AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT is made and entered into as
of October 1, 2009, by and among Tremisis Energy Acquisition Corporation II, a
Delaware corporation (“Parent”), Asiana IDT
Inc., a Korean company (“Company”), and Asiana
Airlines, Inc., a Korean company (“Asiana” or the “Stockholder”). (Each
of the above party, “party,” and collectively “parties,” unless the context
requires otherwise).
RECITALS
A. Asiana
is the direct and beneficial owner of all of the outstanding capital stock
(“Company Common
Stock”) of the Company.
B. Subject
to the terms and conditions of this Agreement (defined below), Parent at the
Closing (defined below), shall acquire, by an issuance of its capital stock and
payment of cash as provided hereunder, all of the Company Common Stock from
Asiana (“Company
Common Stock Purchase”). The term “Agreement” as used
herein refers to this Securities Purchase Agreement, originally executed as of
July 30, 2009 and amended and restated as of October 1, 2009, and as the same
may be further amended from time to time, and all schedules hereto. For the
purpose of this Agreement, the capital stock of Parent shall be referred to as
“Parent Common Stock.”
NOW,
THEREFORE, in consideration of the covenants, promises and representations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE
I
THE
COMPANY COMMON STOCK PURCHASE
1.1 Purchase and
Sale. Upon the terms and subject to the conditions hereof, at
the Closing (as defined below), Asiana shall sell, transfer, assign and convey
to Parent, and Parent shall purchase from Asiana, all of the right, title and
interest of Asiana in and to the Company Common Stock representing all of the
issued and outstanding Company Common Stock.
1.2 Purchase
Price.
(a) Subject
to adjustment as hereinafter set forth, the aggregate purchase price (“Purchase Price”) to
be paid by Parent to Asiana or its designees for the Company Common Stock shall
be the following:
(i) The
United States dollar (“USD”) 57,109,050 in cash; and
(ii) certificates
representing, in the aggregate, 9,702,800 shares of Parent Common
Stock.
The
9,702,800 shares of Parent Common Stock issued under this Section 1.2(a)(ii) are
sometimes referred to herein as the “Asiana Shares” and
the cash issued under this Section 1.2(a)(i) is sometimes referred to herein as
the “Cash
Consideration.”
(b) Currency:
Payment of the Cash Consideration shall be made in United States dollars at
Average Exchange Rate. For the avoidance of doubt, Parent shall be responsible
for paying the said Cash Consideration in accordance with the terms and
conditions stated herein, and agrees to bear all the risks and expenses
associated with such payment including, without limitation, any losses due to
the currency fluctuation.
(c) Average
Exchange Rate: The Average Exchange Rate shall mean the average exchange rate
determined by Seoul Money Brokerage Services, Ltd. between the United States
dollar and the Korean won over the 10 business-day period immediately prior to
July 30, 2009; provided, however, that if the exchange rate as of the Closing
differs from the Average Exchange Rate by more than 10%, the parties agree to
renegotiate the rate to be applied to the transaction.
(d) Expenses:
All expenses of “due diligence” investigation of the Company will be paid by
Parent with the exception that Asiana will, at its cost, provide financial
statements of the recent three (3) years and the first half of the fiscal year
of 2009, all of which shall be converted to U.S. GAAP.
(e) Time
of payment: The parties hereto intend that the transfer of 100% of its shares of
the Company by Asiana to Parent will take place as soon as possible but no later
than the thirtieth (30th) business day from the date of the approval by the
Parent’s shareholders at the shareholders’ meeting, subject to the terms and
conditions set forth in this Agreement. For the avoidance of doubt, Asiana’s
agreement to transfer its shares to Parent shall be conditional upon the Parent
making the cash payment referenced in Section 1.2(a)(i) above and issuing the
valid and fully paid up Asiana Shares to Asiana on the same date pursuant to the
applicable procedures governing the issuance of stock certificate.
(f) Extension:
In the event of any and all reasonable cause for change in the time of payment,
including but not limited to internal and external circumstances of all the
parties involved, the parties desire that the Closing Date (as defined below)
may be extended up to fourteen (14) business days with consent of all parties,
but the Closing shall take place as soon as possible. Notwithstanding the
foregoing, the provision of this Section 1.2(f) shall be subject to the
provisions of Sections 1.3 and 6.17.
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1.3
The
Closing.
Subject
to Section 6.16 and other terms and conditions set forth herein, the
consummation of the Company Common Stock Purchase (“Closing”) shall take
place at the offices of Xxxxxxxx Xxxxxx, counsel to Parent, 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 at a time and date to be specified by the parties,
which shall be as soon as practicable following the approval by the Parent’s
stockholders at the stockholders’ meeting of the Company Common Stock Purchase
in accordance with the terms and conditions herein and approval by the Parent’s
warrantholders at the warrantholder meeting of the Warrant Redemption (as such
terms are defined below) but no later than the thirtieth (30th)
business day after the date of such approvals, or at such other time, date and
location as the parties hereto agree in writing (the “Closing
Date”). Closing signatures may be transmitted by facsimile or
by emailed PDF file.
1.4 Deliveries.
(a) Asiana. At
the Closing, Asiana will assign and transfer to Parent all of its right, title
and interest in and to the Company Common Stock by delivering to Parent the
certificates representing such Company Common Stock, duly endorsed for transfer
and free and clear of all liens.
(b) Parent. At
the Closing, Parent shall deliver to Asiana the following: (i) the Cash
Consideration and Asiana Shares representing the Purchase Price to which Asiana
is entitled pursuant to Section 1.2; and (ii) written opinions of the counsel
for the Parent that the Asiana Shares are validly issued and fully
paid under the applicable law, and the redemption of the warrants and of the
management held shares pursuant to Section 5.1(a) herein were done validly by
Parent, in form and substance satisfactory to Asiana.
1.5 Further
Assurances. From time to time after the date of this
Agreement, each of the Parties hereto shall execute and deliver such other
documents and instruments, provide such materials and information and take such
other actions as may reasonably be necessary, proper or advisable, to the extent
permitted by law, to fulfill its obligations under this Agreement.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF PARENT, ASIANA AND THE COMPANY
2.1 Authority Relative to this
Agreement. Each of the Parent, Asiana and the Company has all
necessary corporate power and authority to: (i) execute and deliver
this Agreement and each ancillary document that such party is to execute or
deliver pursuant to this Agreement, and (ii) carry out such party’s obligations
hereunder and thereunder and, to consummate the transactions contemplated hereby
and thereby.
2.2 Representation as to Asiana
and Company Information. Asiana and the Company jointly and separately,
hereby represent and warrant to Parent that (i) at the date of this Agreement
and on the Closing Date, the information provided by Asiana and the Company to
Parent relating to Asiana and the Company contained all the material information
relating to Asiana and the Company; and (ii) such information, on such dates,
does 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.
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2.3. Representation as to Parent
Information. Parent hereby represents and warrants to Asiana and the
Company that: (i) at the date of this Agreement and on the Closing Date, the
information provided by Parent to Asiana relating to Parent contained all the
material information relating to Parent; and (ii) such information, on such
dates, does 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.
2.4 Representation as to the
Company: Asiana and the Company, jointly and separately, hereby represent
and warrant that the Company has no contingent liabilities and off-balance debts
and that it shall be accountable to all such liabilities as are not disclosed at
the time of due diligence except for the matters stated in Schedule 2.4
hereto.
2.5 Representation as to the
Trust Fund Balance: Parent hereby represents and warrants that all
payments due and payable from the Trust Fund (as defined below) under Article V
hereof shall not exceed the current balance of the Trust Fund remaining as of
the Closing Date.
ARTICLE
III
GUARANTEE OF THE RIGHT OF
MANAGEMENT
3. For
a period of one (1) year after the Closing, officers and directors shall be
designated with the conditions set below:
(a) Parent:
One outside director designated by the directors of Parent in office prior to
the Closing may be appointed to the position as a senior managing director of
Parent. Such person shall be afforded the same rights and paid similar
compensation to that of other directors. Asiana may determine the role of such
director.
(b) Company:
The directors of Parent in office prior to the Closing may appoint one part-time
outside, non-registered director of the Company. Asiana may determine the
rights, compensation and / or role of such director.
(c) Asiana:
Asiana shall appoint an officer or director with fluency in English as the CFO
of Parent.
