Unassociated Document


    Exhibit
      10.12.5

    


    RIGHT
      OF FIRST REFUSAL AND

    CORPORATE
      OPPORTUNITIES AGREEMENT

     

    This
      RIGHT
      OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
      (this
“Agreement”)
      is
      entered into as of the __th day of August, 2008, by and between Chardan 2008
      China Acquisition Corp., a British Virgin Islands business company with limited
      liability (the “Company”),
      with
      offices c/o Chardan Capital, LLC, at Suite 18E, Tower A, Oriental Kenzo Plaza,
      48 Dongzhimenwai Street, Beijing, 100027, China, and Chardan China Investments,
      LLC (“Chardan
      China Investments”).

    


    WHEREAS,
      Brean
      Murray, Carret & Co., LLC, Maxim Group LLC and Roth Capital Partners, LLC,
      acting as representatives (the “Representatives”)
      of the
      underwriters (the “Underwriters”),
      have
      entered into an underwriting agreement, dated _____ __, 2008, to underwrite
      an
      initial public offering (“IPO”)
      of the
      securities of the Company and embark on, undertake and continuing to participate
      in the IPO process;

    


    WHEREAS,
      in
      connection with the IPO, the Company has filed a Registration Statement, No.
      333-152623 on Form F-1, as amended (the “Registration
      Statement”),
      with
      the Securities and Exchange Commission for the registration, under the
      Securities Act of 1933, as amended, of 6,875,000 units of the Company, each
      unit
      consisting of one ordinary share, par value $0.0001 per share (an “Ordinary
      Share”)
      and
      one warrant to purchase one ordinary share;

    


    WHEREAS,
      Chardan
      China Investments and the Company share certain officers and directors (the
      “Affiliates”);
      and

    


    WHEREAS,
      because
      each of the Company and Chardan
      China Investments will be seeking business opportunities in the People’s
      Republic of China, the parties have made this Agreement to clarify the business
      opportunities for which each party shall have the right of first
      refusal.

    


    NOW,
      THEREFORE,
      in
      consideration of the mutual covenants and agreements set forth herein, and
      for
      other good and valuable consideration, the receipt and sufficiency of which
      are
      hereby acknowledged, the parties hereto agree as follows:

    


    1 Right
      of First Refusal.

    


    (a) For
      the
      term specified in Section 2 hereof, Chardan China Investments agrees to grant
      to
      the Company (i) in its certificate of incorporation or equivalent document,
      or
      (ii) by action of its board of directors and/or shareholders, as may be required
      under applicable law governing Chardan China Investments, as applicable, a
      right
      of first refusal for corporate opportunities with respect to any prospective
      target business or businesses operating within any industry or sector in the
      People’s Republic of China as well as the Hong Kong Special Administrative
      Region and the Macau Special Administrative Region, but not Taiwan, that have
      a
      fair market value reasonably estimated to be $42 million or more (a
“Suitable
      Target Business”).

    


    (b) Decisions
      by the Company to release Chardan China Investments to pursue a Suitable Target
      Business must be made by unanimous consent of the Company’s disinterested
      directors.

    


    (c) Any
      directors, officers or employees of Chardan China Investments who become aware
      of a Suitable Target Business shall provide written notice to the Company within
      five (5) business days.

    


    (d) Any
      right
      of
      first refusal granted pursuant to this Agreement shall expire ninety
      (90)
      days
      from the date of the written notice (the “Expiration
      Date”).

    


    (e) Chardan
      China Investments further agrees that it will not enter into any agreement
      with
      a Suitable Target Business until the earlier of (i) its receipt of written
      notification of the Company’s determine not to pursue a Business Combination (as
      hereinafter defined) with the Suitable Target Business, or (ii) the Expiration
      Date. Notwithstanding the foregoing, the term “Business Combination” shall not
      include any company with respect to which Chardan China Investments has
      initiated any contacts or entered into any discussions, formal or informal,
      or
      negotiations regarding a company being acquired by Chardan China Investments
      prior to the date hereof.


