed the risks associated with an investment in the Units and has based its decision to invest in the Units on the results of this evaluation and analysis and has not relied upon any Placement Agent to make this decision;

(vii)   The undersigned’s overall commitment to investments that are not readily market­able is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Company will not cause such overall commitment to become disproportionate to the undersigned’s net worth;

(viii)   If the undersigned is a natural person, the undersigned has reached the age of majority in the jurisdiction in which the undersigned resides, has adequate net worth and means of providing for the undersigned’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;

(ix)   The address set forth on the signature page below is the undersigned’s true and correct residence (or, if not an individual, domiciliary) address;

 

 

(x)   The undersigned (A) has such knowledge of, and experience in, business and financial matters so as to enable the undersigned to utilize the information made available to it 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 undersigned has carefully evaluated the risks of investing; and (C) has the capacity, either alone, or with a professional advisor, to protect the undersigned’s own interests in connection with a purchase of the Units;

(xi)   The undersigned is not relying on the Company with respect to the economic considerations of the undersigned relating to this investment. In regard to such considerations, the undersigned has relied on the advice of, or has consulted with, only the undersigned’s own investment advisor(s). The undersigned recognizes that the information furnished by the Company does not constitute investment, accounting, legal or tax advice. The undersigned is relying on professional advisors for such advice;

(xii)   The undersigned is acquiring the Units solely for the undersigned’s 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;

(xiii)   The undersigned understands that the certificate(s) evidencing ownership of the Shares and the Warrant Shares and the Warrants will each bear a restrictive legend and have not been registered under the Securities Act or any state securities laws, and may not be sold or transferred unless (A) such sale or transfer is subsequently registered thereunder; (B) the undersigned 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 (C) the securities are sold pursuant to Regulation S promulgated under the Securities Act (or a successor rule);

(xiv)   The undersigned 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 undersigned understands that no assurances can be given that the Shares, Warrants or Warrant Shares could be resold by the Subscriber for the Unit Price or any price and the undersigned has made an independent determination of the fairness of the Unit Price;

(xv)   The undersigned acknowledges that the information furnished by the Company or the Placement Agent to the undersigned or its advisors in connection with this Offering is confidential and nonpublic and agrees that all such information that is material and not yet publicly disseminated by the Company shall be kept in confidence by the undersigned and neither used by the undersigned for the undersigned’s personal benefit (other than in connection with this Subscription), nor disclosed to any third party, except the undersigned’s legal and other advisors who shall be advised of the confidential nature of such information, for any reason; provided, that this obligation shall not apply to any such information that (A) is part of the public knowledge or literature and readily accessible by the public as of the date of the Offering Memorandum, (B) becomes a part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision) or (C) is received from third parties (except for third parties who disclose such information in violation of any confidentiality obligation) ; and

 

 

(xvi)   The undersigned has completed and returned to the Company a Purchaser Questionnaire, in the form attached hereto. The information provided by the undersigned in the Purchaser Questionnaire is true and correct and the undersigned understands that the Company is relying upon such information in connection with the purchase of the Units by the undersigned.

(f)   The undersigned recognizes that an investment in the Units involves a number of significant risks including, but not limited to, those risks set forth under the “Risk Factors” in the Offering Memorandum.

(g)   The undersigned 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.

(h)   All information that the undersigned has heretofore furnished and furnishes herewith to the Company is true, correct and complete as of the date of execution of this Subscription Agreement and if there should be any material change in such information prior to the Closing, the undersigned will immediately furnish such revised or corrected informa­tion to the Company.

(i)   The undersigned represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with the undersigned nor any person or entity having a beneficial interest in the undersigned nor any other person or entity on whose behalf the undersigned is acting (1) is a person or entity listed in the annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), (2) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC), (3) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (4) is a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (5) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules or orders (categories (1) through (5) collectively, a “ Prohibited Investor ”). The undersigned agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. The undersigned consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its affiliates and agents of such information about the undersigned as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. If the undersigned is a financial institution that is subject to the PATRIOT Act, Public Law No. 107-56 (Oct. 26, 2001) (the “ Patriot Act ”), the undersigned represents that the undersigned has met all of its respective obligations under the Patriot Act. The undersigned acknowledges that if, following the investment in the Company by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in suspicious activity or refuses to provide promptly information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the undersigned to transfer the Shares. The undersigned further acknowledges that the undersigned will not have any claim against the Company or any of its affiliates or agents for any form of damages as a result of any of the foregoing actions.

 

 

(j)   The undersigned acknowledges and agrees that the Company intends to pay commissions to any registered broker-dealer or offshore finder, or Distributors, as such term is defined under Regulation S (the “ Placement Agents ”), on all sales of Units to qualified offshore investors that such Placement Agent refers to the Company pursuant to a contractual arrangement with the Company. These commissions will consist of cash equal to ten percent (10%) of such sales and warrants to purchase that number of shares of Common Stock equal to fifteen percent (15%) of the aggregate number of Units placed in the Offering by the Placement Agent at an exercise price of Four Dollars and Fifty Cents ($4.50) per share of Common Stock. In addition, the Company will pay the Placement Agents an expense allowance of up to $20,000.

(k)   The foregoing representations, warranties and agreements, together with all other representations and warranties made or given by the undersigned 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 Person is signing this Subscription Agreement, each representation, warranty and undertaking herein shall be the joint and several representation, warranty and undertaking of each such Person.

9.   Representations and Warranties of the Company. The Company hereby acknowledges, represents and warrants to, and agrees with, the undersigned as follows:

(a)   Organization and Qualification . The Company 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. The Company is not in violation of any of the provisions of its certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company 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.

(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 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 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 do not and will not (i) conflict with or violate any provision of the Company’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 debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company 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 is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected.

(d)   Filings, Consents and Approvals . 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 (i) the filing with the Commission 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 Subscription Agreement.

(e)   Issuance of the Units . The Units, and the Shares issuable under the Units and the Warrant Shares, 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 capital stock the shares of Common Stock issuable pursuant to this Subscription Agreement and the Warrants in order to issue the Shares and the Warrant Shares. The Company represents, warrants and covenants that:

(1)   The offer or sale of the securities hereunder is made in an Offshore Transaction;

(2)   No Directed Selling Efforts have been made in the United States by the Company, a Distributor, any of their respective Affiliates or any person acting on behalf of any of the foregoing; and

(3)   Offering restrictions have been implemented by the Company and any Distributor.

 

 

(f)   Material Misstatements . The Offering Memorandum, did not, as of the date thereof, and will not, as of the Closing, contain any untrue statement of a material fact or, together with the Company’s filings with the Commission, omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(g)   Authorized Capital . The Company’s authorized equity capitalization is as set forth in the Offering Memorandum; the Common Stock and the Warrants conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all of the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights to subscribe for or purchase securities. As of the date of the Offering Memorandum, there were 17,898,267 shares of Common Stock issued and outstanding and warrants to purchase 899,480 shares of Common Stock outstanding. The warrants are immediately exercisable, expire on the third anniversary of their issuance and entitle their holders to purchase up to 899,480 shares of Common Stock for $2.00 per share. The Company has reserved from its duly authorized capital stock the shares of Common Stock issuable pursuant to such outstanding warrants and may call such warrants at $4.00 per share at any time after: (i) a registration statement registering the common stock underlying the warrants becomes effective; (ii) the common stock is listed on a national securities exchange; and (iii) the closing price of the common stock equals or exceeds $4.00. The Company does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, convertible securities or obligations other than the outstanding warrants described above. All the outstanding shares of capital stock or other interests of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Offering Memorandum, all outstanding capital stock or other interests of the subsidiaries of the Company are owned by the Company free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. There are no contracts, agreements or understandings between the Company or any of its subsidiaries and any person granting such person the right to require the Company or any of its subsidiaries to register any securities with the Commission.

(h)   Investment Company Status . The Company is not and, after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Offering Memorandum, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.

(i)   Material Proceedings . No action, suit, proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or any of its or their properties is pending or, to the knowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect.

 

 

(j)   Compliance with Obligations . Neither the Company nor any of its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or other organizational documents, other than as listed on Schedule 9(j) attached hereto; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or pursuant to which its or their property is subject, in each case, in any material respect; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, in the case of this clause (iii), for violations or defaults that could not reasonably be expected to have a Material Adverse Effect.

(k)   Government Licenses . The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities required to conduct their respective businesses as described in the Offering Memorandum, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit.

(l)   Tax Matters . The Company has filed all foreign, federal, state and local tax returns that are required to be filed by it or has requested extensions thereof and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith.

(m)   Material Adverse Change . Except as otherwise disclosed in the Offering Memorandum since September 30, 2011: (i) there has been no material adverse change, or any event or development that could reasonably be expected to result in a material adverse change, in the condition (financial or otherwise), prospects, earnings, business, operations or properties of the Company or any of its subsidiaries, taken as a whole (any such change, a “ Material Adverse Change ”); (ii) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or obligation (including any off-balance sheet obligation), indirect, direct or contingent, nor entered into any material transaction or agreement; and (iii) there has been no (x) dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries, any of its subsidiaries on any class of capital stock or other interests or (y) repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock or other interests.

(n)   Financial Statements . The consolidated historical financial statements and schedules of the Company and its subsidiaries attached to the Offering Memorandum present fairly the financial condition of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The financial data set forth in the Offering Memorandum fairly presents the information set forth therein on a basis consistent with that of the audited financial statements that are attached to the Offering Memorandum.

 

 

(o)   Auditors . Marcum Bernstein and Pinchuk LLP, which has certified certain financial statements of the Company and its subsidiaries and delivered its report with respect to the audited financial statements and schedules attached to the Offering Memorandum, is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the Exchange Act, and the applicable rules and regulations thereof.

(p)   Registration . It is not necessary, in connection with the issuance and sale of the Units, in the manner contemplated by the Transaction Documents and the Offering Memorandum, to register the offer and sale of the Units under the Securities Act.

(q)   Property . The Company and each of its subsidiaries own all such properties as are necessary to the conduct of its operations as presently conducted. The Company and each of its subsidiaries has good and marketable title to all real property and all other property and assets owned by it, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it. The Company and each of its subsidiaries holds any leased property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by it.

(r)   Environmental Regulations . The Company and its subsidiaries (i) are and have been in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the environment, hazardous or toxic substances or wastes, pollutants or contaminants, or the protection of human health and safety (“ Environmental Laws ”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice and are not aware of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals or liability would not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business. Neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and neither the Company nor any of its subsidiaries is subject to any pending or threatened action by any governmental authority where the potential monetary sanctions against the Company or any of its subsidiaries could reasonably be expected to exceed $100,000.

(s)   Employee Retirement Income Security Act of 1974 . None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the ERISA, and the regulations and published interpretations thereunder with respect to a Plan (as herein defined), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries that could have a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that could have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related to their employment that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries may have any liability.

 

 

(t)   Labor . No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, that could reasonably be expected to have a Material Adverse Effect.

(u)   Intellectual Property . The Company or one of its subsidiaries has sole and exclusive ownership of all right, title and interest in and to, or has a valid and enforceable right to use pursuant to written licenses, all patents, patent applications, other patent rights, trademarks, service marks, trade names, trade dress, designs, logos, copyrights, software, inventions, trade secrets, technology, domain names, know-how, processes, databases and other intellectual property, whether registered or unregistered and in any jurisdiction (collectively, the “ Intellectual Property ”) necessary for the conduct of, or used in, the Company’s and its subsidiaries’ businesses as now conducted or as proposed in the Offering Memorandum to be conducted, free and clear of all liens and encumbrances, and (a) to the Company’s knowledge, there is no infringement or unauthorized use by third parties of any such Intellectual Property (with the definition of Intellectual Property in this clause (a) excluding commercially available “off-the shelf” software); (b) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by any third party (including any governmental authority) challenging the validity, scope or enforceability of, or the Company’s and its subsidiaries’ rights in and to, any such Intellectual Property (with the definition of Intellectual Property in this clause (b) excluding commercially available “off-the shelf” software), with the exception of proceedings by governmental authorities responsible for prosecuting pending patent and trademark applications, and, in each case, the Company is unaware of any facts which would form a reasonable basis for any such claim; (c) the Company’s and each of its subsidiaries’ businesses as now conducted and as proposed to be conducted does not and will not infringe, conflict with or otherwise violate any Intellectual Property rights of any third party under the laws of the United States of America or the People’s Republic of China and, to the Company’s knowledge, under the laws of any jurisdiction other than the United States of America and the People’s Republic of China, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by any third party (including any governmental authority) alleging that the Company’s or any of its subsidiaries’ businesses infringes, conflicts with or otherwise violates any Intellectual Property rights of any third party; (d) all licenses for Intellectual Property owned or used by the Company or any of its subsidiaries are valid, binding upon and enforceable by or against the parties thereto in accordance with their terms; (e) the Company and each of its subsidiaries has complied in all material respects with, and is not in breach of nor has received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other party to any Intellectual Property license; (f) the Company and each of its subsidiaries is diligently prosecuting all patent applications it has filed, except for those patent applications or claims in such patent applications that the Company or its subsidiary, as the case may be, has decided to abandon in its reasonable business judgment; (g) to the Company’s knowledge, there is no U.S. patent or published U.S. patent application which discloses or claims the same subject matter as any Intellectual Property described in the Offering Memorandum as being owned by the Company or any of its subsidiaries, or that would form the basis for provoking any interference proceeding at the U.S. Patent and Trademark Office with any issued or pending claims of any such Intellectual Property; (h) there is no prior art that has not been disclosed to the U.S. Patent and Trademark Office of which the Company is aware that may render any U.S. patent held or sought by the Company or any of its subsidiaries invalid or any U.S. patent application held or sought by the Company or any of its subsidiaries unpatentable; (i) the Company and each of its subsidiaries has employed and will continue to employ all efforts in its reasonable business judgment to protect, maintain and safeguard its Intellectual Property rights, including the execution of appropriate nondisclosure and confidentiality agreements and (j) all issue fees, maintenance fees, annuities and other governmental fees required to maintain the Intellectual Property have been paid to date.

 

 

(v)   Foreign Corrupt Practices Act.  None of the Company, any of its subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee, consultant or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by any such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), including without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries, and to the knowledge of the Company, its affiliates, have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

(w)   Currency and Foreign Transactions Reporting Act of 1970 . The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any 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 knowledge of the Company, threatened.

 

(x)   Office of Foreign Assets Control . None of the Company, any of its subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee, consultant or affiliate of the Company or any of its 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 Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities or any person currently subject to any U.S. sanctions administered by OFAC.

 

 

(y)   Minutes of Meetings . The minute books of the Company and each of its subsidiaries have been made available to the undersigned and Placement Agents, and such books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee, if any) and shareholders of the Company and each of such subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions authorized in such minutes or written consents.