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ARTICLE
IV
CONDUCT PRIOR TO THE
EFFECTIVE TIME
4. Conduct of Business by the
Company and Parent. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
pursuant to its terms or the Closing (such period, “Effective Time”),
each of the Company and Parent shall, except to the extent that the other party
shall otherwise consent in writing or as contemplated by this Agreement or as
set forth in Schedule
4.1, carry on its business in the usual, regular and ordinary course
consistent with past practices, in substantially the same manner as heretofore
conducted and in compliance with all applicable laws and regulations (except
where noncompliance would not be reasonably expected to have a Material Adverse
Effect), pay its debts and taxes when due subject to good faith disputes over
such debts or taxes, pay or perform other material obligations when due, and use
commercially reasonable efforts consistent with past practices and
policies to (i) preserve substantially intact its present business organization,
(ii) keep available the services of its present key officers and key employees
and (iii) preserve its relationships with customers, suppliers, distributors,
licensors, licensees, and others with which it has significant business
dealings. In addition, except as required by the terms of this
Agreement and except as set forth in Schedule 4.1, without
the prior written consent of the other party, during the period from the date of
this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Closing, each of the Company and Parent
shall not do any of the following:
(a) transfer
or license to any person or otherwise extend, amend or modify any material
rights to any Intellectual Property of the Company, or enter into grants to
transfer or license to any person future Intellectual Property rights, other
than, with respect to the Company in the ordinary course of business consistent
with past practices provided that in no event shall the Company license on an
exclusive basis or sell any Intellectual Property of the Company;
(b) declare,
set aside or pay any dividends on or make any other distributions (whether in
cash, stock, equity securities or property) in respect of any capital stock, or
split, combine or reclassify any capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for any capital stock;
(c) issue,
deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the
foregoing with respect to, any shares of capital stock or other equity
securities or ownership interests or any securities convertible into or
exchangeable for shares of capital stock or other equity securities or ownership
interests, or subscriptions, rights, warrants or options to acquire any shares
of capital stock or other equity securities or ownership interests or any
securities convertible into or exchangeable for shares of capital stock or other
equity securities or other ownership interests, or enter into other agreements
or commitments of any character obligating it to issue any such shares, equity
securities or other ownership interests or convertible or exchangeable
securities;
(d) amend
its articles or certificate of incorporation and bylaws (or other comparable
governing instruments with different names) (collectively referred to herein as
“Charter
Documents”);
(e) sell,
lease, license, encumber or otherwise dispose of any properties or assets,
except with respect to the Company, (A) sales of inventory in the ordinary
course of business consistent with past practice, and (B) the sale, lease or
disposition (other than through licensing) of property or assets that are not
material, individually or in the aggregate, to the business of the
Company;
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(f) except
in the ordinary course of business consistent with past practices, modify, amend
or terminate any material contract, as applicable, or waive, delay the exercise
of, release or assign any material rights or claims thereunder;
(g) enter
into any transaction with or distribute or advance any assets or property to any
of its officers, directors, partners, stockholders, managers or members other
than the payment of salary and benefits and tax distributions in the ordinary
course of business consistent with past practices; or
(h) agree
in writing or otherwise agree, commit or resolve to take any of the actions
described in Section 4.1 (a) through (g) above.
ARTICLE
V
ADDITIONAL
AGREEMENTS
5.1 Proxy Statement; Special
Meeting.
(a) As
soon as is reasonably practicable after execution of this
Agreement, Parent shall prepare and file with the SEC under the
Securities Exchange Act of 1934 (hereinafter referred to as the “Exchange Act”), and
with all other applicable regulatory bodies, proxy materials for the purpose of
soliciting proxies from (A) holders of Parent Common Stock to vote, at a meeting
of the holders of Parent Common Stock to be called for such purpose (the “Stockholder Special
Meeting”), in favor of, among other things, (i) the adoption of this
Agreement and the approval of the Company Common Stock Purchase including
without limitation approval of the issuance of the Asiana Shares and the
repurchase of the Sponsor Shares (as hereinafter defined) at USD 0.0 per share
and the cancellation of such shares on a date not later than the Closing Date,
(ii) the change of the name of Parent to a name selected by the Company, (iii)
the election of directors of Parent, whose election shall be effective as of the
Closing Date subject to terms and conditions set forth herein, (vi) other
changes to Parent’s certificate of incorporation agreed by the parties hereto,
including (1) changing corporate existence to perpetual; (2) incorporating the
classification of directors that would result from the election of directors;
(3) removing provisions that will no longer be applicable to Parent after the
Company Common Stock Purchase; and (4) making certain other changes in terms,
gender and number that are substantively immaterial; and (v) an adjournment
proposal to adjourn the Stockholder Special Meeting if, based on the tabulated
vote count, Parent is not authorized to proceed with the Company Common Stock
Purchase and (B) holders of warrants to purchase Parent Common Stock(“Parent Warrants”) to
vote, at a meeting of the holders of Parent Warrants to be called for such
purpose (the “Warrantholder Special
Meeting” and together with the Stockholder Special Meeting, collectively
the “Special
Meeting”), in favor of, among other things, (i) to amend the terms of the
Warrant Agreement dated December 6, 2007, by and between Parent and Continental
Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”),
covering the Parent Warrants to allow redemption of the Parent Warrants(the
“Warrant Redemption”) as promptly as practicable after the Closing Date, and
(ii) an adjournment proposal to adjourn the Warrantholder Special Meeting if,
based on the tabulated vote count, Parent is not authorized to proceed with the
Warrant Redemption. Such proxy materials shall be in the form of a proxy
statement to be used for the purposes of soliciting proxies from holders of
Parent Common Stock and Parent Warrants for the matters to be acted upon at the
Special Meeting (the “Proxy Statement”).
The Company shall furnish to Parent on a timely basis all information concerning
the Company (or any of its Subsidiaries) as Parent may reasonably request in
connection with the preparation of the Proxy Statement. Parent, with the
assistance of the Company, shall promptly respond to any SEC comments on the
Proxy Statement and shall otherwise use commercially reasonable efforts to cause
the Proxy Statement to be approved for issuance by the SEC as promptly as
practicable. Parent shall also take any and all commercially
reasonable actions required to satisfy the requirements of the Exchange
Act. The Parent hereby agrees to repurchase 2,203,298 outstanding
shares of Parent Common Stock owned by the management of the Parent (“Sponsor Shares”) at
the price of USD 0.0 per share and to cancel such shares on a date not later
than the Closing Date. (“Parent Share
Redemption”) The Parent hereby represents and warrants
that the Parent shall effectuate the foregoing in a legally permitted way and
shall indemnify the Company and Asiana for any damages incurred or to be
incurred as a result of failure to effectuate the Parent’s obligations stated
herein whether by reason of illegality or any other reasons
whatsoever.
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(b) As
soon as reasonably practicable following approval by the SEC, Parent shall
distribute the Proxy Statement to the holders of Parent Common Stock and Parent
Warrants and, pursuant thereto, shall call the Special Meeting in accordance
with the Delaware General Corporation Law (the “DGCL”) and, subject
to the other provisions of this Agreement, solicit proxies from such holders to
vote in favor of the adoption of this Agreement and the approval of the Company
Common Stock Purchase and the other matters presented to the stockholders of
Parent for approval or adoption at the Special Meeting, including, without
limitation, the matters described in Section 5.1(a).
(c) Parent
shall comply with all applicable provisions of and rules under the Exchange Act
and all applicable provisions of the DGCL in the preparation, filing and
distribution of the Proxy Statement, the solicitation of proxies thereunder, and
the calling and holding of the Special Meeting. Without limiting the foregoing,
Parent shall ensure that the Proxy Statement does not, as of the date on which
it is first distributed to holders of Parent Common Stock, and as of the date of
the Special Meeting, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading (provided that
Parent shall not be responsible for the accuracy or completeness of any
information relating to the Company or the Stockholder any other information
furnished by the Company or the Stockholder for inclusion in the Proxy
Statement). The Company represents and warrants that the information
relating to the Company supplied in writing by the Company and the Stockholder
for inclusion in the Proxy Statement will not as of the date on which the Proxy
Statement (or any amendment or supplement thereto) is first distributed to
holders of Parent Common Stock and Parent Warrants or at the time of the Special
Meeting contain any statement which, at such time and in light of the
circumstances under which it is made, is false or misleading with respect to any
material fact, or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein not false or
misleading.