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    2. Term. This
      Agreement shall commence upon the effective date of the Company’s Registration
      Statement and extend until the earlier of: (i) the consummation of the Company’s
      initial Business Combination, (ii) the Company’s liquidation, or (iii) until
      such time as the Affiliate ceases to be an officer or director of the Company,
      each in the circumstances and manner as more fully described in the Registration
      Statement (the “Term”).

    


    3. Miscellaneous.

    


    (a) As
      used
      herein, the term “Business
      Combination”
shall
      mean the initial acquisition by the Company, by capital merger, share exchange,
      assets or share acquisition, exchangeable share transaction, contractual control
      arrangement or any other similar business combination, of a business or
      businesses having its primary operations in the People’s Republic of China,
      including the Hong Kong Special Administrative Region and the Macau Special
      Administrative Region, but not Taiwan.

    


    (b) Any
      notice, consent or request to be given in connection with any of the terms
      or
      provisions of this Agreement shall be in writing and shall be sent by express
      mail or similar private courier service, by certified mail (return receipt
      requested), by hand delivery or by facsimile transmission:

    


    if
      to the
      Company, to:

    


    Chardan
      2008 China Acquisition Corp.

    c/o
      Chardan Capital, LLC

    Suite
      18E, Tower A

    Oriental
      Kenzo Plaza

    48
      Dongzhimenwai Street

    Beijing,
      100027, China

    Fax
      No.:
      86-10-84477246

    Attn:
      Xiaosong Zhong, Chief Financial Officer

    


    with
      a
      copy in each case to:

    


    Richardson
      & Patel LLP

    405
      Lexington Avenue, 26th Floor

    New
      York,
      New York 10174

    Fax
      No.:
      (212) 907-6687

    Attn.:
      Jody R. Samuels, Esq.

    


    and

    


    Brean
      Murray, Carret & Co., LLC

    570
      Lexington Avenue

    New
      York,
      New York 10022

    Fax
      No.:
      (212) 702-6649

    Attn.:
      William McClusky

    


    and

    


    Maxim
      Group LLC

    405
      Lexington Avenue, 2nd Floor

    New
      York,
      New York 10174

    Fax
      No.:
      (212) 895-3555

    Attn.:
      Clifford Teller

    


    and


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


    Roth
      Capital Partners, LLC

    24
      Corporate Plaza

    Newport
      Beach, California 92660

    Fax
      No.:
      (949) 720-7215

    Attn.:
      Renny Chavanikamannil

    


    and

    


    Ellenoff
      Grossman & Schole LLP

    150
      East
      42nd Street, 11th Floor

    New
      York,
      New York 10017

    Fax
      No.:
      (212) 370-7889

    Attn.:
      Lawrence A. Rosenbloom, Esq.

    


    if
      to
      Chardan China Investments, to:

    


    c/o
      Chardan 2008 China Acquisition Corp.

    Suite
      18E, Tower A

    Oriental
      Kenzo Plaza

    48
      Dongzhimenwai Street

    Beijing,
      100027, China

    Fax
      No.:
      86-10-84477246

    Attn.:
      Li
      Zhang

    


    with
      a
      copy to:

    


    Richardson
      & Patel LLP

    405
      Lexington Avenue, 26th Floor

    New
      York,
      New York 10174

    Fax
      No.:
      (212) 907-6687

    Attn.:
      Jody R. Samuels, Esq.

    


    (c) If
      any
      provision of this Agreement shall be declared to be invalid or unenforceable,
      in
      whole or in part, such invalidity or unenforceability shall not affect the
      remaining provisions hereof which shall remain in full force and
      effect.

    


    (d) Neither
      this Agreement nor any rights or obligations hereunder shall be assignable
      or
      otherwise subject to hypothecation by either party hereto.

    


    (e) This
      Agreement may only be amended by a written instrument executed by each of the
      parties hereto. Notwithstanding the foregoing, this Agreement may not be waived
      or amended to provide for its termination prior to the expiration of the Term
      without the approval of the holders of 80% of the Company’s Ordinary Shares
      purchased in the IPO.