(z)   Integration . The Company has not sold or issued any securities that would be integrated with this Offering pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.

(aa)   National Securities Exchange . The Company does not have any class of stock listed or quoted on a national securities exchange as defined under the Exchange Act.

(bb)   Legal Proceedings of Directors and Officers. To the Company’s knowledge, none of the current or former directors or officers of the Company or any of its subsidiaries is or has ever been subject to prior regulatory, criminal or bankruptcy proceedings in the United States or elsewhere.

10.   Notice to the Undersigned .

THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

  THE UNITS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. SUBSCRIBERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE COMPANY SHALL NOT REGISTER ANY TRANSFER OF THE SHARES NOT MADE IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.

 

 

11.   Indemnification. The undersigned agrees to indemnify and hold harmless the Company and the officers and directors thereof and each other person, if any, who controls the Company, within the meaning of Section 15 of the Securities Act, against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representations or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to the Company in connection with this transaction.

12.   Additional Information. The undersigned hereby acknowledges and agrees that the Company may make or cause to be made such further inquiry and obtain such addi­tional information as it may deem appropriate with regard to the suitability of the undersigned as an investor in the Units.

13.   Binding Effect. The undersigned hereby acknowledges and agrees that, except as provided under applicable state securities laws and where a change in the financial condition or business of the Company prior to the Final Closing has a Material Adverse Effect on the Company, the Subscription hereunder is irrevocable, that the undersigned is not entitled to cancel, terminate or revoke this Subscription Agreement or any agreements of the undersigned hereunder and that this Subscription Agreement and such other agreements shall survive the death or disability of the undersigned and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligations of the undersigned hereunder shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his, her or its heirs, executors, admin­istrators, successors, legal representatives and assigns. This Subscription Agreement shall specifically inure to the benefit of each officer and director of the Company, irrespective of the fact that one or more of them are not parties to this Subscription Agreement.

14.   Modification. Neither this Subscription Agreement nor any provisions hereof shall be waived, modified, discharged or terminated except by an instrument in writing signed by the party against whom any such waiver, modification, discharge or termination is sought.

15.   Notices. Any notice, demand or other communication that any party hereto may be required, or may elect, to give to any other party hereunder shall be sufficiently given if (a) deposited, postage prepaid, in a United States mail box, stamped, registered or certified mail, return receipt requested, addressed to such address as may be listed on the books of the Company, or (b) delivered personally at such address.

 

 

16.   Counterparts. This Subscription Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. This Subscription Agreement may be executed and delivered via electronic facsimile transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.

17.   Entire Agreement. This Subscription Agreement contains the entire agreement of the parties with respect to the subject matter hereof and there are no representations, covenants or other agreements except as stated or referred to herein.

18.   Severability. Each provision of this Subscription Agreement is intended to be severable from every other provision, and the invalidity or illegality of any provision shall not affect the validity or legality of the remaining provisions.

19.   Assignability. This Subscription Agreement is not transferable or assignable by the undersigned.

20.   Applicable Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws.

21.   Choice of Jurisdiction. The undersigned agrees that any action or proceeding directly or indirectly relating to or arising out of this Subscription 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 Subscription 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. Each party hereto irrevocably waives the right to claim as a defense or otherwise that the foregoing jurisdictions are an inconvenient forum.

22.   Reimbursement. If any action or other proceeding is brought for the enforcement of this Subscription Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Subscription Agreement, the suc­cessful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in such action or proceeding in addition to any other relief to which they may be entitled.

23.   Further Assurances. Each of the parties shall execute said documents and other instruments and take such further actions as maybe reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby.

 

Schedule 9(j)

Company Compliance with Obligations

The Company and each of its subsidiaries, as of the date of the Offering Memorandum, are in compliance with its charter, bylaws and other organizational documents, except as follows:

On September 24, 2009, the shareholders of Nova Dongguan authorized an amendment to the Articles of Association of Nova Dongguan, effective as of September 24, 2009, to increase in the registered capital of Nova Dongguan from $8 million to $20 million, with such contribution to registered capital to be made within 24 months from receipt of PRC government approval for the increase in registered capital. On November 16, 2009, the Foreign Trade and Economic Cooperation Bureau of Dongguan in Dongguan, Guangdong Province, China, approved the increase in the registered capital of Nova Dongguan to $20 million, with the $12 million in additional contribution of capital to be paid within 24 months. As of September 30, 2011, Nova Dongguan has received additional capital contributions of $2.9 million from its shareholders and $0.99 million from its U.S. parent company. The remaining $8.11 million of additional contribution to capital became due on November 16, 2011. Nova Dongguan has applied for a six-month extension of the payment period, effective retroactively to November 2011 upon PRC government approval, as allowed by PRC regulations for foreign-invested enterprises, which Nova Dongguan expects to receive by January 2012. Nova Dongguan may also apply for a reduction of its registered capital requirement. If Nova Dongguan does not receive an extension or reduction of registered capital, and the Company is unable to make the required contribution to registered capital, Nova Dongguan may be required to pay a negotiated penalty, typically 3% to 5% of the unsatisfied contribution of registered capital remaining outstanding, or up to $405,000 based on the amount remaining outstanding as of November 16, 2011. After a six-month period following payment of any such penalty, Nova Dongguan may request a reduction of its registered capital to the amount already contributed with the outstanding balance waived without risk of business license revocation. Nova Dongguan will amend its Articles of Association to reflect any changes to the authorized amount of registered capital.

 

Units Purchased:
Purchase Price of Units: (Number of Units Purchased x $4.00 per Unit)

Name in which the Units are to be registered:

 

Address of Record:

 

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---

 

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IN WITNESS WHEREOF , the undersigned has caused this Subscription Agreement to be duly executed on the ____ day of                                , 201_.

Name of Entity

 

By:                                                                                                          

    Name:

    Title:

Please reference the name of the Subscriber for whom payment should be credited on all wire instructions.

 

 

 

 

Units Purchased:
Purchase Price of Units: (Number of Units Purchased x $4.00 per Unit)

Name(s) in which the Units are to be registered:

                                                                                                                                                                                               

Home Address:                                                                                                                                                                   

Mailing Address (if different):                                                                                                                                           

Form of joint ownership (if applicable). (If checked, subscriber and co-subscriber both must sign all documents.):

Please reference the name(s) of the Subscriber(s) for whom payment should be credited on all wire instructions.

 

 

SUBSCRIBER NAME:                                                                                      

THIS PORTION NOT TO BE COMPLETED BY SUBSCRIBER

 

RECEIPT AND ACCEPTANCE

PAYMENT AND SUBSCRIPTION AGREEMENT RECEIVED ON                                                                                                                                                 , 201_

By:                                                                            

      Name:

      Title:

SUBSCRIPTION ACCEPTED ON                                                                                                 , 201_

NOVA LIFESTYLE, INC.

By:                                                                                                                                                     

Exhibit 4.9

 

 

This Subscription Agreement pertains to the offering (the “ Offering ”) by Nova Lifestyle, Inc. (the “ Company ”) of up to Two Million Five Hundred Thousand (2,500,000) units (the “ Units ”), each such Unit consisting of one (1) share (the “ Shares ”) of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), and a warrant (the “ Warrants ”) to purchase fifteen percent (15%) of one (1) share of Common Stock at an exercise price of Four Dollars and Fifty Cents ($4.50) per share of Common Stock, at a purchase price of Four Dollars ($4.00) per Unit for an aggregate Offering of a minimum of Two Million Dollars ($2,000,000) (the “ Minimum Offering ”) up to a maximum of Ten Million Dollars ($10,000,000) (the “ Maximum Offering ”) as described in the Private Placement Offering Memorandum for the Units dated November 29, 2011, as the same hereto may be amended (the “ Offering Memorandum ”). The minimum subscription that the Company will accept from any investor is Four Thousand (4,000) Units for a purchase price of Sixteen Thousand Dollars ($16,000), which may be revised at the sole discretion of the Company. The Company is making this offering solely to “accredited investors” (as defined under Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended). This Offering is subject to one or more closing(s) of the sale of the Units (each a “ Closing ”) after the Minimum Offering amount has been reached, and a final closing of the sale of the Units (the “ Final Closing ”), which shall occur at any time after the Minimum Offering is reached on the earlier of: (i) January 31, 2012, or up to 60 days thereafter if the Company extends this Offering; (ii) any earlier date as determined by the Company; or (iii) the date on which the Company conducts a Closing in which the aggregate funds that have been received by Company equal the Maximum Offering.

The undersigned, intending to be legally bound, hereby offers to purchase from the Company the number of Units for the aggregate purchase price set forth on the signature page hereto (the “ Subscription ”).

The Company will be deemed to have accepted this offer upon execution by it of the Receipt and Acceptance attached to this Subscription Agreement. This Subscription is submitted to the Company subject to its acceptance and in accordance with, and subject to, the terms and conditions described in, this Subscription Agreement.

1.   Definitions . In addition to the terms defined elsewhere in this Subscription Agreement, for all purposes of this Subscription Agreement, the following terms shall have the meanings indicated in this Section 1:

“ Affiliate ” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 of the Securities Act.

“ Commission ” means the Securities and Exchange Commission.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ GAAP ” means the generally accepted accounting principles in the United States as in effect on the date hereof.

“ Insider ” means any Person that, as of the Closing, is an officer, director, employee or Affiliate of the Company and (i) any relative or spouse of such Person, or any relative of such spouse, any one of whom has the same home as such Person; (ii) any trust or estate in which such Person or any of the Persons specified in subclause (i) of this sentence collectively own 10% or more of the total beneficial interest or of which any of such Persons serve as trustee, executor or in any similar capacity; or (iii) any corporation or other organization (other than the Company) in which such Person or any of the Persons specified in subclause (i) of this sentence are the beneficial owners collectively of 10% or more of any class of equity securities or 10% or more of the equity interest.

“ Material Adverse Effect ” means any event, circumstance or development which individually or in the aggregate could have a material adverse effect on the business, properties, operations, condition (financial or otherwise), prospects, assets, liabilities, earnings or results of operations of the Company.

“ Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Transaction Documents ” means this Subscription Agreement, the Warrants, the Registration Rights Agreement and any other documents or agreements, including any appendices, exhibits or attachments thereto, executed in connection with the transactions contemplated hereunder.

“ Warrant Shares ”   means the shares of Common Stock issuable upon exercise of the Warrants.

2.   Verification of Investor Suitability under Regulation D. The undersigned understands that in order to subscribe for the Units in this Offering, the undersigned must be an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and the undersigned hereby represents and warrants that it is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. Furthermore, the undersigned understands that, as a condition to the Company’s acceptance of this Subscription, the undersigned must complete a Purchaser Questionnaire in the form attached hereto.

3.   Amount and Method of Payment . The purchase price for the Units is Four Dollars ($4.00) per Unit (the “ Unit Price ”) multiplied by the number of Units purchased by the undersigned as set forth on the signature page hereof (the “ Purchase Price ”). The Purchase Price shall be paid by tender of a check made payable to Nova Lifestyle, Inc. Private Placement Escrow Account or wire transfer in immediately available funds to the special segregated escrow account (the “ Segregated Account ”) set forth in the Subscription Instructions attached hereto. All proceeds of this Offering will be deposited in the Segregated Account and will not be released to the Company until gross proceeds of at least Two Million Dollars ($2,000,000) have been deposited into the Segregated Account. If this amount is not received before January 31, 2012, as such date may be extended as provided in the Offering Memorandum, then the Purchase Price shall be returned to the undersigned in full without interest unless the Company determines, in its sole discretion, to extend the offering period. Affiliates of Placement Agents and the Company may purchase Units for their own account. Such purchases will be included in determining whether the minimum amount of this Offering has been sold.

 

4.   Acceptance of Subscription.

(a)   The undersigned understands and agrees that the Company, in its sole discretion, reserves the right to accept or reject this or any other subscription for Units in whole or in part at any time prior to the Closing.

(b)   In the event that this Subscription is rejected in whole or in part, the Company shall promptly return all or the applicable portion of the Purchase Price without interest to the undersigned, as the case may be, and this Subscription Agree­ment shall thereafter have no force or effect except with respect to the portion, if any, of this Subscription that is accepted by the Company.

5.   Registration Rights. Concurrently with the execution of this Subscription Agreement, the Company and the undersigned, provided that the undersigned is not deemed an Insider by the Company, have entered into a Registration Rights Agreement regarding the Shares and the Warrant Shares. Subscribers in the Offering deemed Insiders by the Company shall not be entitled to the registration rights provided by the Registration Rights Agreement.

6.   Restrictions on Resale or Transfer.

(a)   The Units, Shares, Warrants and Warrant Shares have not been registered under the Securities Act or any state securities laws, and may not be sold or transferred unless (i) such sale or transfer is subsequently registered thereunder; (ii) the undersigned 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 (iii) the securities are sold pursuant to Rule 144 promulgated under the Securities Act (or a successor rule).

(b)   The certificate(s) representing the Shares and the Warrant Shares and the Warrants shall each bear 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 REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.”

 

7.   Delivery of the Stock Certificate and Warrants. The Company will execute and deliver certificate(s) representing the Shares and Warrants to the undersigned as soon as practicable after the occurrence of each of the following events: (i) acceptance of this Subscription by the Company; (ii) receipt of the Purchase Price into the Segregated Account; (iii) the Closing applicable to such Shares and Warrants; and (iv) release to the Company of the net proceeds attributable to the Closing from the Segregated Account.