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5.2 Access to
Information. The Company and Asiana will afford Parent and its financial
advisors, accountants, counsel and other representatives reasonable access
during normal business hours, upon reasonable notice, to the properties, books,
records and key personnel of the Company during the period prior to the Closing,
and subject to any applicable confidentiality agreements with third parties, to
obtain all information concerning the business, including the status of business
development efforts, properties, results of operations and personnel of the
Company as Parent may reasonably request. No information or knowledge
obtained by Parent in any investigation pursuant to this Section 5.2 will affect
or be deemed to modify any representation or warranty contained herein or the
conditions to the obligations of the parties to consummate the Company Common
Stock Purchase.
Parent
will afford the Company and its financial advisors, underwriters, accountants,
counsel and other representatives reasonable access during normal business
hours, upon reasonable notice, to the properties, books, records and personnel
of Parent during the period prior to the Closing, and subject to any applicable
confidentiality agreements with third parties, to obtain all information
concerning the business, including properties, results of operations and
personnel of Parent, as the Company may reasonably request. No
information or knowledge obtained by the Company in any investigation pursuant
to this Section 5.2 will affect or be deemed to modify any representation or
warranty contained herein or the conditions to the obligations of the parties to
consummate the Company Common Stock Purchase.
This Section 5.2 will be applicable
subject to the provisions set forth in Section 6.19.
5.3 Commercially Reasonable
Efforts. Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to use commercially reasonable efforts to
diligently take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Company Common Stock Purchase and the other
transactions contemplated by this Agreement, including using commercially
reasonable efforts to accomplish the following: (i) the obtaining of all
necessary actions, waivers, consents, approvals, orders and authorizations from
Governmental Entities and the making of all necessary registrations,
declarations and filings (including registrations, declarations and filings with
Governmental Entities, if any) and the taking of all reasonable steps as may be
necessary to avoid any suit, claim, action, investigation or proceeding by any
Governmental Entity, (ii) the obtaining of all consents, approvals or waivers
from third parties required as a result of the transactions contemplated in this
Agreement, (iii) the defending of any suits, claims, actions, investigations or
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated hereby, including seeking to
have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed and (iv) the execution or delivery of
any additional instruments reasonably necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this
Agreement. In connection with and without limiting the foregoing,
Parent and its board of directors, and the Company and its board of directors,
shall, if any state takeover statute or similar statute or regulation is or
becomes applicable to the Company Common Stock Purchase, this Agreement or any
of the transactions contemplated by this Agreement, use commercially reasonable
efforts to enable the Company Common Stock Purchase and the other transactions
contemplated by this Agreement to be consummated as promptly as practicable on
the terms contemplated by this Agreement. Notwithstanding anything
herein to the contrary, nothing in this Agreement shall be deemed to require
Parent or the Company to agree to any divestiture by itself of shares of capital
stock or of any business, assets or property, or the imposition of any material
limitation on the ability of any of them to conduct their business or to own or
exercise control of such assets, properties and stock.
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5.4 No Claim Against Trust
Fund. Notwithstanding anything else in this Agreement, the
Company and the Stockholder acknowledges that it has read Parent’s final
prospectus dated December 6, 2007 and understands that Parent has established a
certain trust account referenced in Section 2(c) of the Trust Agreement dated
December 6, 2007 (“Trust Fund”) for the
benefit of Parent’s public stockholders and that Parent may disburse monies from
the Trust Fund only (a) to Parent’s public stockholders in the event they elect
to convert their shares into cash in accordance with Parent’s Charter Documents
and/or the liquidation of Parent, (b) to Parent after, or concurrently with, the
consummation of a business combination, and (c) to Parent in limited amounts for
its working capital requirements and tax obligations. The Company and
the Stockholder further acknowledge that, if the transactions contemplated by
this Agreement, or, upon termination of this Agreement, another business
combination, are not consummated by December 6, 2009, Parent will be obligated
to return to its stockholders the amounts being held in the Trust
Fund. Accordingly, each of the Stockholder and the Company, for
itself and its subsidiaries, affiliated entities, directors, officers,
employees, stockholders, representatives, advisors and all other associates,
hereby waive all rights, title, interest or claim of any kind against Parent to
collect from the Trust Fund any monies that may be owed to them by Parent for
any reason whatsoever, including but not limited to a breach of this Agreement
by Parent or any negotiations, agreements or understandings with Parent (whether
in the past, present or future), and will not seek recourse against the Trust
Fund at any time for any reason whatsoever. This paragraph will
survive this Agreement and will not expire and will not be altered in any way
without the express written consent of Parent, the Company and the
Stockholder.
5.5 Insider Loans; Equity
Ownership. The Company agrees to list and provide to the
Parent prior to the Closing and make schedules for payment and / or performance
of obligations relating to: (i) any and all loans made by the Company to any
officer, director, employee, stockholder or holder of derivative securities of
the Company (“Insider”) to be
repaid to the Company and any other amount owed by such Insider to the Company;
(ii) guaranties or similar arrangements pursuant to which the Company has
guaranteed the payment or performance of obligations of such Insider to a third
party; (iii) any and all direct equity interests in any Insider that
utilizes the name “Asiana IDT.” For the purpose of this Agreement, the Insider
shall mean any officer, director, employee, stockholder or holder of derivative
securities of the Company at or prior to Closing.
5.6 Parent Borrowings;
Indebtedness. At any time prior to the Closing, Parent shall
be allowed to borrow from its directors, officers and/or stockholders to meet
its reasonable capital requirements, with any such loans to be made only as
reasonably required by the operation of Parent in due course on a non-interest
bearing basis and repayable at Closing from the Trust Fund. Any
indebtedness of Parent existing immediately prior to the Closing shall be paid
in full immediately upon the release of funds from the Trust
Fund.
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5.7 Trust Fund
Disbursement. Parent shall cause the Trust Fund to be
disbursed to Parent and as otherwise contemplated by this Agreement immediately
upon the Closing. All liabilities and obligations of Parent due and
owing or incurred at or prior to the Effective Time shall be paid as and when
due, including all amounts payable (i) to stockholders who elect to have their
shares converted to cash in accordance with the provisions of Parent’s Charter
Documents, (ii) all amounts payable in connection with any of the arrangements
or transactions contemplated by Section 5.8 (including all costs and expenses in
connection therewith), (iii) as deferred underwriters’ compensation in
connection with Parent’s initial public offering, (iv) for income tax or other
tax obligations of Parent prior to Closing, (v) as repayment of loans and
reimbursement of expenses to directors, officers and founding stockholders of
Parent and (vi) to third parties (e.g., professionals, printers, transfer
agents, etc.) who have rendered services to Parent in connection with its
operations and efforts to effect a business combination, including the Company
Common Stock Purchase.
5.8 Certain Actions with Respect
to Parent Securities. It is agreed that Parent shall be
permitted to use proceeds of the Trust Fund upon closing of the Company Common
Stock Purchase as necessary to fund agreements and arrangements relating to the
repurchase or redemption of the common stock issued by Parent. Such repurchase
or redemption described in this Section 5.8 shall be limited to the repurchase
of stocks of stockholders who vote against the transactions contemplated herein,
for the purposes of enhancing the likelihood of and securing approval of the
transactions contemplated hereby by the holders of the common stocks issued by
Parent.
5.9 Fees and Expenses.
Except as may be otherwise agreed by the parties hereunder or in separate
written agreement(s), all fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses whether or not the Company Common Stock Purchase is
consummated.
5.10 Warrant Purchases and
Redemption. Parent shall use its best efforts to cause some or
all of the owners of the Sponsor Shares or a designee thereof or other
third party, no later than the record date of the Warrantholder Special Meeting,
to purchase 51% of the outstanding Warrants and to vote such Warrants (the
“Acquired
Warrants”) at the Warrantholder Special Meeting in favor of the proposals
presented for consideration to the holders of the Warrants thereat. At or
after the Closing, Parent shall redeem all outstanding Warrants,
including the Acquired Warrants, in accordance with the terms of the
Warrant Redemption; provided that the redemption price to be paid by Parent for
the Acquired Warrants shall not exceed the purchase price paid by the purchasers
of the Acquired Warrants.
