REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement (this
“Agreement”) is made and entered into as of
_____________, 2007, by and among China Housing and Land
Development, Inc., a Delaware corporation (the
“Company”), and the purchaser signatory hereto (the
“Purchaser”).
This Agreement is made pursuant to the
Securities Purchase Agreement, dated as of the date hereof among
the Company and the Purchaser (the “Purchase
Agreement”).
The Company and the Purchaser hereby agree as
follows:
1. Definitions. Capitalized terms used and not
otherwise defined herein that are defined in the Purchase Agreement
will have the meanings given such terms in the Purchase Agreement.
As used in this Agreement, the following terms have the respective
meanings set forth in this Section 1:
“Advice” has the meaning set forth
in Section 6(d).
“Effective Date” means, as to a
Registration Statement, the date on which such Registration
Statement is first declared effective by the Commission.
“Effectiveness Date” means (a) with
respect to the Initial Registration Statement required to be filed
under Section 2(a), the earlier of: (i) the 180th day following the
Closing Date; provided, that, if the Commission reviews and has
written comments to the filed Registration Statement that would
require the filing of a pre-effective amendment thereto with the
Commission, then the Effectiveness Date under this clause (i) shall
be the 230th day following the Closing Date, and (ii) the tenth
Trading Day following the date on which the Company is notified by
the Commission that the initial Registration Statement will not be
reviewed or is no longer subject to further review and comments;
(b) with respect to any additional Registration Statements that may
be required pursuant to Section 2(b), the earlier of (i) the 270th
day following the Effectiveness Date of the initial Registration
Statement filed pursuant to Section 2(a) (x) if such Registration
Statement is required because the Commission shall have notified
the Company in writing that certain Registrable Securities were not
eligible for inclusion on a previously filed Registration
Statement, (y) for any amount of Registrable Securities not
registered in the Initial Registration Statement, or (z) if such
Registration Statement is required for a reason other than as
described in (x) above, and (ii) the fifth Trading Day following
the date on which the Company is notified by the Commission that
such additional Registration Statement will not be reviewed or is
no longer subject to further review and comments; and (c) with
respect to a Registration Statement required to be filed under
Section 2(c), the earlier of: (c)(i) the 90th day following the
date on which the Company becomes eligible to utilize Form S-3 to
register the resale of Common Stock; provided, that, if the
Commission reviews and has written comments to such filed
Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the
Effectiveness Date under this clause (c)(i) shall be the 105th day
following the date on which the Company becomes eligible to utilize
Form S-3 to register the resale of Common Stock, and (ii) the fifth
Trading Day following the date on which the Company is notified by
the Commission that the initial Registration Statement will not be
reviewed or is no longer subject to further review and
comments.
“Effectiveness Period” has the
meaning set forth in Section 2(a).
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Filing Date” means (a) with respect
to the initial Registration Statement required to be filed under
Section 2(a), the 45th day following the date of the first Closing;
(b) with respect to any additional Registration Statements required
pursuant to Section 2(b), no earlier than the 180 days following
the Effectiveness Date of the initial Registration Statement filed
pursuant to Section 2(a): (x) if such Registration Statement is
required because the Commission shall have notified the Company in
writing that certain Registrable Securities were not eligible for
inclusion on a previously filed Registration Statement, (y) for the
amount of securities registered in the Initial Registration
Statement is less than all of the Registrable Securities, or (z) if
such Registration Statement is required for any other reason; and
(c) with respect to a Registration Statement required to be filed
under Section 2(c), the 30th day following the date on which the
Company becomes eligible to utilize Form S-3 to register the resale
of Common Stock.
“Holder” or “Holders”
means the holder or holders, as the case may be, from time to time
of Registrable Securities.
“Indemnified Party” has the meaning
set forth in Section 5(c).
“Indemnifying Party” has the meaning
set forth in Section 5(c).
“Initial Registration Statement” has
the meaning set forth in Section 2(a).
“Losses” has the meaning set forth
in Section 5(a).
“New York Courts” means the state
and federal courts sitting in the City of New York, Borough of
Manhattan.
“Proceeding” means an action, claim,
suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus” means the prospectus
included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
“Public Float” means that the
aggregate outstanding number of shares held by investors not
affiliated with the Company. For purpose of this Agreement, an
affilate shall be deemed to be an officer or a stock holder of more
than 10% of the Company’s outstanding Common
Stock.
“Registrable Securities” means: (i)
the Shares, (ii) the Warrant Shares, and (iii) any securities
issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event, or any conversion
price adjustment with respect to any of the securities referenced
in (i) and (ii) above.