8.   Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:

(a)   The undersigned understands that the offering and sale of the Units by the Company to the undersigned is intended to be exempt from registration under the Securities Act by virtue of Section 4(2) of the Securities Act and the provisions of Rule 506 of Regulation D promulgated thereunder and, in accordance therewith and in furtherance thereof, the undersigned represents and warrants to and agrees with the Company as follows:

(i)   The undersigned has carefully reviewed the Offering Memorandum, this Subscription Agreement, the Purchaser Questionnaire, the Form of Stock Purchase Warrant and the Registration Rights Agreement attached hereto, including any appendices, exhibits or attachments thereto, and understands the information contained in each such document including, but not limited to, the financial statements included in the Offering Memorandum, attached as Appendix E thereto;

(ii)   All documents, records and books pertaining to the Company, the Offering and this investment that the undersigned has requested have been made available for inspection by the undersigned and the undersigned’s attorney, accountant and other investment advisor(s), if any;

(iii)   The undersigned and the undersigned’s investment advisor(s), 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 undersigned;

(iv)   The undersigned has not relied upon any Placement Agent in connection with the Offering in making its investment decision with respect to whether to invest in the Units offered by the Company in the Offering;

 

(v)   Neither the undersigned nor the undersigned’s investment advisor(s), if any, have been furnished any offering literature other than the Offering Memorandum and the appendices attached thereto and the undersigned and the undersigned’s investment advisor(s), if any, have relied only on the information contained in the Offering Memorandum and the appendices attached thereto 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 undersigned or the undersigned’s investment advisor(s), if any, in connection herewith that were in any way inconsistent with the information set forth in the Offering Memorandum and the appendices attached thereto;

(vii)   The undersigned 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 undersigned acknowledges that it has conducted its own independent evaluation of the Company and has analyzed the risks associated with an investment in the Units and has based its decision to invest in the Units on the results of this evaluation and analysis;

(ix)   The undersigned’s overall commitment to investments that are not readily market­able is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Company will not cause such overall commitment to become disproportionate to the undersigned’s net worth;

(x)   If the undersigned is a natural person, the undersigned has reached the age of majority in the jurisdiction in which the undersigned resides, has adequate net worth and means of providing for the undersigned’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 on the signature page below is the undersigned’s true and correct residence (or, if not an individual, domiciliary) address;

(xii)   The undersigned (A) has such knowledge of, and experience in, business and financial matters so as to enable the undersigned to utilize the information made available to it 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 undersigned has carefully evaluated the risks of investing; and (C) has the capacity, either alone, or with a professional advisor, to protect the undersigned’s own interests in connection with a purchase of the Units;

(xiii)   The undersigned is not relying on the Company with respect to the economic considerations of the undersigned relating to this investment. In regard to such considerations, the undersigned has relied on the advice of, or has consulted with, only the undersigned’s own investment advisor(s). The undersigned recognizes that the information furnished by the Company does not constitute investment, accounting, legal or tax advice. The undersigned is relying on professional advisors for such advice;

(xiv)   The undersigned is acquiring the Units solely for the undersigned’s 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;

(xv)   The undersigned understands that the certificate(s) evidencing ownership of the Shares and the Warrant Shares and the Warrants will each bear a restrictive legend and have not been registered under the Securities Act or any state securities laws, and may not be sold or transferred unless (A) such sale or transfer is subsequently registered thereunder; (B) the undersigned 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 (C) the securities are sold pursuant to Rule 144 promulgated under the Securities Act (or a successor rule);

(xvi)   The undersigned 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 undersigned understands that no assurances can be given that the Shares, Warrants or Warrant Shares could be resold by the Subscriber for the Unit Price or any price and the undersigned has made an independent determination of the fairness of the Unit Price;

(xvii)   The undersigned acknowledges that the information furnished by the Company or the Placement Agent to the undersigned or its advisors in connection with this Offering is confidential and nonpublic and agrees that all such information that is material and not yet publicly disseminated by the Company shall be kept in confidence by the undersigned and neither used by the undersigned for the undersigned’s personal benefit (other than in connection with this Subscription), nor disclosed to any third party, except the undersigned’s legal and other advisors who shall be advised of the confidential nature of such information, for any reason; provided, that this obligation shall not apply to any such information that (A) is part of the public knowledge or literature and readily accessible by the public as of the date of the Offering Memorandum, (B) becomes a part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision) or (C) is received from third parties (except for third parties who disclose such information in violation of any confidentiality obligation) ;

 

 

(1)   The undersigned and its plan fiduciaries are not affiliated with, and are independent of, the Company, and are informed of and understand the Company’s investment objectives, policies and strategies.

(2)   The undersigned represents and warrants that its purchase, holding and disposition of the Units will not involve any non-exempt prohibited transaction under Section 406 of ERISA or in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code, or which is prohibited under, or in connection with which a penalty or tax could be imposed under, Similar Laws.

(3)   The trustee or other plan fiduciary directing the investment:

(a)   in making the proposed investment, is aware of and has taken into consideration the applicable diversification requirements of Section 404(a)(1)(C) of ERISA, the Code or Similar Laws;

(b)   has concluded that the proposed investment in the Company is prudent and is consistent with the other applicable fiduciary responsibilities under ERISA, the Code or Similar Laws; and

(c)   the proposed investment in the Company and purchase of the Units is in accordance with the terms of the plan’s governing instruments and complies with all applicable requirements of ERISA, the Code and Similar Laws.

(4)   This Subscription Agreement has been duly executed by a duly designated Named Fiduciary (within the meaning of Section 402(a)(2) of ERISA), if applicable to such plan.

 

(b)   The undersigned recognizes that an investment in the Units involves a number of significant risks including, but not limited to, those risks set forth under the “Risk Factors” in the Offering Memorandum.

(c)   The undersigned 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 undersigned has heretofore furnished and furnishes herewith to the Company is true, correct and complete as of the date of execution of this Subscription Agreement and if there should be any material change in such information prior to the Closing, the undersigned will immediately furnish such revised or corrected informa­tion to the Company.

(e)   The undersigned certifies that it is NOT (1) a non-resident alien or (2) a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code) for purposes of U.S. federal income taxation. The undersigned agrees to notify the Company within 60 days of the date it becomes a foreign person or entity. The undersigned further certifies that its name, U.S. tax identification number, home address (in the case of an individual) and business address (in the case of an entity) as they appear in this Subscription Agreement are true and correct. The undersigned further certifies that it is NOT subject to backup withholding because either (1) it is exempt from backup withholding, (2) it has not been notified by the Internal Revenue Service (“ IRS ”) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified it that it is no longer subject to backup withholding. The undersigned understands that these certifications, which are made under penalty of perjury, may be disclosed to the IRS by the Company and that any false statements contained in this paragraph could be punished by fine and imprisonment.

(f)   The undersigned represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with the undersigned nor any person or entity having a beneficial interest in the undersigned nor any other person or entity on whose behalf the undersigned is acting (1) is a person or entity listed in the annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), (2) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC), (3) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (4) is a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (5) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules or orders (categories (1) through (5) collectively, a “ Prohibited Investor ”). The undersigned agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. The undersigned consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its affiliates and agents of such information about the undersigned as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. If the undersigned is a financial institution that is subject to the PATRIOT Act, Public Law No. 107-56 (Oct. 26, 2001) (the “ Patriot Act ”), the undersigned represents that the undersigned has met all of its respective obligations under the Patriot Act. The undersigned acknowledges that if, following the investment in the Company by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in suspicious activity or refuses to provide promptly information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the undersigned to transfer the Shares. The undersigned further acknowledges that the undersigned will not have any claim against the Company or any of its affiliates or agents for any form of damages as a result of any of the foregoing actions.

 

(g)   The undersigned acknowledges and agrees that the Company intends to pay commissions to any registered broker-dealer or finder designated a selected dealer (the “ Placement Agents ”) on all sales of Units to qualified accredited investors that such Placement Agent refers to the Company pursuant to a contractual arrangement with the Company. These commissions will consist of cash equal to ten percent (10%) of such sales and warrants to purchase that number of shares of Common Stock equal to fifteen percent (15%) of the aggregate number of Units placed in the Offering by the Placement Agent at an exercise price of Four Dollars and Fifty Cents ($4.50) per share of Common Stock. In addition, the Company will pay the Placement Agents an expense allowance of up to $20,000.

(h)   The foregoing representations, warranties and agreements, together with all other representations and warranties made or given by the undersigned 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 Person is signing this Subscription Agreement, each representation, warranty and undertaking herein shall be the joint and several representation, warranty and undertaking of each such Person.

9.   Representations and Warranties of the Company. The Company hereby acknowledges, represents and warrants to, and agrees with, the undersigned as follows:

(a)   Organization and Qualification . The Company 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. The Company is not in violation of any of the provisions of its certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company 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.

 

(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 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 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 do not and will not (i) conflict with or violate any provision of the Company’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 debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company 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 is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected.

(d)   Filings, Consents and Approvals . 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 (i) the filing with the Commission of one or more registration statements in accordance with the requirements of the Registration Rights Agreement, (ii) filings required by state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act and (iv) those that have been made or obtained prior to the date of this Subscription Agreement.

(e)   Issuance of the Units . The Units, and the Shares issuable under the Units and the Warrant Shares, 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 capital stock the shares of Common Stock issuable pursuant to this Subscription Agreement and the Warrants in order to issue the Shares and the Warrant Shares.

 

(f)   Material Misstatements . The Offering Memorandum, did not, as of the date thereof, and will not, as of the Closing, contain any untrue statement of a material fact or, together with the Company’s filings with the Commission, omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(g)   Authorized Capital . The Company’s authorized equity capitalization is as set forth in the Offering Memorandum; the Common Stock and the Warrants conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all of the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights to subscribe for or purchase securities. As of the date of the Offering Memorandum, there were 17,898,267 shares of Common Stock issued and outstanding and warrants to purchase 899,480 shares of Common Stock outstanding. The warrants are immediately exercisable, expire on the third anniversary of their issuance and entitle their holders to purchase up to 899,480 shares of Common Stock for $2.00 per share. The Company has reserved from its duly authorized capital stock the shares of Common Stock issuable pursuant to such outstanding warrants and may call such warrants at $4.00 per share at any time after: (i) a registration statement registering the common stock underlying the warrants becomes effective; (ii) the common stock is listed on a national securities exchange; and (iii) the closing price of the common stock equals or exceeds $4.00. The Company does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, convertible securities or obligations other than the outstanding warrants described above. All the outstanding shares of capital stock or other interests of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Offering Memorandum, all outstanding capital stock or other interests of the subsidiaries of the Company are owned by the Company free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. There are no contracts, agreements or understandings between the Company or any of its subsidiaries and any person granting such person the right to require the Company or any of its subsidiaries to register any securities with the Commission.

(h)   Investment Company Status . The Company is not and, after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Offering Memorandum, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.

(i)   Material Proceedings . No action, suit, proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or any of its or their properties is pending or, to the knowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect.

 

(j)   Compliance with Obligations . Neither the Company nor any of its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or other organizational documents, other than as listed on Schedule 9(j) attached hereto; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or pursuant to which its or their property is subject, in each case, in any material respect; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, in the case of this clause (iii), for violations or defaults that could not reasonably be expected to have a Material Adverse Effect.

(k)   Government Licenses . The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities required to conduct their respective businesses as described in the Offering Memorandum, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit.

(l)   Tax Matters . The Company has filed all foreign, federal, state and local tax returns that are required to be filed by it or has requested extensions thereof and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith.

(m)   Material Adverse Change . Except as otherwise disclosed in the Offering Memorandum since September 30, 2011: (i) there has been no material adverse change, or any event or development that could reasonably be expected to result in a material adverse change, in the condition (financial or otherwise), prospects, earnings, business, operations or properties of the Company or any of its subsidiaries, taken as a whole (any such change, a “ Material Adverse Change ”); (ii) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or obligation (including any off-balance sheet obligation), indirect, direct or contingent, nor entered into any material transaction or agreement; and (iii) there has been no (x) dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries, any of its subsidiaries on any class of capital stock or other interests or (y) repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock or other interests.

(n)   Financial Statements . The consolidated historical financial statements and schedules of the Company and its subsidiaries attached to the Offering Memorandum present fairly the financial condition of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The financial data set forth in the Offering Memorandum fairly presents the information set forth therein on a basis consistent with that of the audited financial statements that are attached to the Offering Memorandum.

 

(o)   Auditors . Marcum Bernstein and Pinchuk LLP, which has certified certain financial statements of the Company and its subsidiaries and delivered its report with respect to the audited financial statements and schedules attached to the Offering Memorandum, is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the Exchange Act, and the applicable rules and regulations thereof.

(p)   Registration . It is not necessary, in connection with the issuance and sale of the Units, in the manner contemplated by the Transaction Documents and the Offering Memorandum, to register the offer and sale of the Units under the Securities Act.

(q)   Accredited Investors . The Company will not offer or sell any of the Units to any person whom it reasonably believes is not an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act).

(r)   Solicitation . Neither the Company nor any of its affiliates has engaged directly or indirectly in any form of “general solicitation” or “general advertising” in connection with the offering of the Units as those terms are used in Regulation D under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; the Company has not entered, and will not enter, into any arrangement or agreement with respect to the distribution of the Units, except for this Subscription Agreement.

(s)   Property . The Company and each of its subsidiaries own all such properties as are necessary to the conduct of its operations as presently conducted. The Company and each of its subsidiaries has good and marketable title to all real property and all other property and assets owned by it, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it. The Company and each of its subsidiaries holds any leased property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by it.

(t)   Environmental Regulations . The Company and its subsidiaries (i) are and have been in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the environment, hazardous or toxic substances or wastes, pollutants or contaminants, or the protection of human health and safety (“ Environmental Laws ”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice and are not aware of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals or liability would not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business. Neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and neither the Company nor any of its subsidiaries is subject to any pending or threatened action by any governmental authority where the potential monetary sanctions against the Company or any of its subsidiaries could reasonably be expected to exceed $100,000.

 

(u)   Employee Retirement Income Security Act of 1974 . None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the ERISA, and the regulations and published interpretations thereunder with respect to a Plan (as herein defined), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries that could have a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that could have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related to their employment that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries may have any liability.

(v)   Labor . No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, that could reasonably be expected to have a Material Adverse Effect.

 

(w)   Intellectual Property . The Company or one of its subsidiaries has sole and exclusive ownership of all right, title and interest in and to, or has a valid and enforceable right to use pursuant to written licenses, all patents, patent applications, other patent rights, trademarks, service marks, trade names, trade dress, designs, logos, copyrights, software, inventions, trade secrets, technology, domain names, know-how, processes, databases and other intellectual property, whether registered or unregistered and in any jurisdiction (collectively, the “ Intellectual Property ”) necessary for the conduct of, or used in, the Company’s and its subsidiaries’ businesses as now conducted or as proposed in the Offering Memorandum to be conducted, free and clear of all liens and encumbrances, and (a) to the Company’s knowledge, there is no infringement or unauthorized use by third parties of any such Intellectual Property (with the definition of Intellectual Property in this clause (a) excluding commercially available “off-the shelf” software); (b) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by any third party (including any governmental authority) challenging the validity, scope or enforceability of, or the Company’s and its subsidiaries’ rights in and to, any such Intellectual Property (with the definition of Intellectual Property in this clause (b) excluding commercially available “off-the shelf” software), with the exception of proceedings by governmental authorities responsible for prosecuting pending patent and trademark applications, and, in each case, the Company is unaware of any facts which would form a reasonable basis for any such claim; (c) the Company’s and each of its subsidiaries’ businesses as now conducted and as proposed to be conducted does not and will not infringe, conflict with or otherwise violate any Intellectual Property rights of any third party under the laws of the United States of America or the People’s Republic of China and, to the Company’s knowledge, under the laws of any jurisdiction other than the United States of America and the People’s Republic of China, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by any third party (including any governmental authority) alleging that the Company’s or any of its subsidiaries’ businesses infringes, conflicts with or otherwise violates any Intellectual Property rights of any third party; (d) all licenses for Intellectual Property owned or used by the Company or any of its subsidiaries are valid, binding upon and enforceable by or against the parties thereto in accordance with their terms; (e) the Company and each of its subsidiaries has complied in all material respects with, and is not in breach of nor has received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other party to any Intellectual Property license; (f) the Company and each of its subsidiaries is diligently prosecuting all patent applications it has filed, except for those patent applications or claims in such patent applications that the Company or its subsidiary, as the case may be, has decided to abandon in its reasonable business judgment; (g) to the Company’s knowledge, there is no U.S. patent or published U.S. patent application which discloses or claims the same subject matter as any Intellectual Property described in the Offering Memorandum as being owned by the Company or any of its subsidiaries, or that would form the basis for provoking any interference proceeding at the U.S. Patent and Trademark Office with any issued or pending claims of any such Intellectual Property; (h) there is no prior art that has not been disclosed to the U.S. Patent and Trademark Office of which the Company is aware that may render any U.S. patent held or sought by the Company or any of its subsidiaries invalid or any U.S. patent application held or sought by the Company or any of its subsidiaries unpatentable; (i) the Company and each of its subsidiaries has employed and will continue to employ all efforts in its reasonable business judgment to protect, maintain and safeguard its Intellectual Property rights, including the execution of appropriate nondisclosure and confidentiality agreements and (j) all issue fees, maintenance fees, annuities and other governmental fees required to maintain the Intellectual Property have been paid to date.