5.11 Sale
Restrictions. No public market
sales of Asiana Shares issued as a result of the Company Common Stock Purchase
shall be made by Asiana and the Company and / or any person in any manner
related thereto during the period prescribed by and as otherwise permitted
pursuant by the lock-up agreement in the form of Exhibit A hereto to be executed
by Asiana in connection with this Agreement.
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5.12 Asiana Stock
Purchase. On or before the date that is two (2) weeks after
the initial filing of the Proxy Statement with the SEC but in no event later
than October 15, 2009, Asiana, at its own cost and expense, shall make best
efforts to purchase in the open market or by privately negotiated transactions,
at a price not greater than $7.95 per share, or greater if reasonably acceptable
to Asiana, a total of 129,870 shares of Parent Common Stock, which shares,
together with the Asiana Shares, shall constitute 50% plus 1 share of all
outstanding Parent Common Stock as of the Closing Date, including, without
limitation, all securities convertible into Parent Common Stock existing on the
Closing Date. If the Closing does not take place, Mr. Sang-Xxxx Xxx shall pay,
within 15 days after the notice of payment from Asiana, Asiana the amount which
represents the difference between the total purchase price paid by Asiana for
the shares of the Parent Common Stock purchased by Asiana pursuant to this
Section 5.12 and the total amount received by Asiana in the liquidation of the
Parent. Such guaranty shall be limited to 129,870 shares purchased prior to the
time above mentioned and shall not apply to any shares of Parent Common Stock
that Asiana purchases in excess of such amount. Notwithstanding the
foregoing sentence, the guaranty by Mr. Sang-Xxxx Xxx for the benefit of Asiana
under this Section 5.12 shall be applicable and triggered whether or not Asiana
is able to purchase all of the 129,870 shares of the Parent Common Stock before
the above mentioned date. Asiana’s failure to complete the purchase
of the 129,870 shares of the Parent Common Stock by the above stated deadline,
despite its best efforts, shall not be a breach of the terms of this
Agreement.
ARTICLE
VI
GENERAL
PROVISIONS
6.1 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally or by commercial delivery service, or sent
via telecopy (receipt confirmed) to the parties at the following addresses or
telecopy numbers (or at such other address or telecopy numbers for a party as
shall be specified by like notice):
if to
Parent, to:
Tremisis Energy Acquisition Corporation
II
545-7 Dogok-Dong
SoftForum
X/X, 0xx Xxxxx
Xxxxxxx-Xx,
Xxxxx, Xxxxx Xxxxx 135-270
Attention:
Chairman of the Board
Telephone:
(82)(0) 000-0000
Telecopy:
with a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attention: Xxxxx
Xxxx Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
11
if to the Company to:
Asiana IDT
S-Tower
00X
000
Xxxxxxxx 0-xx
Xxxxxx-xx
Xxxxx,
Xxxxx (110-700)
Attention: Dong
Xxx Xxxx, Vice President
Telephone: 00-0-0000-0000
Telecopy: 00-0-0000-0000
with a copy to:
Kumho Asiana Group
Strategic
Management Division
Kumho
Asiana Xxxx Xxxxx 00X
000,
Xxxxxxxx 1-ga, Jongno-gu
Xxxxx
000-000, Xxxxx
Attention: Seungoh
Hong, Vice President
Telephone:
00-0-0000-0000
Telecopy: 00-0-0000-0000
if to Asiana to:
Asiana
Airlines, Inc.
Xxxxxx
Xxxx
00,
Xxxx-xxxx, Xxxxxxx-xx
Xxxxx
000-000, Xxxxx
Attention: E
Xxx Xxx, Vice President
Telephone: 00-0-0000-0000
Telecopy: 00-0-0000-0000
with a copy to:
Kumho
Asiana Group
Strategic
Management Division
Kumho
Asiana Xxxx Xxxxx 00X
000,
Xxxxxxxx 1-ga, Jongno-gu
Xxxxx
000-000, Xxxxx
Attention: Seungoh
Hong, Vice President
Telephone: 00-0-0000-0000
Telecopy: 00-0-0000-0000
12
6.2 Interpretation. The
definitions of the terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context shall require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms. When a reference is made in this Agreement to an Exhibit or
Schedule, such reference shall be to an Exhibit or Schedule to this Agreement
unless otherwise indicated. When a reference is made in this
Agreement to Sections or subsections, such reference shall be to a Section or
subsection of this Agreement. Unless otherwise indicated the words
“include,” “includes” and “including” when used herein shall be deemed in each
case to be followed by the words “without limitation.” The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. When reference is made herein to “the business of” an
entity, such reference shall be deemed to include the business of all direct and
indirect Subsidiaries of such entity. Reference to the Subsidiaries
of an entity shall be deemed to include all direct and indirect Subsidiaries of
such entity. For purposes of this Agreement:
(a) the
term “Material Adverse
Effect” when used in connection with the Company or Parent, as the case
may be, means any change, event, or occurrence, individually or when aggregated
with other changes, events, or occurrences, that is materially adverse to the
business, operations, financial results, financial condition or material assets
of the Company or Parent, as applicable, and their respective Subsidiaries,
taken as a whole (and, in the case of Parent, both before and after giving
effect to the Company Common Stock Purchase); provided however that none of the
following alone or in combination shall be deemed, in and of itself, to
constitute a Material Adverse Effect: any changes, events, occurrences or
effects arising out of, resulting from or attributable to (A) acts of war,
sabotage or terrorism, or any escalation or worsening of any such acts of war,
sabotage or terrorism, (B) earthquakes, hurricanes, tornados or other natural
disasters, (C) changes attributable to the public announcement or pendency of
the transactions contemplated hereby, (D) any change in U.S. GAAP, or (E) with
respect to the Company, except to the extent they disproportionately affect the
Company and its Subsidiaries, conditions affecting (1) the industry in which the
Company and its Subsidiaries operate generally or (2) the U.S. economy or
financial markets generally.
(b) the
term “Intellectual
Property” shall mean any or all of the following and all worldwide common
law and statutory rights in, arising out of, or associated therewith: (i)
patents and applications therefor and all reissues, divisions, renewals,
extensions, provisional applications, continuations and continuations-in-part
thereof (“Patents”); (ii)
inventions (whether patentable or not), invention disclosures, improvements,
trade secrets, proprietary information, know how, technology, technical data,
and all documentation relating to any of the foregoing; (iii) copyrights,
copyrights registrations and applications therefor, and all other rights
corresponding thereto throughout the world (“Copyrights”); (iv)
software and software programs; (v) domain names, (vi) industrial designs and
any registrations and applications therefor; (vii) trade names, logos, common
law trademarks and service marks, trademark and service xxxx registrations and
applications therefor (collectively, “Trademarks”); (viii)
all databases and data collections and all rights therein; (ix) all moral rights
of authors, and (x) any similar or equivalent rights to any of the foregoing (as
applicable).
(c) the
term “Legal
Requirements” means any federal, state, local, municipal, foreign or
other law, statute, constitution, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into effect by or
under the authority of any Governmental Entity and all requirements set forth in
applicable the Company Contracts or Parent Contracts;
13
(d) the
term “Person”
shall mean any individual, corporation (including any non-profit corporation),
general partnership, limited partnership, limited liability partnership, joint
venture, estate, trust, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization,
entity or Governmental Entity;
(e) the
term “knowledge” means
actual knowledge or awareness as to a specified fact or event of a Person that
is an individual or of an executive officer or director of a Person that is a
corporation or of a Person in a similar capacity of an entity other than a
corporation;
(f) the
term “Lien”
means any mortgage, pledge, security interest, encumbrance, lien, restriction or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof, any sale with recourse
against the seller or any Affiliate of the seller, or any agreement to give any
security interest);
(g) the
term “Affiliate” means, as
applied to any Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with, such Person; for
purposes of this definition, “control” (including with correlative meanings, the
terms “controlling,” “controlled by” and “under common control with”), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and
(h) the
term “Governmental
Entity” shall mean any United States federal or state court,
administrative agency, commission, governmental or regulatory authority or
similar body.