“Registration Statement” means the
initial registration statement required to be filed in accordance
with Section 2(a) and any additional registration statement(s)
required to be filed under Section 2(b) and 2(c), including (in
each case) the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference
therein.
“Rule 144” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 415” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 424” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Securities Act” means the
Securities Act of 1933, as amended.
“Shares” means the shares of Common
Stock of the Company, par value $0.001 issued to the Purchaser
pursuant to the Purchase Agreement.
“Warrants” means the Common Stock
purchase warrants issued or issuable to the Purchaser pursuant to
the Purchase Agreement.
“Warrant Shares” means the shares of
Common Stock issued or issuable upon exercise of the
Warrants.
(a) On or prior to each Filing Date, the Company
shall prepare and file with the Commission a Registration Statement
covering the resale of Registrable Securities not already covered
by an existing and effective Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415, on Form SB-2
(or on such other form appropriate for such purpose), provided that
the number of the Registrable Securities covered by the initial
Registration Statement shall not exceed 33% of the Public Float at
the time of the filing of the initial Registration Statement (the
“Intial Registration Statement”). In the event that the
aggregate number of the Registrable Securities is more than 33% of
the Public Float, the Registrable Securities shall be registered in
the following order and priority: (a) Shares and (b) Warrant
Shares. Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
“Plan of Distribution” attached hereto as Annex A. The
Company shall cause such Registration Statement to be declared
effective under the Securities Act as soon as possible but, in any
event, no later than its Effectiveness Date, and shall use its
reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act until the date
which is the earlier of (i) five years after its Effective Date,
(ii) such time as all of the Registrable Securities covered by such
Registration Statement have been publicly sold by the Holders, or
(iii) such time as all of the Registrable Securities covered by
such Registration Statement may be sold by the Holders pursuant to
Rule 144(k) as determined by the counsel to the Company pursuant to
a written opinion letter to such effect, addressed and acceptable
to the Company's transfer agent and the affected Holders (the
“Effectiveness Period”).
(b) If for any reason the Commission does not
permit all of the Registrable Securities to be included in the
Registration Statement filed pursuant to Section 2(a), or the
amount of securities registered in the Initial Registration
Statement is less than all of the Registrable Securities, or for
any other reason any outstanding Registrable Securities are not
then covered by an effective Registration Statement, then the
Company shall prepare and file by the Filing Date for such
Registration Statement, one or more additional Registration
Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415, on Form SB-2 (or on such other form appropriate for such
purpose). Each such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
“Plan of Distribution” attached hereto as Annex A. The
Company shall cause each such Registration Statement to be declared
effective under the Securities Act as soon as possible but, in any
event, by its Effectiveness Date, and shall use its reasonable best
efforts to keep such Registration Statement continuously effective
under the Securities Act during the entire Effectiveness
Period.
(c) Promptly following any date on which the
Company becomes eligible to use a registration statement on Form
S-3 to register the Registrable Securities for resale, the Company
shall file a registration statement on Form S-3 covering the
Registrable Securities (or a post-effective amendment on Form S-3
to the then effective Registration Statement) and shall cause such
Registration Statement to be declared effective as soon as possible
thereafter, but in any event prior to the Effectiveness Date
therefor. Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
“Plan of Distribution” attached hereto as Annex A. The
Company shall cause such Registration Statement to be declared
effective under the Securities Act as soon as possible but, in any
event, by its Effectiveness Date, and shall use its reasonable best
efforts to keep such Registration Statement continuously effective
under the Securities Act during the entire Effectiveness
Period.
(d) If: (i) a Registration Statement is not filed
on or prior to its Filing Date (if the Company files a Registration
Statement without affording the Holders the opportunity to review
and comment on the same as required by Section 3(a) hereof, the
Company shall not be deemed to have satisfied this clause (i)), or
(ii) a Registration Statement is not declared effective by the
Commission on or prior to its required Effectiveness Date, or (iii)
after its Effective Date, without regard for the reason thereunder
or efforts therefore, such Registration Statement ceases for any
reason to be effective and available to the Holders as to all
Registrable Securities to which it is required to cover at any time
prior to the expiration of its Effectiveness Period for more than
an aggregate of 30 Trading Days (which need not be consecutive)
(any such failure or breach being referred to as an
“Event,” and for purposes of clauses (i) or (ii) the
date on which such Event occurs, or for purposes of clause (iii)
the date which such 30 Trading Day-period is exceeded, being
referred to as “Event Date”), then in addition to any
other rights the Holders may have hereunder or under applicable
law, the Company shall pay to each Holder an amount in cash, as
partial liquidated damages and not as a penalty, equal to 1% of the
principal amount subscribed for by such Holder per month, due on
the first business day following the Filing Date or Effectiveness
Date, as applicable, provided that the Company shall not be
required to pay any liquidated damages for delays due to Commission
concerns or comments for any reason relating to Rule 415 or its
interpretation. In the event that the number of Shares and the
shares underlying the Warrants to be registered on the initial
registration statement as permitted by the Commission is less than
the full amount of the Registrable Securities as a result of Rule
415 of the Securities Act or its interpretation, the Company shall
file one or more subsequent registration statements to register the
rest of the Registrable Securities until all Registrable Securities
are registered, which shall be filed within thirty (30) days from
the day when the Company becomes qualified or permitted by the
Commission to file a new subsequent registration statement to
registered the rest of the Restrable Securities; provided that each
of such subsequent registration statement shall only register the
number of Registrable Securities as permitted under Rule 415 of the
Securities Act or its interpretation. Each Purchaser’s shares
registered in the subsequent registrations are on a pro rata basis.