(x)   Foreign Corrupt Practices Act.  None of the Company, any of its subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee, consultant or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by any such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), including without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries, and to the knowledge of the Company, its affiliates, have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

(y)   Currency and Foreign Transactions Reporting Act of 1970 . The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any 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 knowledge of the Company, threatened.

(z)   Office of Foreign Assets Control . None of the Company, any of its subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee, consultant or affiliate of the Company or any of its 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 Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities or any person currently subject to any U.S. sanctions administered by OFAC.

(aa)   Minutes of Meetings . The minute books of the Company and each of its subsidiaries have been made available to the undersigned and Placement Agents, and such books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee, if any) and shareholders of the Company and each of such subsidiaries since the time of its respective incorporation or organization through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions authorized in such minutes or written consents.

(bb)   Integration . The Company has not sold or issued any securities that would be integrated with this Offering pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.

(cc)   National Securities Exchange . The Company does not have any class of stock listed or quoted on a national securities exchange as defined under the Exchange Act.

(dd)   Legal Proceedings of Directors and Officers. To the Company’s knowledge, none of the current or former directors or officers of the Company or any of its subsidiaries is or has ever been subject to prior regulatory, criminal or bankruptcy proceedings in the United States or elsewhere.

 

10.   Notice to the Undersigned .

THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

  THE UNITS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. SUBSCRIBERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

  FOR CALIFORNIA RESIDENTS ONLY: THE SALE OF THE UNITS THAT ARE THE SUBJECT OF THIS OFFERING HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH UNITS OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH UNITS PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF THE UNITS IS EXEMPT FROM QUALIFICATION BY SECTION 25000, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.

  FOR FLORIDA RESIDENTS ONLY: THE UNITS REFERRED TO HEREIN WILL BE SOLD TO, AND ACQUIRED BY, THE HOLDER IN A TRANSACTION EXEMPT UNDER § 517.061 OF THE FLORIDA SECURITIES ACT. THE UNITS HAVE NOT BEEN REGISTERED UNDER SAID ACT IN THE STATE OF FLORIDA. IN ADDITION, ALL FLORIDA RESIDENTS SHALL HAVE THE PRIVILEGE OF VOIDING THE PURCHASE WITHIN THREE (3) DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE COMPANY, AN AGENT OF THE COMPANY, OR AN ESCROW AGENT OR WITHIN THREE (3) DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER.

  THE OFFERING OF THE UNITS IS FURTHER QUALIFIED BY, AND INCORPORATED HEREIN BY REFERENCE TO, ALL STATE LEGENDS SET FORTH IN THE OFFERING MEMORANDUM DELIVERED TO THE UNDERSIGNED IN CONNECTION WITH THIS OFFERING.

 

11.   Indemnification. The undersigned agrees to indemnify and hold harmless the Company and the officers and directors thereof and each other person, if any, who controls the Company, within the meaning of Section 15 of the Securities Act, against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representations or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to the Company in connection with this transaction.

12.   Additional Information. The undersigned hereby acknowledges and agrees that the Company may make or cause to be made such further inquiry and obtain such addi­tional information as it may deem appropriate with regard to the suitability of the undersigned as an investor in the Units.

13.   Binding Effect. The undersigned hereby acknowledges and agrees that, except as provided under applicable state securities laws and where a change in the financial condition or business of the Company prior to the Final Closing has a Material Adverse Effect on the Company, the Subscription hereunder is irrevocable, that the undersigned is not entitled to cancel, terminate or revoke this Subscription Agreement or any agreements of the undersigned hereunder and that this Subscription Agreement and such other agreements shall survive the death or disability of the undersigned and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligations of the undersigned hereunder shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his, her or its heirs, executors, admin­istrators, successors, legal representatives and assigns. This Subscription Agreement shall specifically inure to the benefit of each officer and director of the Company, irrespective of the fact that one or more of them are not parties to this Subscription Agreement.

14.   Modification. Neither this Subscription Agreement nor any provisions hereof shall be waived, modified, discharged or terminated except by an instrument in writing signed by the party against whom any such waiver, modification, discharge or termination is sought.

15.   Notices. Any notice, demand or other communication that any party hereto may be required, or may elect, to give to any other party hereunder shall be sufficiently given if (a) deposited, postage prepaid, in a United States mail box, stamped, registered or certified mail, return receipt requested, addressed to such address as may be listed on the books of the Company, or (b) delivered personally at such address.

16.   Counterparts. This Subscription Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. This Subscription Agreement may be executed and delivered via electronic facsimile transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.

 

17.   Entire Agreement. This Subscription Agreement contains the entire agreement of the parties with respect to the subject matter hereof and there are no representations, covenants or other agreements except as stated or referred to herein.

18.   Severability. Each provision of this Subscription Agreement is intended to be severable from every other provision, and the invalidity or illegality of any provision shall not affect the validity or legality of the remaining provisions.

19.   Assignability. This Subscription Agreement is not transferable or assignable by the undersigned.

20.   Applicable Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws.

21.   Choice of Jurisdiction. The undersigned agrees that any action or proceeding directly or indirectly relating to or arising out of this Subscription 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 Subscription 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. Each party hereto irrevocably waives the right to claim as a defense or otherwise that the foregoing jurisdictions are an inconvenient forum.

22.   Reimbursement. If any action or other proceeding is brought for the enforcement of this Subscription Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Subscription Agreement, the suc­cessful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in such action or proceeding in addition to any other relief to which they may be entitled.

23.   Further Assurances. Each of the parties shall execute said documents and other instruments and take such further actions as maybe reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby.

 

Schedule 9(j)

Company Compliance with Obligations

The Company and each of its subsidiaries, as of the date of the Offering Memorandum, are in compliance with its charter, bylaws and other organizational documents, except as follows:

On September 24, 2009, the shareholders of Nova Dongguan authorized an amendment to the Articles of Association of Nova Dongguan, effective as of September 24, 2009, to increase in the registered capital of Nova Dongguan from $8 million to $20 million, with such contribution to registered capital to be made within 24 months from receipt of PRC government approval for the increase in registered capital. On November 16, 2009, the Foreign Trade and Economic Cooperation Bureau of Dongguan in Dongguan, Guangdong Province, China, approved the increase in the registered capital of Nova Dongguan to $20 million, with the $12 million in additional contribution of capital to be paid within 24 months. As of September 30, 2011, Nova Dongguan has received additional capital contributions of $2.9 million from its shareholders and $0.99 million from its U.S. parent company. The remaining $8.11 million of additional contribution to capital became due on November 16, 2011. Nova Dongguan has applied for a six-month extension of the payment period, effective retroactively to November 2011 upon PRC government approval, as allowed by PRC regulations for foreign-invested enterprises, which Nova Dongguan expects to receive by January 2012. Nova Dongguan may also apply for a reduction of its registered capital requirement. If Nova Dongguan does not receive an extension or reduction of registered capital, and the Company is unable to make the required contribution to registered capital, Nova Dongguan may be required to pay a negotiated penalty, typically 3% to 5% of the unsatisfied contribution of registered capital remaining outstanding, or up to $405,000 based on the amount remaining outstanding as of November 16, 2011. After a six-month period following payment of any such penalty, Nova Dongguan may request a reduction of its registered capital to the amount already contributed with the outstanding balance waived without risk of business license revocation. Nova Dongguan will amend its Articles of Association to reflect any changes to the authorized amount of registered capital.

 

Units Purchased:
Purchase Price of Units: (Number of Units Purchased x $4.00 per Unit)

Name in which the Units are to be registered:

 

Address of Record:

 

IN WITNESS WHEREOF , the undersigned has caused this Subscription Agreement to be duly executed on the ____ day of                                , 201_.

                                                                             

Name of Entity

 

By:                                                                 

    Name:

    Title:

[ATTACH CHECK HERE]

 

Please reference the name of the Subscriber for whom payment should be credited on all wire instructions and checks.

 

 

 

Units Purchased:
Purchase Price of Units: (Number of Units Purchased x $4.00 per Unit)

Name(s) in which the Units are to be registered:

                                                                                                                                                                                                                          

 

Home Address:                                                                                                                                                                    

Mailing Address (if different):                                                                                                                                           

Form of joint ownership (if applicable). (If checked, subscriber and co-subscriber both must sign all documents.):

Please reference the name(s) of the Subscriber(s) for whom payment should be credited on all wire instructions and checks.

 

 

Exhibit 4.10

 

THESE SECURITIES AND THE COMMON STOCK THAT THE HOLDER SHALL RECEIVE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) IN ACCORDANCE WITH REGULATION S (RULES 901 THROUGH 905), (ii) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT THAT HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (iii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW. ANY HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.

 

 

 

 

WARRANT FOR THE PURCHASE OF

SHARES OF COMMON STOCK OF

NOVA LIFESTYLE, INC.

Expiring Three Years from the Date Hereof

FOR VALUE RECEIVED, Nova Lifestyle, Inc. (the “Company”) hereby certifies that the Warrant Holder specified above, or its, his or her registered assigns (“Registered Holder”), is entitled, subject to the terms set forth below, to purchase from the Company on or before the third anniversary of the date hereof, that number of shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) set forth above, at a purchase price equal to $4.50 per share of Common Stock (as may be adjusted as provided below) upon the terms and conditions set forth herein. The number of shares of Common Stock purchasable upon exercise of this Warrant, and the purchase price per share, each as adjusted from time to time pursuant to the provisions of this Warrant, are hereinafter referred to as the “Warrant Shares” and the “Exercise Price,” respectively.

 

 

1.   Registration of Transfers and Exchanges .

(i)   The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of Assignment attached hereto as Exhibit 2 duly completed and signed, to the principal office of the Company, or at such other office or agency as the Company may designate. Upon any such registration or transfer, a new warrant to purchase Common Stock, of the same tenor and date of this Warrant (any such new warrant, a “New Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Registered Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance of such transferee of all of the rights and obligations of a holder of a Warrant.

(ii)   This Warrant is exchangeable upon the surrender hereof by the Registered Holder to the principal office of the Company, or at such other office or agency as the Company may designate, for one or more New Warrants of like tenor and dated the date hereof and evidencing the right to purchase the same aggregate number of Warrant Shares that may be purchased hereunder.

2.   Exercise .

(i)   Procedure for Exercise . Subject to the conditions and terms set forth herein, this Warrant may be exercised by the Registered Holder (“Exercise Right”), in whole or in part, by the surrender of this Warrant (with the Notice of Exercise Form attached hereto as Exhibit 1 duly executed by such Registered Holder) to the principal office of the Company, or at such other office or agency as the Company may designate, accompanied by payment in full, in lawful money of the United States, of an amount equal to the then applicable Exercise Price multiplied by the number of Warrant Shares then being purchased upon such exercise.

(ii)   Exercise of Exercise Right . Subject to the terms and conditions set forth herein, the Exercise Right may be exercised by the Registered Holder on any business day by delivering to the Company this Warrant with a duly executed Notice of Exercise Form attached hereto as Exhibit 1 with the exercise section completed by specifying the total number of shares of Common Stock the Registered Holder will purchase pursuant to such exercise.

(iii)   Date of Exercise . Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant was surrendered to the Company. At such time, the person or persons in whose name or names any certificates for Warrant Shares shall be issuable upon such exercise shall be deemed to have become the holder or holders of record of the Warrant Shares represented by such certificates.

(iv)   Issuance of Certificate . As soon as practicable after the exercise of the purchase right represented by this Warrant, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or, subject to the terms and conditions hereof, to such other individual or entity as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:

(a)   a certificate or certificates for the number of full shares of Warrant Shares to which such Registered Holder shall be entitled upon such exercise plus, in lieu of any fractional share to which such Registered Holder would otherwise be entitled, cash in an amount determined pursuant to Section 4 hereof, and

(b)   in case such exercise is in part only, a new warrant or warrants of like tenor and dated the date hereof, stating on the face or faces thereof the number of shares currently stated on the face of this Warrant minus the number of such shares purchased by the Registered Holder upon such exercise as provided in subsection 2(i) above.

 

 

(v)   Exercise of Warrant . This Warrant may be exercised in whole or from time to time in part on or prior to the third anniversary of the date hereof, as first set forth above.

(vi)   Company Call Right . The Company shall have the option to “call” this Warrant (the “Warrant Call”), one or more times, in accordance with and governed by the following:

(a)   The Company shall exercise the Warrant Call by giving to the Registered Holder a written notice (the “Call Notice”) during the Call Period (as described below) setting forth the Common Stock to be called under this Warrant (or a percentage thereof) and the effective date of each Call Notice (the “Call Date”), which shall be no earlier than the date on which notice is deemed delivered under the notice provision of Section 16 of this Warrant. The exercise price for the Warrant Call shall be $5.00 per share.

(b)   The Company’s right to exercise the Warrant Call shall commence at any time after: (i) a registration statement registering the Common Stock issuable upon exercise of this Warrant has been declared effective by the Securities and Exchange Commission (the “SEC”); (ii) the Common Stock has been listed on the New York Stock Exchange, NYSE Amex, Nasdaq Stock Market or any other organization or association that is defined as a national securities exchange by the SEC (an “Exchange”); and (iii) the closing price of the Common Stock on the Exchange being $5.00 per share or more on such exchange at any time, as adjusted for any stock splits, dividends or other reorganizations that occur after the date hereof and shall terminate thirty (30) calendar days prior to the Expiration Date (the “Call Period”).

(c)   A Call Notice may be given by the Company only within the Call Period provided that the Company shall not have received a notice from the Exchange during the thirty (30) calendar days prior to the Call Date that the Company or the Common Stock does not meet the requirements for continued quotation, listing or trading on the Exchange, or that a stop order has been placed on an effective registration statement registering the Common Stock issuable upon exercise of this Warrant.