(i) the
term “Business
Combination” shall mean Parent’s completion of an acquisition of one or
more operating businesses or assets through a merger, stock exchange, asset
acquisition, reorganization or similar business combination, with the
requirements set forth in Sections 1.2(e) (time of payment) and 1.3
(closing).
6.3 Counterparts; Electronic
Delivery. This Agreement and each other document executed in
connection with the transactions contemplated hereby, and the consummation
thereof, may be executed in one or more counterparts, all of which shall be
considered one and the same document and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party, it being understood that all parties need not sign the same
counterpart. Delivery by facsimile or electronic transmission to
counsel for the other party of a counterpart executed by a party shall be deemed
to meet the requirements of the previous sentence.
14
6.4 Entire Agreement; Third
Party Beneficiaries. This Agreement and the documents and
instruments and other agreements among the parties hereto as contemplated by or
referred to herein, including the Exhibits and Schedules hereto (a) constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof (except to the
extent expressly stated to survive the execution of this Agreement and the
consummation of the transactions contemplated hereby); and (b) are not intended
to confer upon any other person any rights or remedies hereunder (except as
specifically provided in this Agreement).
6.5 Severability. In
the event that any provision of this Agreement, or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
6.6 Other Remedies; Specific
Performance. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall
be entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in
equity.
6.7 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware regardless of the law that
might otherwise govern under applicable principles of conflicts of law
thereof.
6.8 Jurisdiction. Each
party hereby consents to the exclusive jurisdiction of the courts located in the
State of Delaware with respect to any action or legal proceeding that may arise
out of this Agreement or the interpretation thereof and agrees that service of
process in any such action or proceeding may be made by registered
mail.
6.9 Rules of
Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
6.10 Assignment. No
party may assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the other
parties. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
15
6.11 Amendment. This
Agreement may be amended by the parties hereto at any time by execution of an
instrument in writing signed by both parties.
6.12 Extension;
Waiver. At any time prior to the Closing, any party hereto
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. Delay in exercising any right under
this Agreement shall not constitute a waiver of such right.
6.13 Currency. All references to
currency amounts in this Agreement shall mean United States
dollars.
6.14 Language. The
SPA shall be drafted in English and Korean. In the event of any discrepancy
between the two versions, the English version shall take
precedence.
6.15 Miscellaneous. With
respect to any issues concerning permits or licenses issued by the Korean or the
U.S. government, the parties agree to render cooperation in dealing with such
matters.
6.16 Prerequisites for the
Closing. Each of the following preconditions must be met or
satisfied in full on or prior to the Closing Date:
(a) The
stockholders of the Parent shall have duly approved the Company Common Stock
Purchase and all other matters referenced in Section 5.1(a) above at the Special
Meeting, and Parent shall have effectuated the issuance of the Asiana Shares
pursuant to Section 5.1(a) hereof.
(b) Holders
of thirty percent (30%) or more of the shares of Parent Common Stock issued in
Parent’s initial public offering of securities and outstanding immediately
before the Closing shall not have exercised their rights to convert their shares
into a pro rata share of the Trust Fund in accordance with Parent’s Charter
Documents.
(c) The
warrantholders of the Parent shall have approved the Warrant Redemption at the
Special Meeting, and all the documents, instruments and certificates have been
duly executed so that the Warrant Redemption shall take place as early as
possible.
(d) The
parties shall have obtained the consents, waivers and approvals required to be
obtained by each party in connection with the consummation of the transactions
contemplated hereby, other than consents, waivers and approvals the absence of
which, either alone or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on the party needing such consent, waiver or
approval, including, without limitation, those consents, waivers and approvals
referenced in Section 5.3 above.
(e) Asiana
shall have purchased 129,870 shares of Parent Common Stock pursuant to Section
5.12.
16
(f) The
Parent shall have retired the 2,203,298 Sponsor Shares. Based on the number of
remaining shares, the Parent shall have issued to Asiana 9,702,800 shares of
Parent Common Stock, which, together with the shares of Parent Common Stock
purchased by Asiana pursuant to Section 5.12, will amount to 50% plus 1 share of
all of the outstanding common stock of Parent as of the Closing Date, including,
without limitation, all securities convertible into the common stock of Parent
existing at the time of the Closing Date.
(g) All
the documents, instruments and certificates have been duly executed so that the
Parent Share Redemption pursuant to Section 5.1(a) hereof shall take place on a
date not later than the Closing Date.
(h) Asiana
shall have executed and delivered to Parent a lock-up agreement in the form of
Exhibit A attached hereto.
(i) The
Parent shall have sufficient cash available to pay Asiana the Cash Consideration
on the Closing Date.
6.17 Termination. This
Agreement may be terminated at any time prior to the Closing:
(a)
by mutual written agreement of Parent, Asiana and the
Company at any time;
(b)
by the Parent or the Company (or Asiana), upon a material breach of
any covenant or agreement on the part of the other party set forth in this
Agreement, provided, that if such breach is curable by the breaching party prior
to the Closing Date, then the non-breaching party may not terminate this
Agreement for thirty (30) days after delivery of written notice of such breach,
provided the breaching party continues to exercise commercially reasonable
efforts to cure such breach (it being understood that the breaching party
may not terminate this Agreement pursuant to this Section 6.17(b) if it shall
have materially breached this Agreement); or
(c)
by Parent if: (i) either Asiana or the Company shall have materially breached
its representations in Sections 2.2 and 2.4; or (ii) if Parent’s “due diligence”
investigation reveals that, based on the reasonable opinion of its outside
advisors, information relating to the Company, which has been provided by the
Company or Asiana to the Parent in writing during the negotiation of this
Agreement was materially inaccurate or incomplete, making the Company Common
Stock Purchase not appropriate on the terms set forth herein. For the
avoidance of doubt, in such termination as set forth in this Section 6.17(c),
Parent shall give a reasonable prior written notice thereof to Asiana and the
Company.
(d)
by either Asiana or the Company or both if Parent shall have materially breached
its representations in Section 2.3 or if Asiana or the Company’s “due diligence”
investigation reveals that, based on the reasonable opinion of its outside
advisors, information relating to Parent, which has been provided by Parent to
the Company or Asiana was materially inaccurate or incomplete, making the
transactions contemplated under this Agreement not appropriate on the terms set
forth herein.
17
(e)
automatically, without the need of any
notice by either party, if the Closing has not taken place by December 6,
2009.
6.18 Schedules. The
information furnished in the Schedules is arranged in sections corresponding to
the Sections of this Agreement, and the disclosures in any section of the
Schedules shall qualify (a) the corresponding Section of this Agreement and (b)
other Sections of this Agreement to the extent (notwithstanding the absence of a
specific cross-reference), that it is clear from a reasonable reading of the
Schedules and such other Sections of this Agreement that such disclosure is also
applicable to such other Sections of this Agreement. The Schedules
and the information and disclosures contained in such Schedules are intended
only to qualify and limit the representations, warranties and covenants of the
parties contained in this Agreement and shall not be deemed to expand in any way
the scope of any such representation, warranty or covenant (except as explicitly
set forth therein). The inclusion of any information in the Schedules
shall not be deemed to be an admission or acknowledgment that such information
is material or outside the ordinary course of business. The inclusion
of any fact or information in a Schedule is not intended to be construed as an
admission or concession as to the legal effect of any such fact or information
in any proceeding between any party and any Person who is not a
party.
6.19 Non-Disclosure and
Confidentiality. Each party hereto shall keep secret and
confidential any and all documents and information, including this Agreement and
the terms and conditions hereof, provided by any other party in connection with
the execution or performance of this Agreement (the “Confidential
Information”) and shall neither disclose to a third party nor use the
Confidential Information other than for the purpose of achieving the objectives
of this Agreement.
If a
shareholder, officer, employee, worker, agent or trading counterparty of any
party has disclosed any of the Confidential Information to a third party, that
party shall be liable hereunder for the disclosure as if that party had
committed the disclosure.
The
obligation of confidentiality contained herein shall not apply in case the data
and information is: (i) generally known to the public; (ii) known through a
third party other than that party and the receiving party is not aware of any
confidentiality obligations binding on such third party; or (iii) required to be
disclosed by applicable laws and regulations.
No party
may use or provide to its shareholders, officers, employees, workers, agents or
other trading counterparties any information related to this Agreement unless
such use or provision is required for achieving the objective of this Agreement,
or for compliance with law.