If a subsequent registration statement is not filed by the
deadline, damages equal to the amount of 1.0% of the remaining
unregistered principal amount shall be paid to the Purchaser on the
first business day after the deadline, and on each anniversary of
said date (applied on a daily pro rata basis) until such
registration statement is filed.
(e) The parties agree that the Company will not be
liable for liquidated damages under this Section in respect of the
Warrants.
(f) Each Holder agrees to furnish to the Company a
completed Questionnaire in the form attached to this Agreement as
Annex B (a “Selling Holder Questionnaire”). The Company
shall not be required to include the Registrable Securities of a
Holder in a Registration Statement and shall not be required to pay
any liquidated or other damages under Section 2(d) to any Holder
who fails to furnish to the Company a fully completed Selling
Holder Questionnaire at least two Trading Days prior to the Filing
Date (subject to the requirements set forth in Section
3(a)).
3. Registration Procedures. In connection with the
Company's registration obligations hereunder, the Company
shall:
(a) Not less than four Trading Days prior to the
filing of a Registration Statement or any related Prospectus or any
amendment or supplement thereto, the Company shall furnish to each
Holder copies of the “Selling Stockholders” section of
such document, the “Plan of Distribution” and any risk
factor contained in such document that addresses specifically this
transaction or the Selling Stockholders, as proposed to be filed
which documents will be subject to the review of such Holder. The
Company shall not file a Registration Statement, any Prospectus or
any amendments or supplements thereto in which the “Selling
Stockholder” section thereof differs from the disclosure
received from a Holder in its Selling Holder Questionnaire (as
amended or supplemented).
(b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to each
Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement
continuously effective as to the applicable Registrable Securities
for its Effectiveness Period and prepare and file with the
Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable
Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible to any comments received
from the Commission with respect to each Registration Statement or
any amendment thereto and, as promptly as reasonably possible
provide the Holders true and complete copies of all correspondence
from and to the Commission relating to such Registration Statement
that would not result in the disclosure to the Holders of material
and non-public information concerning the Company; and (iv) comply
in all material respects with the provisions of the Securities Act
and the Exchange Act with respect to the Registration Statements
and the disposition of all Registrable Securities covered by each
Registration Statement.
(c) Notify the Holders as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than three
Trading Days prior to such filing and, in the case of (v) below,
not less than three Trading Days prior to the financial statements
in any Registration Statement becoming ineligible for inclusion
therein) and (if requested by any such Person) confirm such notice
in writing no later than one Trading Day following the day (i)(A)
when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B)
when the Commission notifies the Company whether there will be a
“review” of such Registration Statement and whenever
the Commission comments in writing on such Registration Statement
(the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders that pertain to
the Holders as a Selling Stockholder or to the Plan of
Distribution, but not information which the Company believes would
constitute material and non-public information); and (C) with
respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request
by the Commission or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information; (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of
a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding
for such purpose; and (v) of the occurrence of any event or passage
of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or
the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(d) Use its reasonable best efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of a Registration Statement, or (ii)
any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) Furnish to each Holder, without charge, at
least one conformed copy of each Registration Statement and each
amendment thereto and all exhibits to the extent requested by such
Person (including those previously furnished) promptly after the
filing of such documents with the Commission.
(f) Promptly deliver to each Holder, without
charge, as many copies of each Prospectus or Prospectuses
(including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request. The
Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement
thereto.
(g) Prior to any public offering of Registrable
Securities, register or qualify such Registrable Securities for
offer and sale under the securities or Blue Sky laws of all
jurisdictions within the United States, to keep each such
registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statements.
(h) Cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to
the Registration Statements, which certificates shall be free, to
the extent permitted by the Purchase Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such Holders may
request.
(i) Upon the occurrence of any event contemplated
by Section 3(c)(v), as promptly as reasonabl