(d)   Unless otherwise agreed to by the Registered Holder of this Warrant, a Call Notice must be given to all Warrant Holders who receive the same class of warrants issued with this Warrant in proportion to the amounts of Common Stock that may be purchased by the respective Warrant Holders in accordance with the respective Warrants held by each.

 

 

(e)   The Warrant Holder shall exercise the Warrant and purchase the Common Stock set forth in the Call Notice and pay for same within fifteen (15) trading days after the Call Date. If the Warrant Holder fails to timely pay the amount required by the Warrant Call, the Warrants subject to the Warrant Call shall be canceled without any further action required by the Company and the Company is hereby irrevocably instructed to reflect such cancelation in its books and records.

(f)   The Company may not exercise the Warrant Call after the occurrence of a default by the Company of a material term of this Warrant or the Subscription Agreement executed by the Warrant Holder in connection with receipt of this Warrant unless such default has been cured.

3.   Adjustments .

(i)   Split, Subdivision or Combination of Shares . If, at any time while this Warrant remains outstanding and unexpired, the outstanding shares of the Company’s Common Stock shall be subdivided or split into a greater number of shares, or a dividend in Common Stock shall be paid in respect of Common Stock, the Exercise Price in effect immediately prior to such subdivision or at the record date of such dividend shall, simultaneously with the effectiveness of such subdivision or split or immediately after the record date of such dividend (as the case may be), be decreased proportionately. If the outstanding shares of Common Stock shall be combined or reverse-split into a smaller number of shares, the Exercise Price in effect immediately prior to such combination or reverse split shall, simultaneously with the effectiveness of such combination or reverse split, be increased proportionately. When any adjustment is required to be made in the Exercise Price, the number of shares of Warrant Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment, by (ii) the Exercise Price in effect immediately after such adjustment.

(ii)   Reclassification, Reorganization, Consolidation or Merger . In the case of any reclassification of the Common Stock (other than a change in par value or a subdivision or combination as provided for in subsection 3(i) above), or any reorganization, consolidation or merger of the Company with or into another corporation (other than a merger or reorganization with respect to which the Company is the continuing corporation and which does not result in any reclassification of the Common Stock), or a transfer of all or substantially all of the assets of the Company, or the payment of a liquidating distribution then, as part of any such reorganization, reclassification, consolidation, merger, sale or liquidating distribution, lawful provision shall be made so that this Warrant will be assumed by the parent or surviving entity and the Registered Holder of this Warrant shall have the right thereafter to receive upon the exercise hereof, the kind and amount of shares of stock or other securities or property, and in such proportion as adjusted, which such Registered Holder would have been entitled to receive if, immediately prior to any such reorganization, reclassification, consolidation, merger, sale or liquidating distribution, as the case may be, such Registered Holder had held the number of shares of Common Stock that were then purchasable upon the exercise of this Warrant. In any such case, appropriate adjustment (as reasonably determined by the Board of Directors of the Company) shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the Registered Holder of this Warrant such that the provisions set forth in this Section 3 (including provisions with respect to the Exercise Price) shall thereafter be applicable, as nearly as is reasonably practicable, in relation to any shares of stock or other securities or property thereafter deliverable upon the exercise of this Warrant.

 

 

(iii)   Price Adjustment . No adjustment in the per share Exercise Price shall be required unless such adjustment would require an increase or decrease in the Exercise Price of at least $0.01; provided, however, that any adjustments that by reason of this paragraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 3 shall be made to the nearest cent, with $0.005 being rounded down to the nearest cent, or to the nearest 1/100th of a share, as the case may be.

(iv)   No Impairment . The Company will not, by amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such actions as may be necessary or appropriate in order to protect against impairment of the rights of the Registered Holder of this Warrant to adjustments in the Exercise Price.

(v)   Notice of Adjustment . Upon any adjustment of the Exercise Price or extension of the Warrant exercise period, the Company shall forthwith give written notice thereto to the Registered Holder of this Warrant describing the event requiring the adjustment, stating the adjusted Exercise Price and the adjusted number of shares purchasable upon the exercise hereof resulting from such event, and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

4.   Fractional Shares . The Company shall not be required to issue fractions of shares of Common Stock upon exercise. If any fractions of a share would, but for this Section 4, be issuable upon any exercise, in lieu of such fractional share the Company shall round up or down to the nearest whole number.

5.   Limitation on Sales . Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares, as of the date of original issuance of this Warrant, have not been registered under the Securities Act of 1933, as amended (the “Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Act as to this Warrant or such Warrant Shares or (ii) an opinion of counsel, reasonably acceptable to the Company and its counsel, that such registration and qualification are not required. The Warrant Shares issued upon exercise thereof shall be imprinted with a legend in substantially the following form:

 

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) IN ACCORDANCE WITH REGULATION S (RULES 901 THROUGH 905, AND PRELIMINARY NOTES), (ii) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT THAT HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (iii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW. ANY HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”

6.   Notices of Record Date . In case: (i) the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time deliverable upon the exercise of this Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of any class or any other securities, or to receive any other right, or (ii) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company, or (iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other stock or securities at the time deliverable upon the exercise of this Warrant) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up. Such notice shall be mailed at least ten (10) days prior to the record date or effective date for the event specified in such notice, provided that the failure to mail such notice shall not affect the legality or validity of any such action.

7.   Reservation of Stock . The Company will at all times reserve and keep available, solely for issuance and delivery upon the exercise of this Warrant, such shares of Common Stock and other stock, securities and property, as from time to time shall be issuable upon the exercise of this Warrant. All shares of Common Stock issuable upon exercise of any Warrants shall be duly authorized and, when issued upon such exercise, shall be validly issued and, in the case of shares, fully paid and nonassessable. All Warrants surrendered upon the exercise of the rights thereby evidenced shall be canceled, and such canceled Warrants shall constitute sufficient evidence of the number of shares of Common Stock which have been issued upon the exercise of such Warrants. Subsequent to the Expiration Date, no shares of stock need to be reserved in respect of any unexercised Warrant.

 

 

8.   Replacement of Warrants . Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender and cancelation of this Warrant, the Company will issue, in lieu thereof, a New Warrant of like tenor and dated the date hereof.

9.   Transfers, etc .

(i)   Warrant Register . The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Any Registered Holder may change its, his or her address as shown on the warrant register by written notice to the Company requesting such change.

(ii)   Registered Holder . Until any transfer of this Warrant is made in the warrant register, the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if and when this Warrant is properly assigned in blank, the Company may (but shall not be obligated to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary.

10.   No Rights as Stockholder . Until the exercise of this Warrant, the Registered Holder of this Warrant shall not have or exercise any rights by virtue hereof as a stockholder of the Company.

11.   Successors . The rights and obligations of the parties to this Warrant will inure to the benefit of and be binding upon the Company and any transferees of the Registered Holder.

12.   Change or Waiver . Any term of this Warrant may be changed or waived only by an instrument in writing signed by the party against which enforcement of the change or waiver is sought.

13.   Headings . The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of this Warrant.

14.   Governing Law . This Warrant shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to principles of conflicts of laws.

 

 

15.   Jurisdiction and Venue . The Company (i) agrees that any legal suit, action or proceeding arising out of or relating to this Warrant shall be instituted exclusively in any state court located in New York, New York or in the United States District Court for the Southern District of New York, (ii) waives any objection to the venue of any such suit, action or proceeding and the right to assert that such forum is not a convenient forum for such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of any state court located in New York, New York and the United States District Court for the Southern District of New York in any such suit, action or proceeding, and the Company further agrees to accept and acknowledge service or any and all process which may be served in any such suit, action or proceeding in any state court located in New York, New York or in the United States District Court for the Southern District of New York and agrees that service of process upon it mailed by certified mail to its address shall be deemed in every respect effective service of process upon it in any suit, action or proceeding.

16.   Mailing of Notices, etc . All notices and other communications under this Warrant (except payment) shall be in writing and shall be sufficiently given if sent to the Registered Holder or the Company, as the case may be, by hand delivery, private overnight courier, with acknowledgment of receipt, or by registered or certified mail, return receipt requested postage prepaid, as follows:

To Registered Holder:

To Registered Holder’s address as provided on the Subscription Agreement or otherwise in the Company’s Records.

To the Company:

To the Company’s Principal Executive Offices

Attn: Chief Executive Officer

with a copy, which shall not constitute notice to:

Newman & Morrison LLP

44 Wall Street, 20th Floor

New York, NY 10005

Attn: Robert Newman, Esq.

or to such other address as any of them, by notice to the others may designate from time to time. The time of delivery of the notice shall occur, as the case may be, one (1) day after the date sent if delivered in person or by overnight courier or five (5) business days after the mailing date if by registered or certified mail.

[Signature Page Follows]

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized officer as of the date first written above.

NOVA LIFESTYLE, INC.

By:
Name:	Ya Ming Wong
Title:	Chief Executive Officer

 

 

 

 

 

 

 

EXHIBIT 1

NOTICE OF EXERCISE

 

Date:                                                       

TO:           Nova Lifestyle, Inc.

6541 E. Washington Blvd.

Commerce, CA 90040

Attn: Ya Ming Wong, Chief Executive Officer

1.   The undersigned hereby elects to purchase ____________ shares of the Common Stock of Nova Lifestyle, Inc. pursuant to terms of the attached Warrant, and tenders herewith payment of $____________ (at the rate of $_____ per share of Common Stock) in payment of the Exercise Price(s) pursuant thereto, together with all applicable transfer taxes, if any.

 

2.   Please issue a certificate or certificates representing said shares of the Common Stock in the name of the undersigned or in such other name as is specified below.

 

3.   The undersigned is not a U.S. person and the attached Warrant is not being exercised on behalf of a U.S. person.

 

4.   The undersigned agrees that the terms and conditions of the Subscription Agreement between the Company and the undersigned apply to the shares of Common Stock issuable upon the exercise of this Warrant.

 

 

                                                                                                 

Signature of Registered Holder

 

                                                                                                 

Print Name

 

Notice: The signature to this form must correspond with the name as written upon the face of the within Warrant in every particular without alteration or enlargement or any change whatsoever.

 

INSTRUCTIONS FOR REGISTRATION OF SECURITIES

 

Name: 

---

(Print Name for Registration in Block Letters)

 

Address:

                                                                                                                                         

 

EXHIBIT 2

[To be completed and signed only upon transfer of Warrant]

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto __________________________ the right represented by the within Warrant to purchase ____________ shares of Common Stock of Nova Lifestyle, Inc. to which the within Warrant relates and appoints _____________________________ attorney to transfer said right on the books of Nova Lifestyle, Inc. with full power of substitution in the premises.

Dated: ______________, ____

 

                                                                                               

(Signature must conform in all respects to name

of holder as specified on the face of the Warrant)

 

 

                                                                                               

 

                                                                                               

 

 

In the presence of:                                                                                                               

Exhibit 4.11

 

 

 

WARRANT FOR THE PURCHASE OF

SHARES OF COMMON STOCK OF

NOVA LIFESTYLE, INC.

Expiring Three Years from the Date Hereof

FOR VALUE RECEIVED, Nova Lifestyle, Inc. (the “Company”) hereby certifies that the Warrant Holder specified above, or its, his or her registered assigns (“Registered Holder”), is entitled, subject to the terms set forth below, to purchase from the Company on or before the third anniversary of the date hereof, that number of shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) set forth above, at a purchase price equal to $4.50 per share of Common Stock (as may be adjusted as provided below) upon the terms and conditions set forth herein. The number of shares of Common Stock purchasable upon exercise of this Warrant, and the purchase price per share, each as adjusted from time to time pursuant to the provisions of this Warrant, are hereinafter referred to as the “Warrant Shares” and the “Exercise Price,” respectively.

1.   Registration of Transfers and Exchanges .

(i)   The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of Assignment attached hereto as Exhibit 2 duly completed and signed, to the principal office of the Company, or at such other office or agency as the Company may designate. Upon any such registration or transfer, a new warrant to purchase Common Stock, of the same tenor and date of this Warrant (any such new warrant, a “New Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Registered Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance of such transferee of all of the rights and obligations of a holder of a Warrant.

 

 

(ii)   This Warrant is exchangeable, upon the surrender hereof by the Registered Holder to the principal office of the Company, or at such other office or agency as the Company may designate, for one or more New Warrants of like tenor and dated the date hereof and evidencing the right to purchase the same aggregate number of Warrant Shares that may be purchased hereunder.

2.   Exercise .

(i)   Procedure for Exercise . Subject to the conditions and terms set forth herein, this Warrant may be exercised by the Registered Holder (“Exercise Right”), in whole or in part, by the surrender of this Warrant (with the Notice of Exercise Form attached hereto as Exhibit 1 duly executed by such Registered Holder) to the principal office of the Company, or at such other office or agency as the Company may designate, accompanied by payment in full, in lawful money of the United States, of an amount equal to the then applicable Exercise Price multiplied by the number of Warrant Shares then being purchased upon such exercise.

(ii)   Exercise of Exercise Right . Subject to the terms and conditions set forth herein, the Exercise Right may be exercised by the Registered Holder on any business day by delivering to the Company this Warrant with a duly executed Notice of Exercise Form attached hereto as Exhibit 1 with the exercise section completed by specifying the total number of shares of Common Stock the Registered Holder will purchase pursuant to such exercise.

(iii)   Date of Exercise . Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant was surrendered to the Company. At such time, the person or persons in whose name or names any certificates for Warrant Shares shall be issuable upon such exercise shall be deemed to have become the holder or holders of record of the Warrant Shares represented by such certificates.

(iv)   Issuance of Certificate . As soon as practicable after the exercise of the purchase right represented by this Warrant, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or, subject to the terms and conditions hereof, to such other individual or entity as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:

(a)   a certificate or certificates for the number of full shares of Warrant Shares to which such Registered Holder shall be entitled upon such exercise plus, in lieu of any fractional share to which such Registered Holder would otherwise be entitled, cash in an amount determined pursuant to Section 4 hereof, and

 

(b)   in case such exercise is in part only, a new warrant or warrants of like tenor and dated the date hereof, stating on the face or faces thereof the number of shares currently stated on the face of this Warrant minus the number of such shares purchased by the Registered Holder upon such exercise as provided in subsection 2(i) above.

(v)   Exercise of Warrant . This Warrant may be exercised in whole or from time to time in part on or prior to the third anniversary of the date hereof, as first set forth above.

(vi)   Company Call Right . The Company shall have the option to “call” this Warrant (the “Warrant Call”), one or more times, in accordance with and governed by the following:

(a)   The Company shall exercise the Warrant Call by giving to the Registered Holder a written notice (the “Call Notice”) during the Call Period (as described below) setting forth the Common Stock to be called under this Warrant (or a percentage thereof) and the effective date of each Call Notice (the “Call Date”), which shall be no earlier than the date on which notice is deemed delivered under the notice provision of Section 16 of this Warrant. The exercise price for the Warrant Call shall be $5.00 per share.