6.20 Registration Rights
Agreement. At any time after the Closing Date, at the request
of Asiana, (i) the Parent shall ensure Asiana to become a party to the
Registration Rights Agreement between the Parent and its initial stockholders
dated December 6, 2007, a copy of the form of which is attached hereto as
Exhibit B, or (ii) the Parent and Asiana shall enter into a registration rights
agreement (in a form substantially similar to Exhibit B hereto) whereby Parent,
at its cost and expense, shall allow all or part of the shares of Parent Common
Stock owned by Asiana to be duly registered under the applicable securities laws
of the U.S. and publicly traded. Such registration rights shall not take effect
prior to the expiration of the Restricted Period as defined in the Lock-Up
Agreement attached as Exhibit A hereto.
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
TREMISIS
ENERGY ACQUISITION
CORPORATION
II
|
|
By:
|
/s/
Sang-Xxxx Xxx
|
Name:
|
Sang-Xxxx
Xxx
|
Title:
|
CEO
|
ASIANA
IDT
|
|
By:
|
/s/
Xxxxx-xxx Xxx
|
Name:
|
Xxxxx-xxx
Xxx
|
Title:
|
President
& CEO
|
ASIANA
AIRLINES, INC.
|
|
By:
|
/s/
Young-doo Yoon
|
Name:
|
Young-doo
Yoon
|
Title:
|
President
&
COO
|
19
Exhibit
A
LOCK-UP
AGREEMENT
Closing Date:
Tremisis
Energy Acquisition Corporation II
Address: 000-0
Xxxxx-Xxxx
XxxxXxxxx Xxxxxxxx, 0xx
Xxxxx
Xxxxxxx-Xx, Xxxxx Xxxxx
135-270
Ladies
and Gentlemen:
In
connection with the Securities Purchase Agreement dated July 30, 2009 by and
among Tremisis Energy Acquisition Corporation II (“Parent”), Asiana IDT Inc. and
Asiana Airlines, Inc. (the “Securities Purchase Agreement”), to induce Parent to
consummate the transactions contemplated by the Securities Purchase Agreement,
the undersigned agrees to, neither directly nor indirectly, during the
“Restricted Period” (as hereinafter defined):
|
(1)
|
sell
or offer or contract to sell or offer, grant any option or warrant for the
sale of, assign, transfer, pledge, hypothecate, or otherwise encumber or
dispose of (all being referred to as a “Transfer”) any legal or beneficial
interest in ”Asiana Shares,” as referenced in Art. 1.2(a)(ii) of the
Securities Purchase Agreement herein, issued to the undersigned in
connection with the transactions contemplated by the Securities Purchase
Agreement or otherwise acquired by the undersigned on or prior to the
Closing Date(the “Restricted Securities”),
or
|
|
(2)
|
enter
into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of any of the Restricted Securities, whether such swap
transaction is to be settled by delivery of any Restricted Securities or
other securities of any person, in cash or
otherwise,
|
As used
herein, “Restricted Period” means the period commencing on the Closing Date (as
defined in the Securities Purchase Agreement herein) and ending on the day
preceding the day that is one year after the Closing Date.
Any of
the Restricted Securities subject to this Lock-Up Agreement may, even prior to
the end of the Restricted Period, be released in whole or part from the terms
hereof only upon the approval of the Board of Directors of Parent and a majority
of the persons serving as directors of Parent immediately prior to the Closing
Date.
The
undersigned hereby authorizes Parent’s transfer agent to apply to any
certificates representing Restricted Securities issued to the undersigned the
appropriate legend to reflect the existence and general terms of this Lock-up
Agreement; provided, that, the undersigned shall be entitled to remove such
legend at the expiration or early termination of the Restricted
Period.
20
This
Lock-up Agreement will be legally binding on the undersigned and on the
undersigned’s successors and permitted assigns, and is executed as an instrument
governed by the law of New York.
Very
truly yours,
|
ASIANA
AIRLINES, INC.
|
|
By:
Young-doo Yoon
|
Title: President
& COO
|
21
Exhibit
B
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is entered into as of the __ day of ________, 2007, by and among Tremisis Energy
Acquisition Corporation II, a Delaware corporation (the “Company”)
and the undersigned parties listed under Investor on the signature page hereto
(each, an “Investor”
and collectively, the “Investors”).
WHEREAS,
the Investors currently hold all of the issued and outstanding securities of the
Company;
WHEREAS,
the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of shares of Common
Stock held by them;
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.
DEFINITIONS. The following capitalized terms used
herein have the following meanings:
“Agreement”
means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“Commission”
means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common
Stock” means the common stock, par value $0.0001 per share, of the
Company.
“Company”
is defined in the preamble to this Agreement.
“Demand
Registration” is defined in Section 2.1.1.
“Demanding
Holder” is defined in Section 2.1.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall
be in effect at the time.
“Form
S-3” is defined in Section 2.3.
“Indemnified
Party” is defined in Section 4.3.
“Indemnifying
Party” is defined in Section 4.3.
“Insider
Warrants” means the Warrants being purchased privately by the Company’s
officers and directors simultaneously with the consummation of the Company’s
initial public offering.
22
“Investor”
is defined in the preamble to this Agreement.
“Investor
Indemnified Party” is defined in Section 4.1.
“Maximum
Number of Shares” is defined in Section 2.1.4.
“Notices”
is defined in Section 6.3.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Register,”
“Registered”
and “Registration”
mean a registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities” mean (i) all of the shares of Common Stock beneficially owned
or held by Investors prior to the consummation of the Company’s initial public
offering and (ii) all of the Insider Warrants (and underlying shares of Common
Stock). Registrable Securities include any warrants, shares of capital stock or
other securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of such shares of Common Stock.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding, or (d)
the Securities and Exchange Commission makes a definitive determination to the
Company that the Registrable Securities are saleable under Rule
144(k).
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of Common Stock (other
than a registration statement on Form S-4 or Form S-8, or their successors, or
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another entity).
“Release
Date” means the date on which shares of Common Stock are disbursed from
escrow pursuant to Section 3 of that certain Stock Escrow Agreement dated as of
________, 2007 by and among the parties hereto and Continental Stock Transfer
& Trust Company.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
23
“Underwriter”
means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making
activities.
2.
REGISTRATION
RIGHTS.
2.1 Demand
Registration.
2.1.1.
Request for
Registration. At any time and from time to time on or after the date that
is (i) after the Company consummates a Business Combination (as defined in the
Company’s Registration Statement with respect to its initial public offering)
with respect to the Insider Warrants (or underlying shares of Common Stock) or
(ii) three months prior to the Release Date with respect to all Registrable
Securities (to the extent not previously registered by the Company pursuant to
the preceding subclause (i)), the holders of a majority-in-interest of such
Insider Warrants (or underlying shares of Common Stock) or other Registrable
Securities, as the case may be, held by the Investors or the transferees of the
Investors, may make a written demand for registration under the Securities Act
of all or part of their Insider Warrants (or underlying shares of Common Stock)
or other Registrable Securities, as the case may be (a “Demand
Registration”). Any demand for a Demand Registration shall specify the
number of shares of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand, and each holder of Registrable Securities
who wishes to include all or a portion of such holder’s Registrable Securities
in the Demand Registration (each such holder including shares of Registrable
Securities in such registration, a “Demanding
Holder”) shall so notify the Company within fifteen (15) days after the
receipt by the holder of the notice from the Company. Upon any such request, the
Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4 and the provisos
set forth in Section 3.1.1. The Company shall not be obligated to effect more
than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in
respect of all Registrable Securities.
2.1.2.
Effective
Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such
Demand Registration has been declared effective and the Company has complied
with all of its obligations under this Agreement with respect thereto; provided,
however, that if, after such Registration Statement has been declared effective,
the offering of Registrable Securities pursuant to a Demand Registration is
interfered with by any stop order or injunction of the Commission or any other
governmental agency or court, the Registration Statement with respect to such
Demand Registration will be deemed not to have been declared effective, unless
and until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter
elect to continue the offering; provided, further, that the Company shall not be
obligated to file a second Registration Statement until a Registration Statement
that has been filed is counted as a Demand Registration or is
terminated.
2.1.3.
