Unassociated Document


    
      Exhibit
        10.12.1

       

      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 Capital Markets,
        LLC (“Chardan
        Capital Markets”).

      


      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 (“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 (“Warrant”);

      


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

      


      WHEREAS,
        because
        each of the Company and Chardan
        Capital Markets 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 Capital Markets 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 Capital Markets, 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 Capital Markets 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 Capital Markets 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
        Capital Markets 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 Capital Markets has initiated
        any contacts or entered into any discussions, formal or informal, or
        negotiations regarding a company being acquired by Chardan Capital Markets
        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 Capital Markets, to:

      


      Chardan
        Capital Markets, LLC

      17
        State
        Street

      Suite
        1600

      New
        York,
        NY 10004

      Fax
        No.:
        (646) 465-9039

      Attn.:
        Kerry Propper

      


      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
        Capital Markets 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 Capital Markets
        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 Capital
        Markets

      


      (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.

      


      [REMAINDER
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          4

          
            

          

        

        
          
          

        

         

      

      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
                  CAPITAL MARKETS, LLC

              
	 	 
	
                By:

              	 

	 	
                Name:
                  Kerry Propper

              
	 	
                Title:
                  Chief Executive Officer

              


      

       

      
        
          
          

        

        
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