(b)   The Company’s right to exercise the Warrant Call shall commence at any time after: (i) a registration statement registering the Common Stock issuable upon exercise of this Warrant has been declared effective by the Securities and Exchange Commission (the “SEC”); (ii) the Common Stock has been listed on the New York Stock Exchange, NYSE Amex, Nasdaq Stock Market or any other organization or association that is defined as a national securities exchange by the SEC (an “Exchange”); and (iii) the closing price of the Common Stock on the Exchange being $5.00 per share or more on such exchange at any time, as adjusted for any stock splits, dividends or other reorganizations that occur after the date hereof and shall terminate thirty (30) calendar days prior to the Expiration Date (the “Call Period”).

(c)   A Call Notice may be given by the Company only within the Call Period provided that the Company shall not have received a notice from the Exchange during the thirty (30) calendar days prior to the Call Date that the Company or the Common Stock does not meet the requirements for continued quotation, listing or trading on the Exchange, or that a stop order has been placed on an effective registration statement registering the Common Stock issuable upon exercise of this Warrant.

(d)   Unless otherwise agreed to by the Registered Holder of this Warrant, a Call Notice must be given to all Warrant Holders who receive the same class of warrants issued with this Warrant in proportion to the amounts of Common Stock that may be purchased by the respective Warrant Holders in accordance with the respective Warrants held by each.

(e)   The Warrant Holder shall exercise the Warrant and purchase the Common Stock set forth in the Call Notice and pay for same within fifteen (15) trading days after the Call Date. If the Warrant Holder fails to timely pay the amount required by the Warrant Call, the Warrants subject to the Warrant Call shall be canceled without any further action required by the Company and the Company is hereby irrevocably instructed to reflect such cancelation in its books and records.

 

(f)   The Company may not exercise the Warrant Call after the occurrence of a default by the Company of a material term of this Warrant or the Subscription Agreement executed by the Warrant Holder in connection with receipt of this Warrant unless such default has been cured.

3.   Adjustments .

(i)   Split, Subdivision or Combination of Shares . If, at any time while this Warrant remains outstanding and unexpired, the outstanding shares of the Company’s Common Stock shall be subdivided or split into a greater number of shares, or a dividend in Common Stock shall be paid in respect of Common Stock, the Exercise Price in effect immediately prior to such subdivision or at the record date of such dividend shall, simultaneously with the effectiveness of such subdivision or split or immediately after the record date of such dividend (as the case may be), be decreased proportionately. If the outstanding shares of Common Stock shall be combined or reverse-split into a smaller number of shares, the Exercise Price in effect immediately prior to such combination or reverse split shall, simultaneously with the effectiveness of such combination or reverse split, be increased proportionately. When any adjustment is required to be made in the Exercise Price, the number of shares of Warrant Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment, by (ii) the Exercise Price in effect immediately after such adjustment.

(ii)   Reclassification, Reorganization, Consolidation or Merger . In the case of any reclassification of the Common Stock (other than a change in par value or a subdivision or combination as provided for in subsection 3(i) above), or any reorganization, consolidation or merger of the Company with or into another corporation (other than a merger or reorganization with respect to which the Company is the continuing corporation and which does not result in any reclassification of the Common Stock), or a transfer of all or substantially all of the assets of the Company, or the payment of a liquidating distribution then, as part of any such reorganization, reclassification, consolidation, merger, sale or liquidating distribution, lawful provision shall be made so that this Warrant will be assumed by the parent or surviving entity and the Registered Holder of this Warrant shall have the right thereafter to receive upon the exercise hereof, the kind and amount of shares of stock or other securities or property, and in such proportion as adjusted, which such Registered Holder would have been entitled to receive if, immediately prior to any such reorganization, reclassification, consolidation, merger, sale or liquidating distribution, as the case may be, such Registered Holder had held the number of shares of Common Stock that were then purchasable upon the exercise of this Warrant. In any such case, appropriate adjustment (as reasonably determined by the Board of Directors of the Company) shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the Registered Holder of this Warrant such that the provisions set forth in this Section 3 (including provisions with respect to the Exercise Price) shall thereafter be applicable, as nearly as is reasonably practicable, in relation to any shares of stock or other securities or property thereafter deliverable upon the exercise of this Warrant.

 

(iii)   Price Adjustment . No adjustment in the per share Exercise Price shall be required unless such adjustment would require an increase or decrease in the Exercise Price of at least $0.01; provided, however, that any adjustments that by reason of this paragraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 3 shall be made to the nearest cent, with $0.005 being rounded down to the nearest cent, or to the nearest 1/100th of a share, as the case may be.

(iv)   No Impairment . The Company will not, by amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such actions as may be necessary or appropriate in order to protect against impairment of the rights of the Registered Holder of this Warrant to adjustments in the Exercise Price.

(v)   Notice of Adjustment . Upon any adjustment of the Exercise Price or extension of the Warrant exercise period, the Company shall forthwith give written notice thereto to the Registered Holder of this Warrant describing the event requiring the adjustment, stating the adjusted Exercise Price and the adjusted number of shares purchasable upon the exercise hereof resulting from such event, and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.

4.   Fractional Shares . The Company shall not be required to issue fractions of shares of Common Stock upon exercise. If any fractions of a share would, but for this Section 4, be issuable upon any exercise, in lieu of such fractional share the Company shall round up or down to the nearest whole number.

5.   Limitation on Sales . Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares, as of the date of original issuance of this Warrant, have not been registered under the Securities Act of 1933, as amended (the “Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Act as to this Warrant or such Warrant Shares or (ii) an opinion of counsel, reasonably acceptable to the Company and its counsel, that such registration and qualification are not required. The Warrant Shares issued upon exercise thereof shall be imprinted with a legend in substantially the following form:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.”

 

6.   Notices of Record Date . In case: (i) the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time deliverable upon the exercise of this Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of any class or any other securities, or to receive any other right, or (ii) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company, or (iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other stock or securities at the time deliverable upon the exercise of this Warrant) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up. Such notice shall be mailed at least ten (10) days prior to the record date or effective date for the event specified in such notice, provided that the failure to mail such notice shall not affect the legality or validity of any such action.

7.   Reservation of Stock . The Company will at all times reserve and keep available, solely for issuance and delivery upon the exercise of this Warrant, such shares of Common Stock and other stock, securities and property, as from time to time shall be issuable upon the exercise of this Warrant. All shares of Common Stock issuable upon exercise of any Warrants shall be duly authorized and, when issued upon such exercise, shall be validly issued and, in the case of shares, fully paid and nonassessable. All Warrants surrendered upon the exercise of the rights thereby evidenced shall be canceled, and such canceled Warrants shall constitute sufficient evidence of the number of shares of Common Stock which have been issued upon the exercise of such Warrants. Subsequent to the Expiration Date, no shares of stock need to be reserved in respect of any unexercised Warrant.

 

8.   Replacement of Warrants . Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender and cancelation of this Warrant, the Company will issue, in lieu thereof, a New Warrant of like tenor and dated the date hereof.

9.   Transfers, etc .

(i)   Warrant Register . The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Any Registered Holder may change its, his or her address as shown on the warrant register by written notice to the Company requesting such change.

(ii)   Registered Holder . Until any transfer of this Warrant is made in the warrant register, the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if and when this Warrant is properly assigned in blank, the Company may (but shall not be obligated to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary.

10.   No Rights as Stockholder . Until the exercise of this Warrant, the Registered Holder of this Warrant shall not have or exercise any rights by virtue hereof as a stockholder of the Company.

11.   Successors . The rights and obligations of the parties to this Warrant will inure to the benefit of and be binding upon the Company and any transferees of the Registered Holder.

12.   Change or Waiver . Any term of this Warrant may be changed or waived only by an instrument in writing signed by the party against which enforcement of the change or waiver is sought.

13.   Headings . The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of this Warrant.

14.   Governing Law . This Warrant shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to principles of conflicts of laws.

 

15.   Jurisdiction and Venue . The Company (i) agrees that any legal suit, action or proceeding arising out of or relating to this Warrant shall be instituted exclusively in any state court located in New York, New York or in the United States District Court for the Southern District of New York, (ii) waives any objection to the venue of any such suit, action or proceeding and the right to assert that such forum is not a convenient forum for such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of any state court located in New York, New York and the United States District Court for the Southern District of New York in any such suit, action or proceeding, and the Company further agrees to accept and acknowledge service or any and all process which may be served in any such suit, action or proceeding in any state court located in New York, New York or in the United States District Court for the Southern District of New York and agrees that service of process upon it mailed by certified mail to its address shall be deemed in every respect effective service of process upon it in any suit, action or proceeding.

16.   Mailing of Notices, etc . All notices and other communications under this Warrant (except payment) shall be in writing and shall be sufficiently given if sent to the Registered Holder or the Company, as the case may be, by hand delivery, private overnight courier, with acknowledgment of receipt, or by registered or certified mail, return receipt requested postage prepaid, as follows:

To Registered Holder:

To Registered Holder’s address as provided on the Subscription Agreement or otherwise in the Company’s Records.

To the Company:

To the Company’s Principal Executive Offices

Attn: Chief Executive Officer

with a copy, which shall not constitute notice to:

Newman & Morrison LLP

44 Wall Street, 20th Floor

New York, NY 10005

Attn: Robert Newman, Esq.

or to such other address as any of them, by notice to the others may designate from time to time. The time of delivery of the notice shall occur, as the case may be, one (1) day after the date sent if delivered in person or by overnight courier or five (5) business days after the mailing date if by registered or certified mail.

[Signature Page Follows]

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized officer as of the date first written above.

NOVA LIFESTYLE, INC.

 

By:
Name:	Ya Ming Wong
Title:	Chief Executive Officer

 

 

 

 

 

EXHIBIT 1

NOTICE OF EXERCISE

 

Date:                                                       

TO:           Nova Lifestyle, Inc.

6541 E. Washington Blvd.

Commerce, CA 90040

Attn: Ya Ming Wong, Chief Executive Officer

1.   The undersigned hereby elects to purchase ____________ shares of the Common Stock of Nova Lifestyle, Inc. pursuant to terms of the attached Warrant, and tenders herewith payment of $____________ (at the rate of $_____ per share of Common Stock) in payment of the Exercise Price(s) pursuant thereto, together with all applicable transfer taxes, if any.

 

2.   Please issue a certificate or certificates representing said shares of the Common Stock in the name of the undersigned or in such other name as is specified below.

 

 

                                                                                                                                                                                                      

Signature of Registered Holder

 

                                                                                                                                                                                                      

Print Name

 

Notice: The signature to this form must correspond with the name as written upon the face of the within Warrant in every particular without alteration or enlargement or any change whatsoever.

 

INSTRUCTIONS FOR REGISTRATION OF SECURITIES

 

Name:   

(Print Name for Registration in Block Letters)

 

Address:  

                                                                                                                                   

 

EXHIBIT 2

[To be completed and signed only upon transfer of Warrant]

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto __________________________ the right represented by the within Warrant to purchase ____________ shares of Common Stock of Nova Lifestyle, Inc. to which the within Warrant relates and appoints _____________________________ attorney to transfer said right on the books of Nova Lifestyle, Inc. with full power of substitution in the premises.

Dated: ______________, ____

 

                                                                                                                                                                                                                                  

(Signature must conform in all respects to name

of holder as specified on the face of the Warrant)

 

                                                                                                                                                                                                    

Address of Transferee

 

                                                                                                                                                                                                        

 

                                                                                                                                                                                                    

 

In the presence of:

 

                                                                                                 

 

 

 

Exhibit 4.12

 

NOVA LIFESTYLE, INC.

 

REGULATION S REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of                              , 201_, is made by and between Nova Lifestyle, Inc., a Nevada corporation (the “Company”), and the undersigned investor (the “Investor”).

 

WHEREAS, in connection with that certain Subscription Agreement by and among the Company and the Investor (the “Subscription Agreement”), the Company desires to sell to the Investor and the Investor desires to purchase from the Company units (the “Units”) consisting of (a) shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), and (b) warrants to purchase additional shares of Common Stock (the “Warrants”) equal to 15% of the Common Stock initially purchased; and

 

WHEREAS, to induce the Investor to purchase the Common Stock and Warrants, the Company has agreed to register the shares of Common Stock purchased and the Common Stock underlying the Warrants pursuant to the terms of this Agreement.

 

NOW, THEREFORE, the Company and the Investor hereby covenant and agree as follows:

 

1.   Certain Definitions . As used in this Agreement, the following terms shall have the following respective meanings:

 

“Closing” shall mean the closing of the sale of the Units.

 

“Commission” shall mean the Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act.

 

“Effectiveness Date” shall mean that date which is one hundred eighty (180) days following the Final Closing Date.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Filing Date” shall mean that date which is sixty (60) days following the Final Closing Date.

 

“Final Closing Date” shall mean any date after the Company conducts a Closing for at least the Minimum Offering which occurs at the earlier of: (i) January 31, 2012, or up to 60 days thereafter if the Company extends the Offering, (ii) any date prior to January 31, 2012, as determined by the Company, or (iii) the date on which the Company conducts a Closing in which the aggregate funds received by Company equal the Maximum Offering.

 

“Offering” shall refer to the Company’s proposal to sell Units for $4.00 per Unit, with each Unit consisting of (i) one share of Common Stock and (ii) a three (3) year Warrant to purchase 15% of one share of Common Stock with an exercise price of $4.50 per share of Common Stock.

 

 

“Maximum Offering” shall mean 2,500,000 Units for a total maximum purchase price of USD $10,000,000.

 

“Minimum Offering” shall mean 500,000 Units for a total purchase price of USD $2,000,000.

 

“Register,” “registered” and “registration” each shall refer to a registration of the Registrable Securities effected by preparing and filing a registration statement or statements or similar documents in compliance with the Securities Act and the declaration or ordering of effectiveness of such registration statement or document by the Commission.

 

“Registrable Securities” shall mean the shares of Common Stock issued pursuant to the Subscription Agreement or issued or issuable upon the exercise of the Warrants delivered as part of the Offering; provided, however, that shares of Common Stock that are Registrable Securities shall cease to be Registrable Securities (i) upon any sale pursuant to a Registration Statement or Regulation S under the Securities Act or (ii) at such time as they become eligible for sale pursuant to Rule 144 under the Securities Act or another similar exemption under the Securities Act; provided, further, that the maximum amount of Registrable Securities at any one time shall be limited by Rule 415.

 

“Regulation S” shall mean Rules 901-905, including the Preliminary Notes, of Regulation S promulgated under the Securities Act.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

Capitalized terms used but not defined herein shall have the meanings set forth in the Subscription Agreement or the Warrants.