Underwritten
Offering. If a majority-in-interest of the Demanding Holders so elect and
such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten offering. In such
event, the right of any holder to include its Registrable Securities in such
registration shall be conditioned upon such holder’s participation in such
underwriting and the inclusion of such holder’s Registrable Securities in the
underwriting to the extent provided herein. All Demanding Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the Underwriter or Underwriters
selected for such underwriting by a majority-in-interest of the holders
initiating the Demand Registration.
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2.1.4.
Reduction of
Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the
Demanding Holders in writing that the dollar amount or number of shares of
Registrable Securities which the Demanding Holders desire to sell, taken
together with all other shares of Common Stock or other securities which the
Company desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other stockholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such
offering (such maximum dollar amount or maximum number of shares, as applicable,
the “Maximum
Number of Shares”), then the Company shall include in such registration:
(i) first, the Registrable Securities as to which Demand Registration has been
requested by the Demanding Holders (pro rata in accordance with the number of
shares that each such Demanding Holder has requested be included in such
registration, regardless of the number of shares held by each such Demanding
Holder (such proportion is referred to herein as "Pro
Rata")) that can be sold without exceeding the Maximum Number of Shares;
(ii) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; and (iii) third, to the extent that the Maximum
Number of Shares have not been reached under the foregoing clauses (i) and (ii),
the shares of Common Stock or other securities for the account of other persons
that the Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the
Maximum Number of Shares.
2.1.5.
Withdrawal. If
a majority-in-interest of the Demanding Holders disapprove of the terms of any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest of the
Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration
provided for in Section 2.1.
2.2 Piggy-Back
Registration.
2.2.1.
Piggy-Back
Rights. If at any time on or after the date the Company consummates a
Business Combination the Company proposes to file a Registration Statement under
the Securities Act with respect to an offering of equity securities, or
securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities, by the Company for its own account or for stockholders
of the Company for their account (or by the Company and by stockholders of the
Company including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company’s existing stockholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan, then the Company shall (x) give written notice of such
proposed filing to the holders of Registrable Securities as soon as practicable
but in no event less than ten (10) days before the anticipated filing date,
which notice shall describe the amount and type of securities to be included in
such offering, the intended method(s) of distribution, and the name of the
proposed managing Underwriter or Underwriters, if any, of the offering, and (y)
offer to the holders of Registrable Securities in such notice the opportunity to
register the sale of such number of shares of Registrable Securities as such
holders may request in writing within five (5) days following receipt of such
notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use its best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof.
All holders of Registrable Securities proposing to distribute their securities
through a Piggy-Back Registration that involves an Underwriter or Underwriters
shall enter into an underwriting agreement in customary form with the
Underwriter or Underwriters selected for such Piggy-Back
Registration.
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2.2.2.
Reduction of
Offering. If the managing Underwriter or Underwriters for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the
holders of Registrable Securities in writing that the dollar amount or number of
shares of Common Stock which the Company desires to sell, taken together with
shares of Common Stock, if any, as to which registration has been demanded
pursuant to written contractual arrangements with persons other than the holders
of Registrable Securities hereunder, the Registrable Securities as to which
registration has been requested under this Section 2.2, and the shares of Common
Stock, if any, as to which registration has been requested pursuant to the
written contractual piggy-back registration rights of other stockholders of the
Company, exceeds the Maximum Number of Shares, then the Company shall include in
any such registration:
a)
If the registration is undertaken for the Company’s account: (A) first,
the shares of Common Stock or other securities that the Company desires to sell
that can be sold without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities, if any,
comprised of Registrable Securities, as to which registration has been requested
pursuant to the applicable written contractual piggy-back registration rights of
such security holders, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; and (C) third, to the extent that the Maximum Number of shares
has not been reached under the foregoing clauses (A) and (B), the shares of
Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual piggy-back
registration rights with such persons and that can be sold without exceeding the
Maximum Number of Shares; and
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b)
If the registration is a “demand”
registration undertaken at the demand of persons other than the holders of
Registrable Securities, (A) first, the shares of Common Stock or other
securities for the account of the demanding persons that can be sold without
exceeding the Maximum Number of Shares; (B) second, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause (A),
the shares of Common Stock or other securities that the Company desires to sell
that can be sold without exceeding the Maximum Number of Shares; (C) third, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A) and (B), collectively the shares of Common Stock or other
securities comprised of Registrable Securities, Pro Rata, as to which
registration has been requested pursuant to the terms hereof, as applicable,
that can be sold without exceeding the Maximum Number of Shares; and (D) fourth,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the shares of Common Stock or other
securities for the account of other persons that the Company is obligated to
register pursuant to written contractual arrangements with such persons, that
can be sold without exceeding the Maximum Number of Shares.
2.2.3.
Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a demand
pursuant to written contractual obligations) may withdraw a registration
statement at any time prior to the effectiveness of the Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the holders of Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.3 Registrations on Form
S-3. The holders of Registrable Securities may at any time and from time
to time, request in writing that the Company register the resale of any or all
of such Registrable Securities on Form S-3 or any similar short-form
registration which may be available at such time (“Form
S-3”); provided, however, that the Company shall not be obligated to
effect such request through an underwritten offering. Upon receipt of such
written request, the Company will promptly give written notice of the proposed
registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such
holder’s or holders’ Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities or other
securities of the Company, if any, of any other holder or holders joining in
such request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration pursuant
to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii)
if the holders of the Registrable Securities, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at any
aggregate price to the public of less than $500,000. Registrations effected
pursuant to this Section 2.3 shall not be counted as Demand Registrations
effected pursuant to Section 2.1.
27
3.
REGISTRATION
PROCEDURES.
3.1 Filings; Information.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2, the Company shall use its best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method(s) of distribution thereof as expeditiously as
practicable, and in connection with any such request:
3.1.1.
Filing Registration
Statement. The Company shall, as expeditiously as possible and in any
event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall use
its best efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3; provided, however, that the
Company shall have the right to defer any Demand Registration for up to thirty
(30) days, and any Piggy-Back Registration for such period as may be applicable
to deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate
signed by the Chairman of the Board or President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be
materially detrimental to the Company and its stockholders for such Registration
Statement to be effected at such time; provided further, however, that the
Company shall not have the right to exercise the right set forth in the
immediately preceding proviso more than once in any 365-day period in respect of
a Demand Registration hereunder.
3.1.2.
Copies. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3.
Amendments and
Supplements. The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act until all Registrable Securities and other
securities covered by such Registration Statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred
eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been
withdrawn.
28
3.1.4.
Notification.
After the filing of a Registration Statement, the Company shall promptly, and in
no event more than two (2) business days after such filing, notify the holders
of Registrable Securities included in such Registration Statement of such
filing, and shall further notify such holders promptly and confirm such advice
in writing in all events within two (2) business days of the occurrence of any
of the following: (i) when such Registration Statement becomes effective; (ii)
when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any
stop order (and the Company shall take all actions required to prevent the entry
of such stop order or to remove it if entered); and (iv) any request by the
Commission for any amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such prospectus will not contain an
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 not misleading,
and promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of
filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall reasonably object.
3.1.5.
State Securities Laws
Compliance. The Company shall use its best efforts to (i) register or
qualify the Registrable Securities covered by the Registration Statement under
such securities or “blue sky” laws of such jurisdictions in the United States as
the holders of Registrable Securities included in such Registration Statement
(in light of their intended plan of distribution) may request and (ii) take such
action necessary to cause such Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph or subject
itself to taxation in any such jurisdiction.
3.1.6.
Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations, warranties
and covenants of the Company in any underwriting agreement which are made to or
for the benefit of any Underwriters, to the extent applicable, shall also be
made to and for the benefit of the holders of Registrable Securities included in
such registration statement. No holder of Registrable Securities included in
such registration statement shall be required to make any representations or
warranties in the underwriting agreement except, if applicable, with respect to
such holder’s organization, good standing, authority, title to Registrable
Securities, lack of conflict of such sale with such holder’s material agreements
and organizational documents, and with respect to written information relating
to such holder that such holder has furnished in writing expressly for inclusion
in such Registration Statement.
29
3.1.7.
Cooperation.
The principal executive officer of the Company, the principal financial officer
of the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.8.
Records. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
3.1.9.