    


    (f) The
      respective rights and obligations of the parties hereunder shall survive any
      termination of this Agreement to the extent necessary to the intended
      preservation of such rights and obligations. The provisions of this Section
      7
      are in addition to the survivorship provisions of any other section of this
      Agreement.

    


    (g) Chardan
      China Investments hereby (i) waives any and all right, title, interest or claim
      of any kind (a “Claim”)
      in or
      to all funds held in the trust account established for the benefit of the public
      shareholders of the Company (the “Trust
      Account”)
      and
      any remaining net assets of the Company upon liquidation of the Trust Account
      and dissolution of the Company, (ii) waives any Claim Chardan China Investments
      may have in the future as a result of, or arising out of, any contracts or
      agreements with the Company, and (iii) agrees it will not seek recourse against
      the Trust Account for any reason.

    

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

    

    (h) This
      Agreement shall be governed by and construed and enforced in accordance with
      the
      laws of the State of New York, without giving effect to conflicts of law
      principles that would result in the application of the substantive laws of
      another jurisdiction. The undersigned hereby (i) agrees that any action,
      proceeding or claim against him arising out of or relating in any way to this
      letter agreement (a “Proceeding”)
      shall
      be brought and enforced in the federal courts of the United States of America
      for the Southern District of New York, and irrevocably submits to the
      jurisdiction of such courts, which jurisdiction shall be exclusive; (ii) waives
      any objection to the exclusive jurisdiction of such courts and any objection
      that such courts represent an inconvenient forum; and (iii) irrevocably agrees
      to appoint Richardson & Patel LLP (Attention: Jody R. Samuels) as agent for
      the service of process in the State of New York to receive, for the undersigned
      and on its behalf, service of process in any Proceeding. If for any reason
      such
      agent is unable to act as such, the undersigned will promptly notify the Company
      and the Underwriters and appoint a substitute agent acceptable to each of the
      Company and the Underwriters within thirty (30) days and nothing in this
      Agreement will affect the right of either party to serve process in any other
      manner permitted by law.

    


    (i) THE
      PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
      UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTION
      CONTEMPLATED BY THIS AGREEMENT.

    


    (j) This
      Agreement contains the entire understanding between the parties hereto and
      supersedes in all respects any prior or other agreement or understanding
      concerning the subject matter hereof between the Company and Chardan China
      Investments.

    


    (k) This
      Agreement may be executed in two or more counterparts, each of which will be
      deemed an original, but all of which, taken together, shall be deemed one
      document.

    


    (l) The
      failure of any of the parties hereto to at any time enforce any of the
      provisions of this Agreement shall not be deemed or construed to be a waiver
      of
      any such provision, nor to in any way effect the validity of this Agreement
      or
      any provision of this Agreement. No waiver of any breach, non-compliance or
      non-fulfillment of any of the provisions of this Agreement shall be effective
      unless set forth in a written instrument executed by the party or parties
      against whom or which enforcement of such waiver is sought; and no waiver of
      any
      such breach, non-compliance or non-fulfillment shall be construed or deemed
      to
      be a waiver of any other or subsequent breach non-compliance or
      non-fulfillment.

    


    (m) The
      parties hereto hereby acknowledge that the Underwriters, including, without
      limitation the Representatives, are third party beneficiaries of this Agreement
      and this Agreement may not be modified or changed without the prior written
      consent of the Representatives.

    


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    IN
      WITNESS WHEREOF,
      the
      parties hereto have executed this Right of First Refusal and Corporate
      Opportunities Agreement as of the date first specified above.

    


    
      	
              CHARDAN
                2008 CHINA ACQUISITION CORP.

            
	 	 
	
              By:

            	 

	 	
              Name:
                Kerry Propper

            
	 	
              Title:
                Chief Executive Officer and
                Director

            


    

    


    
      	
              CHARDAN
                CHINA INVESTMENTS, LLC

            
	 	 
	
              By:

            	 
	 	
              Name:
                Li Zhang

            
	 	
              Title:
                

            


    


    
      
        
        

      

      
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