 

2.   Automatic Registration .

 

(a)   On or prior to the Filing Date, the Company shall prepare and file with the Commission a registration statement (the “Registration Statement”) covering the resale of all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-1 or Form S-3, as applicable. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold pursuant to Rule 144 under the Securities Act as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Investor (the “Effectiveness Period”). The maximum amount of Registrable Securities that may be included in a Registration Statement at any one time shall be limited by Rule 415 as required by the Commission. In the event that there is a limitation by the Commission on the number of Registrable Securities that may be included for registration at one time, the Company shall use its reasonable best efforts to file an additional Registration Statement covering such ineligible Registrable Securities within 30 days of the date such securities become eligible and to make such Registration Statement be declared effective by the Commission as soon as practicably possible.

 

 

(b)   If: (i) a Registration Statement is not filed on or prior to the Filing Date; (ii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within 5 trading days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or is not subject to further review; (iii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effectiveness Date as a result of the failure of the Company to meet its obligations with respect to such filing as provided for herein; or (iv) after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as to the Registrable Securities held by the Investor, or the Investor is not permitted to utilize the prospectus therein to resell such Registrable Securities, for in any such case 30 consecutive days but no more than an aggregate of 60 days (which need not be consecutive days) during any 12-month period during which the Investor is not permitted to sell such Registrable Securities under Regulation S (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date on which such 5 trading day period is exceeded, or for purposes of clause (iv) the date on which such 30-day or 60-day period, as applicable, is exceeded being referred to as “Event Date”), then: (A) on the first Event Date to occur the Company shall pay to such Investor an amount, at the election of the Company, in cash or in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Investor pursuant to the Subscription Agreement for any Registrable Securities then held by such Investor for which such Investor has not received liquidated damages pursuant to Section 2(c) below ; and (B) on each anniversary of such Event Date (if the applicable Event, or any subsequent Event, shall not have been cured by such date) until all Event(s) are cured, the Company shall pay to such Investor an amount, as determined by the Company, in cash or in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Investor pursuant to the Subscription Agreement for any Registrable Securities then held by such Investor for which such Investor has not received liquidated damages pursuant to Section 2(c) below . In determining the number of shares of Common Stock payable to the Investor, the 20-day average closing price of the Common Stock ending on the Event Date shall be used. If the Company fails to pay any liquidated damages pursuant to this Section in full within 7 days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a year prior to the cure of an Event.

 

 

(c)   Notwithstanding any other provision of this Section 2, if the Commission determines that the number of securities that the Company may register on the Registration Statement pursuant to Rule 415 is limited such that the shares so registered thereunder shall exclude any Registrable Securities held by the Investor, then the Company shall promptly so advise the Investor and the Company shall use commercially reasonable efforts to effect the registration of any Registrable Securities not so included on the Registration Statement, on a pro-rata basis, as a result thereof as soon as is legally possible to do so. In such event, the Company shall pay to such Investor liquidated damages as set forth in Section 2(b) hereof with respect to any Registrable Securities then held by the Investor that were not registered by the Effectiveness Date.

 

(d)   The parties acknowledge and agree that (i) the maximum amount of damages that the Company shall be obligated to pay the Investor for any and all breaches of this Section 2 is the amount of liquidated damages set forth in Section 2(b) or 2(c), and (ii) such liquidated damages shall be the sole remedy available to Investor for any breach of this Agreement, provided that nothing in this Section 2(d) shall preclude Investor from seeking injunctive relief, including specific performance of its rights under this Section 2.

 

(e)   At any time after a Registration Statement has become effective, the Company may, upon giving prompt written notice of such action to the Investor, suspend the use of any such Registration Statement if, in the good faith judgment of the Company, the use of a Registration Statement covering the Registrable Securities would be detrimental to the Company or its stockholders at such time and the Company concludes, as a result, that it is in the best interests of the Company or its stockholders to suspend the use of such Registration Statement at such time. The Company shall have the right to suspend such Registration Statement for a period of not more than thirty (30) consecutive days from the date the Company notifies the Investor of such suspension, with such suspension not exceed an aggregate of sixty (60) days (whether or not consecutive) during any 12-month period. In the case of the suspension of any effective Registration Statement, the Investor, immediately upon receipt of notice thereof from the Company, will discontinue any sales of Registrable Securities pursuant to such Registration Statement until advised in writing by the Company that the use of such Registration Statement may be resumed.

 

3.   Registration Procedures . If and whenever the Company is required by the provisions of Section 2 hereof to use its commercially reasonable efforts to affect the registration of any Registrable Securities under the Securities Act, the Company will, as expeditiously as possible:

 

(a)   prepare and file with the Commission the Registration Statement with respect to such securities and use its reasonable best efforts to cause such Registration Statement to become effective in an expeditious manner;

 

(b)   prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective during the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement in accordance with the intended method of disposition set forth in such Registration Statement for such period;

 

 

(c)   furnish to each seller of Registrable Securities and to each underwriter such number of copies of the Registration Statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement;

 

(d)   use its commercially reasonable efforts (i) to register or qualify the Registrable Securities covered by such Registration Statement under the state securities or “blue sky” laws of such jurisdictions as the sellers of Registrable Securities or, in the case of an underwritten public offering, the managing underwriter, reasonably shall request, (ii) to prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements, and take such other actions, as may be necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable the disposition of the Registrable Securities in such jurisdictions, provided, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;

 

(e)   use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is then listed;

 

(f)   immediately notify each seller of Registrable Securities and each underwriter under such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus contained in such Registration Statement, as then in effect, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing and promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;

 

(g)   promptly notify each seller of Registrable Securities of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time;

 

(h)   if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;

 

 

(i)   if the offering is an underwritten offering, at the request of any seller of Registrable Securities, use its commercially reasonable efforts to furnish to such seller on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent registered public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters reasonably may request;

 

(j)   take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing the Registrable Securities to be sold pursuant to the Registration Statement and to enable such certificates to be in such denominations and registered in such names as the Investor or any underwriters may reasonably request; and

 

(k)   take all other reasonable actions necessary to expedite and facilitate the registration of the Registrable Securities pursuant to the Registration Statement.

 

4.   Obligations of Investor . The Investor shall furnish to the Company such information regarding such Investor, the number of Registrable Securities owned and proposed to be sold by it, the intended method of disposition of such securities and any other information as shall be required to effect the registration of the Registrable Securities, and cooperate with the Company in preparing the Registration Statement and in complying with the requirements of the Securities Act.

 

5.   Expenses .

 

(a)   All expenses incurred by the Company in complying with Sections 2 and 3 including, without limitation, all registration and filing fees (including the fees of the Commission and any other regulatory body with which the Company is required to file), printing expenses, fees and disbursements of counsel and independent public accountants for the Company, fees and expenses (including counsel fees) incurred in connection with complying with state securities or “blue sky” laws, and fees of transfer agents and registrars are called “Registration Expenses.” All underwriting discounts and selling commissions applicable to the sale of Registrable Securities are called “Selling Expenses.”

 

 

(b)   The Company will pay all Registration Expenses in connection with any Registration Statement filed hereunder, and the Selling Expenses in connection with each such Registration Statement shall be borne by the participating sellers in proportion to the number of Registrable Securities sold by each or as they may otherwise agree.

 

6.   Indemnification and Contribution .

 

(a)   In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to the terms of this Agreement, the Company will indemnify and hold harmless and pay and reimburse, each seller of such Registrable Securities thereunder, each underwriter of such Registrable Securities thereunder and each other person, if any, who controls such seller or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act pursuant hereto or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation or alleged violation of the Securities Act or any state securities or “blue sky” laws and will reimburse each such seller, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon the Company’s reliance on an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such seller, any such underwriter or any such controlling person in writing specifically for use in such Registration Statement or prospectus.

 

 

(b)   In the event of a registration of any of the Registrable Securities under the Securities Act pursuant hereto, each seller of such Registrable Securities thereunder, severally and not jointly, will indemnify and hold harmless the Company, each person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the Registration Statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon reliance on any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement under which such Registrable Securities were registered under the Securities Act pursuant hereto or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter   and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided that such seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to such seller, as such, furnished in writing to the Company by such seller specifically for use in such Registration Statement or prospectus; and provided, further, that the liability of each seller hereunder shall be limited to the proceeds received by such seller from the sale of Registrable Securities covered by such Registration Statement. Notwithstanding the foregoing, the indemnity provided in this Section 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of such indemnified party and provided further, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in such Registration Statement, which untrue statement or alleged untrue statement or omission or alleged omission is completely corrected in an amendment or supplement to the Registration Statement and the undersigned indemnitees thereafter fail to deliver or cause to be delivered such Registration Statement as so amended or supplemented prior to or concurrently with the sale of the Registrable Securities to the person asserting such loss, claim, damage or liability (or actions in respect thereof) or expense after the Company has furnished the undersigned with the same.

 

(c)   Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 6 and shall only relieve it from any liability which it may have to such indemnified party under this Section 6 if and to the extent the indemnifying party is materially prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 6 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded based upon written advice of its counsel that there may be reasonable defenses available to it that are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred.

 

 

(d)   In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Registrable Securities exercising rights under this Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant to this Section 6 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 6 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling holder or any such controlling person in circumstances for which indemnification is provided under this Section 6; then, and in each such case, the Company and such holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that such holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by the Registration Statement bears to the public offering price of all securities offered by such Registration Statement, and the Company is responsible for the remaining portion; provided, that, in any such case, (A) no such holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered by it pursuant to such Registration Statement and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 12(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.

 

7.   Changes in Capital Stock . If, and as often as, there is any change in the capital stock of the Company by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue as so changed.

 

8.   Representations and Warranties of the Company . The Company represents and warrants to the Investor as follows:

 

(a)   The execution, delivery and performance of this Agreement by the Company have been duly authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the Articles of Incorporation or Bylaws of the Company or any provision of any indenture, agreement or other instrument to which it or any or its properties or assets is bound, conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company or its subsidiaries.

 

(b)   This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to any applicable bankruptcy, insolvency or other laws affecting the rights of creditors generally and to general equitable principles and the availability of specific performance.

 

 

9.   Rule 144 Requirements . The Company agrees to:

 

(a)   make and keep current public information about the Company available, as those terms are understood and defined in Rule 144 under the Securities Act;

 

(b)   use its commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); and

 

(c)   furnish to any holder of Registrable Securities upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents of the Company as such holder may reasonably request to avail itself of any similar rule or regulation of the Commission allowing it to sell any such securities without registration.

 

10.   Termination . All of the Company’s obligations to register Registrable Shares under Sections 2 and 3 hereto shall terminate upon the date on which the Investor holds no Registrable Securities or all of the Registrable Securities are eligible for resale in reliance on Rule 144 under the Securities Act.

 

11.   Miscellaneous .

 

(a)   All covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto (including without limitation transferees of any Registrable Securities), whether so expressed or not.

 

(b)   All notices, requests, consents and other communications hereunder shall be in writing and shall be delivered in person, mailed by certified or registered mail, return receipt requested postage prepaid, addressed: (i) if to the Company, at Nova Lifestyle, Inc., c/o Newman & Morrison LLP, 44 Wall Street, 20 th Floor, New York, New York 10005 USA, Attn: Robert Newman, Esquire; telephone (212) 248-1001; and (ii) if to any holder of Registrable Securities, to such holder at such address as may have been furnished to the Company or its counsel in writing by such holder; or, in any case, at such other address or addresses as shall have been furnished, in writing to the Company or its counsel (in the case of a holder of Registrable Securities) or to the holders of Registrable Securities (in the case of the Company) in accordance with the provisions of this paragraph.

 

 

(c)   This Agreement shall be governed by and construed under the laws of the State of New York, without giving effect to principles of conflicts of laws. The Company and Investor (i) agree that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in any state court located in New York, New York or in the United States District Court for the Southern District of New York, (ii) waive any objection which the Company or Investor may have now or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consent to the jurisdiction of any state court located in New York, New York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding. The Company and Investor further agree to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in any state court located in New York, New York, or in the United States District Court for the Southern District of New York and agree that service of process upon the Company or Investor mailed by certified mail, return receipt requested, postage prepaid, to, in the case of the Company, the Company’s address, and in the case of the Investor, to the Investor’s address as set forth on the Company’s books and records, shall be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.

 

(d)   In the event of a breach by the Company or by the Investor, of any of their obligations under this Agreement, the Investor or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Investor agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.

 

(e)   This Agreement may not be amended or modified without the written consent of the Company and the Investor.

 

(f)   Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. No waiver shall be effective unless and until it is in writing and signed by the party granting the waiver.

 

(g)   This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.

 

(h)   If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein.

 

 

(i)   This Agreement constitutes the entire contract among the Company and the Investor relative to the subject matter hereof and supersedes in its entirety any and all prior agreements, understandings and discussions with respect thereto.

 

(j)   The headings of the sections of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement.

 

[Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to the Registration Rights Agreement]

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

COMPANY

 

NOVA LIFESTYLE, INC.

 

By:                                                                                        

Name: Ya Ming Wong

Title:   Chief Executive Officer

 

INVESTOR

 

COMPANY, PARTNERSHIP, OR TRUST

                                                                                                                                                                                                      

Company Name:

By:                                                                                        

Name:

Title:

INDIVIDUAL(S)

                                                                                                                                                                                                          

Name:

                                                                                                                                                                                                              

Name:

 

Exhibit 4.13

 

NOVA LIFESTYLE, INC.

 

REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of                              , 201_, is made by and between Nova Lifestyle, Inc., a Nevada corporation (the “Company”), and the undersigned investor (the “Investor”).

 

WHEREAS, in connection with that certain Subscription Agreement by and among the Company and the Investor (the “Subscription Agreement”), the Company desires to sell to the Investor and the Investor desires to purchase from the Company units (the “Units”) consisting of (a) shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), and (b) warrants to purchase additional shares of Common Stock (the “Warrants”) equal to 15% of the Common Stock initially purchased; and

 

WHEREAS, to induce the Investor to purchase the Common Stock and Warrants, the Company has agreed to register the shares of Common Stock purchased and the Common Stock underlying the Warrants pursuant to the terms of this Agreement.

 

NOW, THEREFORE, the Company and the Investor hereby covenant and agree as follows:

 

1.   Certain Definitions . As used in this Agreement, the following terms shall have the following respective meanings:

 

“Closing” shall mean the closing of the sale of the Units.

 

“Commission” shall mean the Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act.

 

“Effectiveness Date” shall mean that date which is one hundred eighty (180) days following the Final Closing Date.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Filing Date” shall mean that date which is sixty (60) days following the Final Closing Date.

 

“Final Closing Date” shall mean any date after the Company conducts a Closing for at least the Minimum Offering which occurs at the earlier of: (i) January 31, 2012, or up to 60 days thereafter if the Company extends the Offering, (ii) any date prior to January 31, 2012, as determined by the Company, or (iii) the date on which the Company conducts a Closing in which the aggregate funds received by Company equal the Maximum Offering.