Opinions and Comfort
Letters. The Company shall furnish to each holder of Registrable
Securities included in any Registration Statement a signed counterpart,
addressed to such holder, of (i) any opinion of counsel to the Company delivered
to any Underwriter and (ii) any comfort letter from the Company’s independent
public accountants delivered to any Underwriter. In the event no legal opinion
is delivered to any Underwriter, the Company shall furnish to each holder of
Registrable Securities included in such Registration Statement, at any time that
such holder elects to use a prospectus, an opinion of counsel to the Company to
the effect that the Registration Statement containing such prospectus has been
declared effective and that no stop order is in effect.
3.1.10.
Earnings
Statement. The Company shall comply with all applicable rules and
regulations of the Commission and the Securities Act, and make available to its
stockholders, as soon as practicable, an earnings statement covering a period of
twelve (12) months, beginning within three (3) months after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
31
3.1.11.
Listing. The
Company shall use its best efforts to cause all Registrable Securities included
in any registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then
listed or designated or, if no such similar securities are then listed or
designated, in a manner satisfactory to the holders of a majority of the
Registrable Securities included in such registration.
3.2 Obligation to Suspend
Distribution. Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1.4(iv), or, in the
case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon
any suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company’s Board of Directors, of the ability of all
“insiders” covered by such program to transact in the Company’s securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of “insiders” to transact in the
Company’s securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3 Registration
Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back
Registration pursuant to Section 2.2, and any registration on Form S-3 effected
pursuant to Section 2.3, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees; (ii) fees and expenses of compliance with securities or “blue
sky” laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities); (iii) printing expenses; (iv)
the Company’s internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees
and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses or costs associated with the delivery of any opinions or comfort
letters requested pursuant to Section 3.1.9); (viii) the fees and expenses of
any special experts retained by the Company in connection with such registration
and (ix) the fees and expenses of one legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an underwritten
offering, all selling stockholders and the Company shall bear the expenses of
the underwriter pro rata in proportion to the respective amount of shares each
is selling in such offering.
3.4 Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
32
4. INDEMNIFICATION
AND CONTRIBUTION.
4.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless each Investor
and each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and
agents, and each person, if any, who controls an Investor and each other holder
of Registrable Securities (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) (each, an “Investor
Indemnified Party”), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material
fact contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Investor
Indemnified Party for any legal and any other expenses reasonably incurred by
such Investor Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or allegedly untrue statement or omission or alleged
omission made in such Registration Statement, preliminary prospectus, final
prospectus, or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by such selling holder expressly for use therein. The Company also
shall indemnify any Underwriter of the Registrable Securities, their officers,
affiliates, directors, partners, members and agents and each person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2 Indemnification by Holders
of Registrable Securities. Each selling holder of Registrable Securities
will, in the event that any registration is being effected under the Securities
Act pursuant to this Agreement of any Registrable Securities held by such
selling holder, indemnify and hold harmless the Company, each of its directors
and officers and each underwriter (if any), and each other selling holder and
each other person, if any, who controls another selling holder or such
underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder’s indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any net
proceeds actually received by such selling holder.
33
4.3 Conduct of Indemnification
Proceedings. Promptly after receipt by any person of any notice of any
loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified
Party”) shall, if a claim in respect thereof is to be made against any
other person for indemnification hereunder, notify such other person (the “Indemnifying
Party”) in writing of the loss, claim, judgment, damage, liability or
action; provided, however, that the failure by the Indemnified Party to notify
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which the Indemnifying Party may have to such Indemnified Party
hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking indemnification
with respect to any claim or action brought against the Indemnified Party, then
the Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume control of the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if, based upon the written opinion of counsel of such
Indemnified Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, consent to entry of judgment or effect any settlement of any claim or
pending or threatened proceeding in respect of which the Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such judgment or settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such claim
or proceeding.
4.4 Contribution.
4.4.1. If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable considerations. The relative
fault of any Indemnified Party and any Indemnifying Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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4.4.2.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section 4.4.1. The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
5. UNDERWRITING
AND DISTRIBUTION.
5.1 Rule 144. The Company
covenants that it shall file any reports required to be filed by it under the
Securities Act and the Exchange Act and shall take such further action as the
holders of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holders to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rules may be
amended from time to time, or any similar Rule or regulation hereafter adopted
by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration
Rights. The Company represents and warrants that no person, other than a
holder of the Registrable Securities, has any right to require the Company to
register any shares of the Company’s capital stock for sale or to include shares
of the Company’s capital stock in any registration filed by the Company for the
sale of shares of capital stock for its own account or for the account of any
other person.
6.2 Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and obligations of
the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders
of Registrable Securities hereunder may be freely assigned or delegated by such
holder of Registrable Securities in conjunction with and to the extent of any
transfer of Registrable Securities by any such holder. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and the permitted assigns of the Investor or holder of
Registrable Securities or of any assignee of the Investor or holder of
Registrable Securities. This Agreement is not intended to confer any rights or
benefits on any persons that are not party hereto other than as expressly set
forth in Article 4 and this Section 6.2.
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6.3 Notices. All notices,
demands, requests, consents, approvals or other communications (collectively,
“Notices”)
required or permitted to be given hereunder or which are given with respect to
this Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile; provided, that
if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business day.
Notice otherwise sent as provided herein shall be deemed given on the next
business day following timely delivery of such notice to a reputable air courier
service with an order for next-day delivery.
To
the Company:
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
Attn:
Chief Executive Officer
with
a copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx XX 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
To
an Investor, to:
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Xxxxxxxx
X. Xxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
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Xxxxxx
X. Xxxxxx
Xxxxxx
X. Xxxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
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Xxx
Xxxxxx
Xxx
Xxxxxx
c/o
Saybrook Capital, LLC
000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
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Xxxxxxx
X. Xxxxxx
0000
Xxxx Xxxxxx Xxxxx
Xxxxx,
Xxxxxxxxxx 00000
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Xxxxxxx
X. Xxxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
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6.4 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible that is
valid and enforceable.
6.5 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
6.6 Entire Agreement.
This Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.7 Modifications and
Amendments. No amendment, modification or termination of this Agreement
shall be binding upon any party unless executed in writing by such party.
Notwithstanding the foregoing, any and all parties must obtain the written
consent of Citigroup Global Markets Inc. to amend or modify this
Agreement.
6.8 Titles and Headings.
Titles and headings of sections of this Agreement are for convenience only and
shall not affect the construction of any provision of this
Agreement.
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6.9 Waivers and
Extensions. Any party to this Agreement may waive any right, breach or
default which such party has the right to waive, provided that such waiver will
not be effective against the waiving party unless it is in writing, is signed by
such party, and specifically refers to this Agreement. Waivers may be made in
advance or after the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any breach of any
agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10
Remedies
Cumulative. In the event that the Company fails to observe or perform any
covenant or agreement to be observed or performed under this Agreement, the
Investor or any other holder of Registrable Securities may proceed to protect
and enforce its rights by suit in equity or action at law, whether for specific
performance of any term contained in this Agreement or for an injunction against
the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any
one or more of such actions, without being required to post a bond. None of the
rights, powers or remedies conferred under this Agreement shall be mutually
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred by this
Agreement or now or hereafter available at law, in equity, by statute or
otherwise.
6.11
Governing Law.
This Agreement shall be governed by, interpreted under, and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed within the State of New York, without giving
effect to any choice-of-law provisions thereof that would compel the application
of the substantive laws of any other jurisdiction.
6.12
Waiver of Trial by
Jury. Each party hereby irrevocably and unconditionally waives the right
to a trial by jury in any action, suit, counterclaim or other proceeding
(whether based on contract, tort or otherwise) arising out of, connected with or
relating to this Agreement, the transactions contemplated hereby, or the actions
of the Investor in the negotiation, administration, performance or enforcement
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
38
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to
be executed and delivered by their duly authorized representatives as of the
date first written above.
TREMISIS
ENERGY ACQUISITION
CORPORATION
II
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By:
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Name:
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Title:
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INITIAL
STOCKHOLDERS:
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Xxxxxxxx
X. Xxxxx
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Xxxxxx
X. Xxxxxx
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Xxx
Xxxxxx
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Xxxxxxx
X. Xxxxxx
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Xxxxxxx
X.
Xxxxxx
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