 

“Offering” shall refer to the Company’s proposal to sell Units for $4.00 per Unit, with each Unit consisting of (i) one share of Common Stock and (ii) a three (3) year Warrant to purchase 15% of one share of Common Stock with an exercise price of $4.50 per share of Common Stock.

 

 

“Maximum Offering” shall mean 2,500,000 Units for a total maximum purchase price of USD $10,000,000.

 

“Minimum Offering” shall mean 500,000 Units for a total purchase price of USD $2,000,000.

 

“Register,” “registered” and “registration” each shall refer to a registration of the Registrable Securities effected by preparing and filing a registration statement or statements or similar documents in compliance with the Securities Act and the declaration or ordering of effectiveness of such registration statement or document by the Commission.

 

“Registrable Securities” shall mean the shares of Common Stock issued pursuant to the Subscription Agreement or issued or issuable upon the exercise of the Warrants delivered as part of the Offering; provided, however, that shares of Common Stock that are Registrable Securities shall cease to be Registrable Securities (i) upon any sale pursuant to a Registration Statement or Rule 144 under the Securities Act or (ii) at such time as they become eligible for sale pursuant to Rule 144 under the Securities Act or another similar exemption under the Securities Act; provided, further, that the maximum amount of Registrable Securities at any one time shall be limited by Rule 415.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

Capitalized terms used but not defined herein shall have the meanings set forth in the Subscription Agreement or the Warrants.

 

2.   Automatic Registration .

 

(a)   On or prior to the Filing Date, the Company shall prepare and file with the Commission a registration statement (the “Registration Statement”) covering the resale of all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-1 or Form S-3, as applicable. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold pursuant to Rule 144 under the Securities Act as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Investor (the “Effectiveness Period”). The maximum amount of Registrable Securities that may be included in a Registration Statement at any one time shall be limited by Rule 415 as required by the Commission. In the event that there is a limitation by the Commission on the number of Registrable Securities that may be included for registration at one time, the Company shall use its reasonable best efforts to file an additional Registration Statement covering such ineligible Registrable Securities within 30 days of the date such securities become eligible and to make such Registration Statement be declared effective by the Commission as soon as practicably possible.

 

 

(b)   If: (i) a Registration Statement is not filed on or prior to the Filing Date;  (ii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within 5 trading days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or is not subject to further review; (iii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effectiveness Date as a result of the failure of the Company to meet its obligations with respect to such filing as provided for herein; or (iv) after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as to the Registrable Securities held by the Investor, or the Investor is not permitted to utilize the prospectus therein to resell such Registrable Securities, for in any such case 30 consecutive days but no more than an aggregate of 60 days (which need not be consecutive days) during any 12-month period, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date on which such 5 trading day period is exceeded, or for purposes of clause (iv) the date on which such 30-day or 60-day period, as applicable, is exceeded being referred to as “Event Date”), then: (A) on the first Event Date to occur the Company shall pay to such Investor an amount, at the election of the Company, in cash or in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Investor pursuant to the Subscription Agreement for any Registrable Securities then held by such Investor for which such Investor has not received liquidated damages pursuant to Section 2(c) below ; and (B) on each anniversary of such Event Date (if the applicable Event, or any subsequent Event, shall not have been cured by such date) until all Event(s) are cured, the Company shall pay to such Investor an amount, as determined by the Company, in cash or in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Investor pursuant to the Subscription Agreement for any Registrable Securities then held by such Investor for which such Investor has not received liquidated damages pursuant to Section 2(c) below . In determining the number of shares of Common Stock payable to the Investor, the 20-day average closing price of the Common Stock ending on the Event Date shall be used. If the Company fails to pay any liquidated damages pursuant to this Section in full within 7 days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a year prior to the cure of an Event.

 

(c)   Notwithstanding any other provision of this Section 2, if the Commission determines that the number of securities that the Company may register on the Registration Statement pursuant to Rule 415 is limited such that the shares so registered thereunder shall exclude any Registrable Securities held by the Investor, then the Company shall promptly so advise the Investor and the Company shall use commercially reasonable efforts to effect the registration of any Registrable Securities not so included on the Registration Statement, on a pro-rata basis, as a result thereof as soon as is legally possible to do so. In such event, the Company shall pay to such Investor liquidated damages as set forth in Section 2(b) hereof with respect to any Registrable Securities then held by the Investor that were not registered by the Effectiveness Date.

 

 

(d)   The parties acknowledge and agree that (i) the maximum amount of damages that the Company shall be obligated to pay the Investor for any and all breaches of this Section 2 is the amount of liquidated damages set forth in Section 2(b) or 2(c), and (ii) such liquidated damages shall be the sole remedy available to Investor for any breach of this Agreement, provided that nothing in this Section 2(d) shall preclude Investor from seeking injunctive relief, including specific performance of its rights under this Section 2.

 

(e)   At any time after a Registration Statement has become effective, the Company may, upon giving prompt written notice of such action to the Investor, suspend the use of any such Registration Statement if, in the good faith judgment of the Company, the use of a Registration Statement covering the Registrable Securities would be detrimental to the Company or its stockholders at such time and the Company concludes, as a result, that it is in the best interests of the Company or its stockholders to suspend the use of such Registration Statement at such time. The Company shall have the right to suspend such Registration Statement for a period of not more than thirty (30) consecutive days from the date the Company notifies the Investor of such suspension, with such suspension not exceed an aggregate of sixty (60) days (whether or not consecutive) during any 12-month period. In the case of the suspension of any effective Registration Statement, the Investor, immediately upon receipt of notice thereof from the Company, will discontinue any sales of Registrable Securities pursuant to such Registration Statement until advised in writing by the Company that the use of such Registration Statement may be resumed.

3.   Registration Procedures . If and whenever the Company is required by the provisions of Section 2 hereof to use its commercially reasonable efforts to affect the registration of any Registrable Securities under the Securities Act, the Company will, as expeditiously as possible:

(a)   prepare and file with the Commission the Registration Statement with respect to such securities and use its reasonable best efforts to cause such Registration Statement to become effective in an expeditious manner;

 

(b)   prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective during the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement in accordance with the intended method of disposition set forth in such Registration Statement for such period;

 

(c)   furnish to each seller of Registrable Securities and to each underwriter such number of copies of the Registration Statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement;

 

 

(d)   use its commercially reasonable efforts (i) to register or qualify the Registrable Securities covered by such Registration Statement under the state securities or “blue sky” laws of such jurisdictions as the sellers of Registrable Securities or, in the case of an underwritten public offering, the managing underwriter, reasonably shall request, (ii) to prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements, and take such other actions, as may be necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable the disposition of the Registrable Securities in such jurisdictions, provided, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;

 

(e)   use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is then listed;

 

(f)   immediately notify each seller of Registrable Securities and each underwriter under such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus contained in such Registration Statement, as then in effect, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing and promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;

 

(g)   promptly notify each seller of Registrable Securities of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time;

 

(h)   if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;

 

 

(i)   if the offering is an underwritten offering, at the request of any seller of Registrable Securities, use its commercially reasonable efforts to furnish to such seller on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent registered public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters reasonably may request;

 

(j)   take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing the Registrable Securities to be sold pursuant to the Registration Statement and to enable such certificates to be in such denominations and registered in such names as the Investor or any underwriters may reasonably request; and

 

(k)   take all other reasonable actions necessary to expedite and facilitate the registration of the Registrable Securities pursuant to the Registration Statement.

 

4.   Obligations of Investor . The Investor shall furnish to the Company such information regarding such Investor, the number of Registrable Securities owned and proposed to be sold by it, the intended method of disposition of such securities and any other information as shall be required to effect the registration of the Registrable Securities, and cooperate with the Company in preparing the Registration Statement and in complying with the requirements of the Securities Act.

 

5.   Expenses .

 

(a)   All expenses incurred by the Company in complying with Sections 2 and 3 including, without limitation, all registration and filing fees (including the fees of the Commission and any other regulatory body with which the Company is required to file), printing expenses, fees and disbursements of counsel and independent public accountants for the Company, fees and expenses (including counsel fees) incurred in connection with complying with state securities or “blue sky” laws, and fees of transfer agents and registrars are called “Registration Expenses.” All underwriting discounts and selling commissions applicable to the sale of Registrable Securities are called “Selling Expenses.”

 

(b)   The Company will pay all Registration Expenses in connection with any Registration Statement filed hereunder, and the Selling Expenses in connection with each such Registration Statement shall be borne by the participating sellers in proportion to the number of Registrable Securities sold by each or as they may otherwise agree.

 

 

6.   Indemnification and Contribution .

 

(a)   In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to the terms of this Agreement, the Company will indemnify and hold harmless and pay and reimburse, each seller of such Registrable Securities thereunder, each underwriter of such Registrable Securities thereunder and each other person, if any, who controls such seller or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act pursuant hereto or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation or alleged violation of the Securities Act or any state securities or “blue sky” laws and will reimburse each such seller, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon the Company’s reliance on an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such seller, any such underwriter or any such controlling person in writing specifically for use in such Registration Statement or prospectus.

 

(b)   In the event of a registration of any of the Registrable Securities under the Securities Act pursuant hereto, each seller of such Registrable Securities thereunder, severally and not jointly, will indemnify and hold harmless the Company, each person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the Registration Statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon reliance on any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement under which such Registrable Securities were registered under the Securities Act pursuant hereto or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided that such seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to such seller, as such, furnished in writing to the Company by such seller specifically for use in such Registration Statement or prospectus; and provided, further, that the liability of each seller hereunder shall be limited to the proceeds received by such seller from the sale of Registrable Securities covered by such Registration Statement. Notwithstanding the foregoing, the indemnity provided in this Section 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of such indemnified party and provided further, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in such Registration Statement, which untrue statement or alleged untrue statement or omission or alleged omission is completely corrected in an amendment or supplement to the Registration Statement and the undersigned indemnitees thereafter fail to deliver or cause to be delivered such Registration Statement as so amended or supplemented prior to or concurrently with the sale of the Registrable Securities to the person asserting such loss, claim, damage or liability (or actions in respect thereof) or expense after the Company has furnished the undersigned with the same.

 

 

(c)   Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 6 and shall only relieve it from any liability which it may have to such indemnified party under this Section 6 if and to the extent the indemnifying party is materially prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 6 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded based upon written advice of its counsel that there may be reasonable defenses available to it that are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred.

 

(d)   In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Registrable Securities exercising rights under this Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant to this Section 6 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 6 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling holder or any such controlling person in circumstances for which indemnification is provided under this Section 6; then, and in each such case, the Company and such holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that such holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by the Registration Statement bears to the public offering price of all securities offered by such Registration Statement, and the Company is responsible for the remaining portion; provided, that, in any such case, (A) no such holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered by it pursuant to such Registration Statement and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 12(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.

 

 

7.   Changes in Capital Stock . If, and as often as, there is any change in the capital stock of the Company by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue as so changed.

 

8.   Representations and Warranties of the Company . The Company represents and warrants to the Investor as follows:

 

(a)   The execution, delivery and performance of this Agreement by the Company have been duly authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the Articles of Incorporation or Bylaws of the Company or any provision of any indenture, agreement or other instrument to which it or any or its properties or assets is bound, conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company or its subsidiaries.

 

(b)   This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to any applicable bankruptcy, insolvency or other laws affecting the rights of creditors generally and to general equitable principles and the availability of specific performance.

 

9.   Rule 144 Requirements . The Company agrees to:

 

(a)   make and keep current public information about the Company available, as those terms are understood and defined in Rule 144 under the Securities Act;

 

(b)   use its commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); and

 

 

(c)   furnish to any holder of Registrable Securities upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents of the Company as such holder may reasonably request to avail itself of any similar rule or regulation of the Commission allowing it to sell any such securities without registration.

 

10.   Termination . All of the Company’s obligations to register Registrable Shares under Sections 2 and 3 hereto shall terminate upon the date on which the Investor holds no Registrable Securities or all of the Registrable Securities are eligible for resale in reliance on Rule 144 under the Securities Act.

 

11.   Miscellaneous .

 

(a)   All covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto (including without limitation transferees of any Registrable Securities), whether so expressed or not.

 

(b)   All notices, requests, consents and other communications hereunder shall be in writing and shall be delivered in person, mailed by certified or registered mail, return receipt requested postage prepaid, addressed: (i) if to the Company, at Nova Lifestyle, Inc., c/o Newman & Morrison LLP, 44 Wall Street, 20 th Floor, New York, New York 10005 USA, Attn: Robert Newman, Esquire; telephone (212) 248-1001; and (ii) if to any holder of Registrable Securities, to such holder at such address as may have been furnished to the Company or its counsel in writing by such holder; or, in any case, at such other address or addresses as shall have been furnished, in writing to the Company or its counsel (in the case of a holder of Registrable Securities) or to the holders of Registrable Securities (in the case of the Company) in accordance with the provisions of this paragraph.

 

(c)   This Agreement shall be governed by and construed under the laws of the State of New York, without giving effect to principles of conflicts of laws. The Company and Investor (i) agree that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in any state court located in New York, New York or in the United States District Court for the Southern District of New York, (ii) waive any objection which the Company or Investor may have now or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consent to the jurisdiction of any state court located in New York, New York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding. The Company and Investor further agree to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in any state court located in New York, New York, or in the United States District Court for the Southern District of New York and agree that service of process upon the Company or Investor mailed by certified mail, return receipt requested, postage prepaid, to, in the case of the Company, the Company’s address, and in the case of the Investor, to the Investor’s address as set forth on the Company’s books and records, shall be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.

 

 

(d)   In the event of a breach by the Company or by the Investor, of any of their obligations under this Agreement, the Investor or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Investor agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.

 

(e)   This Agreement may not be amended or modified without the written consent of the Company and the Investor.

 

(f)   Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. No waiver shall be effective unless and until it is in writing and signed by the party granting the waiver.

 

(g)   This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.

 

(h)   If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein.

 

(i)   This Agreement constitutes the entire contract among the Company and the Investor relative to the subject matter hereof and supersedes in its entirety any and all prior agreements, understandings and discussions with respect thereto.

 

(j)   The headings of the sections of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement.

 

[Signature Page Follows]

 

 

Signature Page to the Registration Rights Agreement

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

COMPANY

 

NOVA LIFESTYLE, INC.

 

 

By:                                                                                             

Name: Ya Ming Wong                      

Title:   Chief Executive Officer

 

INVESTOR

 

COMPANY, PARTNERSHIP, OR TRUST

                                                                                                                                                                                                           

Company Name:

By:                                                                                             

Name:

Title:

INDIVIDUAL(S)

                                                                                                                                                                                                           

Name:

                                                                                                                                                                                                           

Name: