REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made
and entered into as of January 20, 2010 by and among Asia Special Situation
Acquisition Corp., a Cayman Islands exempt company (“ASSAC”) (to be
renamed GEROVA Financial Group Ltd.), Stillwater Capital Partners, LLC, a
Delaware limited liability company (“SCP LLC”), Stillwater
Capital Partners, Inc., a New York corporation (“SCP Inc.”, and
collectively with SCP LLC, “Stillwater”),
Wimbledon Financing Master Fund Ltd., a Cayman Islands exempt company (“Wimbledon”), and
Wimbledon Real Estate Financing Master Fund Ltd., a Cayman Islands exempt
company (“Wimbledon
Real Estate”).
The
parties hereto hereby agree as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Acquisition Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Acquisition
Agreement” means, as applicable to a particular ASSAC Shareholder, the
(i) Agreement and Plan of Merger, dated as of December 31, 2009, by and among
ASSAC, Stillwater AB Fund Merger Co. LP, Stillwater Asset Backed Fund, LP,
Stillwater Asset Backed Fund II, LP, SCP LLC, and SCP Inc., (ii) Agreement and
Plan of Merger, dated as of December 31, 2009, by and among ASSAC, Stillwater
Real Estate Partners Merger Co. LP, Stillwater Real Estate Partners LP, SCP LLC,
and SCP Inc., (iii) Agreement and Plan of Merger, dated as of December 31, 2009,
by and among ASSAC, Stillwater WPB Fund Merger Co. LP, Stillwater WPB Venture
Partners I LP, Stillwater WPB Venture Partners II LP, SCP LLC, and SCP Inc.,
(iv) Agreement and Plan of Merger, dated as of December 31, 2009, by and among
ASSAC, Stillwater MNF Fund Merger Co. LP, Stillwater Market Neutral Fund LP,
Stillwater Market Neutral Fund II LP, Stillwater Matrix Fund LP, SCP LLC, and
SCP Inc., (v) Asset Purchase Agreement, dated as of December 31, 2009, by and
among ASSAC, Gerova AB Holdings Ltd., Stillwater Asset Backed Offshore Fund
Ltd., Stillwater Asset Backed Fund SPV, SABF II Onshore SPV, and SCP Inc., (vi)
Asset Purchase Agreement, dated as of December 31, 2009, by and among ASSAC,
Gerova MN Holdings Ltd., Stillwater Market Neutral Fund Ltd., and SCP Inc.,
(vii) Asset Purchase Agreement, dated as of December 31, 2009, by and among
ASSAC, WFM Holdings Ltd., Amalphis Group Inc., Allied Provident Insurance
Company Ltd., Wimbledon Financing Master Fund Ltd., and Weston
Capital Asset Management, LLC, and (viii) Asset Purchase Agreement, dated as of
December 31, 2009, by and among ASSAC, WFM Holdings Ltd., Amalphis Group Inc.,
Allied Provident Insurance Company Ltd., Wimbledon Real Estate
Financing Master Fund Ltd., and Weston Capital Asset Management,
LLC.
“Advice” shall have
the meaning set forth in Section 7(c).
“ASSAC Shareholders”
means each of SCP LLC (on behalf of itself and any Proposed Transferee), SCP
Inc. (on behalf of itself and any Proposed Transferee), Stillwater Asset Backed
Offshore Fund Ltd., Stillwater Asset Backed Fund SPV, SABF II Onshore SPV,
Stillwater Market Neutral Fund Ltd., Wimbledon, Wimbledon Real Estate, and any
Proposed Transferee who receives Preferred Shares.
“Effectiveness Date”
means, with respect to the initial Registration Statement required to be filed
hereunder, July 31, 2010.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall have the
meaning set forth in Section 2(b).
“Event Date” shall
have the meaning set forth in Section 2(b).
“Exchange Act” means
the Securities and Exchange Act of 1934, as amended.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Losses” shall have
the meaning set forth in Section 5(a).
“Ordinary Shares”
means the ASSAC ordinary shares, par value of $0.0001 per share.
“Partial Liquidated
Damages” shall have the meaning set forth in Section 2(b).
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Preferred Shares”
means the ASSAC Series A Fixed Price Mandatory Preferred Shares, par value of
$0.0001 per share, which are issuable in accordance with the provisions of the
Acquisition Agreements and which contain the provisions set forth in the Second
Amended and Restated Memorandum and Articles of Association of
ASSAC.
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Public Offering”
means a firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act and covering the Ordinary
Shares.
“Registrable
Securities” means all of the Ordinary Shares issued or issuable to the
ASSAC Shareholders as of the date hereof (in the case of Stillwater) and upon
conversion of the Preferred Shares as well as any Ordinary Shares issuable
pursuant to the provisions of Section 2(b).
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“Registration
Statement” means the registration statements required to be filed
hereunder and any additional registration statements contemplated by Section
3(c), including (in each case) the Prospectus, amendments and supplements to
such registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
“Rule 415” means Rule
415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same purpose and effect as such
Rule.
“Rule 424” means Rule
424 promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same purpose and effect as such
Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Selling Shareholder
Questionnaire” shall have the meaning set forth in Section
3(b).
“Trading Day” shall
mean any day other than a Saturday, Sunday or a day on which banks in New York
City or the New York Stock Exchange are authorized or obligated by applicable
law or executive order to close or are otherwise generally closed.
2. Registration
Requirements.
(a) ASSAC
shall prepare and file with the United States Securities and Exchange Commission
(the “SEC”) a
“Shelf” Registration Statement covering the resale of the Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule 415 as
promptly as possible after the date hereof but in any event within ninety (90)
days following the date of this Agreement. The Registration Statement
shall be on Form S-3 or F-3 (or such other form as may be appropriate in
accordance herewith and with the Securities Act) and (i) shall comply in all
material respects with the requirements of the applicable form and include (or
incorporate by reference herein) all financial statements required by the SEC to
be filed herewith and (ii) shall contain (unless otherwise directed by the ASSAC
Shareholders) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to
the terms of this Agreement, ASSAC shall use its best efforts to (i) cause a
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event prior to the
Effectiveness Date, and (ii) to keep such Registration Statement continuously
effective under the Securities Act until all Registrable Securities covered by
such Registration Statement have been sold (the “Effectiveness
Period”). ASSAC shall telephonically confirm with the SEC
effectiveness of a Registration Statement as of 4:00 pm Eastern time on a
Trading Day prior to the Effectiveness Date. ASSAC shall immediately
notify the ASSAC Shareholders via an Interim Report on Form 6-K and facsimile of
the effectiveness of a Registration Statement on the same Trading Day that ASSAC
telephonically confirms effectiveness with the SEC, which shall be the date
requested for effectiveness of a Registration Statement. ASSAC shall
file, by 9:30 a.m. Eastern time on the second Trading Day following the date on
which the initial Registration Statement filed by ASSAC pursuant to this
Agreement is first declared effective by the SEC, a final Prospectus with the
SEC as required by Rule 424. Failure to so notify the ASSAC
Shareholders within two Trading Days of such notification of effectiveness or
failure to file a final Prospectus as aforesaid shall be deemed an Event under
Section 2(b).
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(b) If
(i) ASSAC files a Registration Statement without affording the ASSAC
Shareholders the opportunity to review and comment on the same as required by
Section 3(a) herein; (ii) a Registration Statement filed or required to be filed
hereunder is not declared effective by the SEC by the Effectiveness Date, or
(iii) after the Effectiveness Date, a Registration Statement ceases for any
reason to remain continuously effective as to all Registrable Securities for
which it is required to be effective, or the ASSAC Shareholders are otherwise
not permitted to utilize the Prospectus therein to resell such Registrable
Securities for more than 45 consecutive calendar days or more than an aggregate
of 90 calendar days during any 12-month period (which need not be consecutive
calendar days) (any such failure or breach being referred to as an “Event”, and for
purposes of clause (i) or (ii) the date on which such Event occurs, or for
purposes of clause (iii) the date on which such 45 or 90 calendar day period, as
applicable, is exceeded being referred to as the “Event Date”), then in
addition to any other rights the ASSAC Shareholders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, ASSAC shall pay to the ASSAC Shareholders
partial liquidated damages (the “Partial Liquidated
Damages”) by delivering to the ASSAC Shareholders a number of Ordinary
Shares equal to 1.0% of the quotient obtained by dividing (x) the number of
Registrable Securities that are not then registered for resale pursuant to an
effective Registration Statement by (y) the greater of the closing price of
ASSAC’s Ordinary Shares as traded on the NYSE Amex (or such other exchange or
interdealer quotation system the Ordinary Shares are then primarily traded or
quoted, as the case may be) on the date of such payment or $7.50 (or such other
Conversion Price then in effect). The parties agree that the maximum
aggregate liquidated damages payable to the ASSAC Shareholders under this
Agreement shall be 10.0% of the Estimated NAV (as defined in the applicable
Acquisition Agreement). The Partial Liquidated Damages pursuant to
the terms hereof shall apply on a pro rata basis for any portion of a month
prior to the cure of an Event.
3. Registration
Procedures.
In
connection with ASSAC’s obligations with respect to the registration of the
Registrable Securities hereunder, ASSAC shall:
(a) Not
less than five Trading Days prior to the filing of the Registration Statement
and the filing of any related Prospectus or any amendment or supplement thereto
(including any document that would be incorporated or deemed to be incorporated
therein by reference), (i) furnish to the ASSAC Shareholders copies of all such
documents proposed to be filed, which documents will be subject to the review of
the ASSAC Shareholders, (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of counsel to the ASSAC Shareholders to
conduct a reasonable investigation within the meaning of the Securities Act and
(iii) duly consider and include (if not contrary to applicable law) in the
Registration Statement any comments made by any ASSAC Shareholders and received
by ASSAC not later than four (4) Trading Days after such ASSAC Shareholders has
been furnished with the aforesaid documents.
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(b) Not
file a Registration Statement or any such Prospectus or any amendments or
supplements thereto to which any of the ASSAC Shareholders shall reasonably
object, provided that, ASSAC is notified of such objection in writing no later
than four (4) Trading Days after such objecting ASSAC Shareholders have been
furnished copies of the Registration Statement or any related Prospectus or
amendment or supplement thereto. The ASSAC Shareholders agree to each
furnish to ASSAC a completed Questionnaire in the form attached to this
Agreement as Annex B (a
“Selling Shareholder
Questionnaire”) not less than two Trading Days prior to the Filing Date
or by the end of the fourth Trading Day following the date on which the ASSAC
Shareholders receive draft materials in accordance with this
Section.
(c) (i)
prepare and file with the SEC such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and to prepare and file with the SEC such additional Registration
Statements in order to register for resale under the Securities Act all of the
Registrable Securities; (ii) amend or supplement the related Prospectus by any
required Prospectus supplement (subject to the terms of this Agreement), and as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably possible to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and as promptly as
reasonably possible and provide the ASSAC Shareholders true and complete copies
of all correspondence from and to the SEC relating to a Registration; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in accordance
(subject to the terms of this Agreement) with the intended methods of
disposition by the ASSAC Shareholders thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented.
(d) Notify
the ASSAC Shareholders (which notice shall, pursuant to clauses (iii) through
(vi) of this Section 3(d), shall also be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made) as
promptly as possible (and, in the case of (i)(A) below, not less than one
Trading Day prior to such filing) and (if requested by any such Person) confirm
such notice in writing no later than one Trading Day following the day: (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment to a
Registration Statement is proposed to be filed; (B) when the SEC notifies ASSAC
whether there will be a “review” of such Registration Statement and whenever the
SEC comments in writing on such Registration Statement; and (C) with respect to
a Registration Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information; (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement covering any or all of the
Registrable Securities or the initiation of any proceedings for that purpose;
(iv) of the receipt by ASSAC of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose; (v) of the occurrence of any event or passage of
time that makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus, as
the case may be, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; and (vi) the occurrence or existence of any pending
corporate development with respect to ASSAC (including its subsidiaries) that
ASSAC believes may be material and that, in the determination of ASSAC, would
make it materially detrimental to ASSAC to maintain the Registration Statement
or Prospectus at such time; provided that in no
event shall this right be exercised to suspend the Registration Statement or
Prospectus beyond the period during which (in the good faith determination of
ASSAC’s Board of Directors) the failure to require such suspension would be
materially detrimental to ASSAC, and provided,
further that any and all of such information shall remain confidential to
the ASSAC Shareholders until such information otherwise becomes public, unless
disclosure by the ASSAC Shareholders is required by law; provided, further,
that notwithstanding the ASSAC Shareholders’ agreement to keep such information
confidential, the ASSAC Shareholders makes no acknowledgement that any such
information is material or non-public information; or (vii) if at any time any
of the representations and warranties of ASSAC contained in any agreement
contemplated hereby ceases to be true and correct in all material
respects;
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(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of (i) any order suspending the effectiveness of a Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(f) If
requested by any of the ASSAC Shareholders, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Registration Statement
such information as ASSAC reasonably agrees should be included therein and (ii)
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after ASSAC has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(g) Furnish
to the ASSAC Shareholders, without charge, at least one conformed copy of such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by any of the ASSAC
Shareholders, and all exhibits to the extent requested by any of the ASSAC
Shareholders (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the SEC.
(h) Promptly
deliver to the ASSAC Shareholders, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably
request.
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(i) Subject
to the terms of this Agreement, ASSAC, on behalf of itself, its successors and
assigns, hereby consents to the use of such Prospectus and each amendment or
supplement thereto by the ASSAC Shareholders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto, except after the giving of any notice pursuant to clauses
(iii) through (vi) of Section 3(d).
(j) Effect
a filing with respect to the public offering contemplated by the Registration
Statement (an “Issuer
Filing”) with the Financial Industry Regulatory Authority (“FINRA”) pursuant to
applicable FINRA Rules (including, without limitation FINRA Rule 5110) within
one Trading Day of the date that the Registration Statement is first filed with
the SEC and pay the filing fee required for such Issuer Filing. ASSAC
shall use its best efforts to pursue the Issuer Filing until FINRA issues a
letter confirming that it does not object to the terms of the offering
contemplated by the Registration Statement.
(k) Prior
to any resale of Registrable Securities by any of the ASSAC Shareholders, use
its best efforts to register or qualify or cooperate with such ASSAC
Shareholders in connection with the registration or qualification (or exemption
from the Registration or qualification) of such Registrable Securities for the
resale by such ASSAC Shareholders under the securities or Blue Sky laws of such
jurisdictions within the United States as such ASSAC Shareholders reasonably
requests in writing, to keep each registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration
Statement; provided, that ASSAC shall not be required to (i) qualify generally
to do business in any jurisdiction where it is not then so qualified, (ii) take
any action that would subject ASSAC to any material tax in any such jurisdiction
where it is not then so subject or (iii) file a general consent to service of
process in any such jurisdiction.
(l) If
requested by any of the ASSAC Shareholders, cooperate with such ASSAC
Shareholders to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be delivered to a transferee pursuant to
a Registration Statement, which certificates shall be free, to the extent
permitted by the Securities Act and the Acquisition Agreement, of all
restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as such ASSAC Shareholders may
request.
(m) Upon
the occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to a Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither a Registration Statement nor such Prospectus will
contain an untrue statement of a material fact or omit to state a 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. If ASSAC notifies the ASSAC Shareholders in accordance
with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been made, then
the ASSAC Shareholders shall suspend use of such Prospectus. ASSAC
will use its best efforts to ensure that the use of the Prospectus may be
resumed as promptly as is practicable thereafter. ASSAC shall be
entitled to exercise its right under this Section 3(m) to suspend the
availability of a Registration Statement and Prospectus, subject to the payment
of Partial Liquidated Damages pursuant to Section 2(b) and the other terms of
this Agreement.
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(n) Comply
with all applicable rules and regulations of the SEC.
(o) Use
its best efforts to cause all Registrable Securities relating to the
Registration Statement, to continued to be quoted or listed on a securities
exchange, quotation system or market on which similar securities issued by ASSAC
are then listed or traded, if any, ASSAC shall pay all fees and expenses in
connection with satisfying its obligations under this Section 3(o).
(p) ASSAC
may require the ASSAC Shareholders to furnish to ASSAC a statement as to the
number of Ordinary Shares beneficially owned by the ASSAC Shareholders and, if
required by the SEC, the persons or entities thereof that have voting and
dispositive control over the shares. During any periods that ASSAC is
unable to meet its obligations hereunder with respect to the registration of the
Registrable Securities solely because any of the ASSAC Shareholders fails to
furnish such information within five Trading Days of ASSAC’s request, any
liquidated damages that are accruing at such time shall be tolled and any Event
that may otherwise occur solely because of such delay shall be suspended until
such information is delivered to ASSAC.
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by ASSAC, except as and to the extent
specified in this Section 4, shall be borne by ASSAC whether or not the
Registration Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any securities exchange or market on which
Registrable Securities are required hereunder to be listed, if any (B) with
respect to filings required to be made with FINRA (including, without
limitation, pursuant to FINRA Rule 5110) and (C) in compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel for the ASSAC Shareholders in connection with Blue Sky
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as any of the ASSAC Shareholders may designate)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is requested by the ASSAC Shareholders), (iii) messenger, telephone
and delivery expenses, (iv) Securities Act liability insurance, if ASSAC so
desires such insurance, (v) fees and expenses of all other Persons retained by
ASSAC in connection with the consummation of the transactions contemplated by
this Agreement, including, without limitation, ASSAC’s independent public
accountants (including the expenses of any comfort letters or costs associated
with the delivery by independent public accountants of a comfort letter or
comfort letters), and (vi) reasonable and documented fees and expenses of one
counsel for Stillwater (on behalf of their ASSAC Shareholders) and one counsel
for Wimbledon and Wimbledon Real Estate with respect to the matters described
herein. In addition, ASSAC shall be responsible for all of its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), and the expense of any annual audit. ASSAC shall
not be responsible for any discounts, commissions, transfer taxes or other
similar fees incurred by the ASSAC Shareholders or its other shareholders in
connection with the sale of the Registrable Securities or for any legal expenses
incurred by the ASSAC Shareholders in connection with the filing and review of
the Registration Statement in excess of those incurred pursuant to clause (vi)
above.
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5. Indemnification.
(a) Indemnification by
ASSAC. ASSAC shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless the ASSAC Shareholders, the officers,
directors, members, stockholders, partners, agents, brokers (including brokers
who offer and sell Registrable Securities as principal as a result of a pledge
or any failure to perform under a margin call of Ordinary Shares), investment
managers and advisors, legal counsel and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles, notwithstanding a
lack of such title or any other title) of each of them, each Person who controls
the ASSAC Shareholders (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, members,
stockholders, affiliates, partners, agents and employees (and any other Persons
with a functionally equivalent role of a Person holding such titles,
notwithstanding a lack of such title or any other title) of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees and expenses) and expenses
(collectively, “Losses”), as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in or incorporated by reference in a
Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of
any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, or (2) any violation
or alleged violation by ASSAC of the Securities Act, Exchange Act or any state
securities law, or any rule or regulation thereunder, in connection with the
performance of its obligations under this Agreement, provided, ASSAC shall
not be liable to an Indemnified Party in any such case and to the extent that
any such losses arise out of or are based on (i) untrue statements or omissions
are based solely upon information regarding such ASSAC Shareholder furnished in
writing to ASSAC by such ASSAC Shareholder expressly for use therein, or to the
extent that such information relates to such ASSAC Shareholder or the ASSAC
Shareholder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by the ASSAC Shareholder expressly
for use in a Registration Statement, such Prospectus or such form of Prospectus
or in any amendment or supplement thereto (it being understood that the ASSAC
Shareholders have approved Annex A hereto for this purpose) or (ii) an event of
the type specified in Section 3(d)(iii)-(vi), the use by such ASSAC Shareholder
of an outdated or defective Prospectus after ASSAC has notified such ASSAC
Shareholder in writing that the Prospectus is outdated or defective and prior to
the receipt by such ASSAC Shareholder of the Advice contemplated in Section
7(c). ASSAC shall notify all ASSAC Shareholders promptly of the
institution, threat or assertion of any proceeding arising from or in connection
with the transactions contemplated by this Agreement of which ASSAC is
aware.
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(b) Indemnification by the ASSAC
Shareholders. The ASSAC Shareholders shall indemnify and hold
harmless ASSAC, and each of its directors, officers, affiliates, agents and
employees, each Person who controls ASSAC (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, affiliates, agents or employees of such controlling Persons (and any
other Persons with a functionally equivalent role of a Person holding such
titles, notwithstanding a lack of such title or any other title, to the fullest
extent permitted by applicable law, from and against all Losses, as incurred, to
the extent arising out of or based solely upon: (x) the failure by any of the
ASSAC Shareholders to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by any of the ASSAC Shareholders to ASSAC specifically for
inclusion in such Registration Statement or such Prospectus or (ii) to the
extent that such information relates to the ASSAC Shareholders’ proposed method
of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such ASSAC Shareholders expressly for use in a
Registration Statement (it being understood that the ASSAC Shareholders have
approved Annex A hereto for this purpose), such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (iii) in the case of an
occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use
by any of the ASSAC Shareholders of an outdated or defective Prospectus after
ASSAC has notified such ASSAC Shareholders in writing that the Prospectus is
outdated or defective and prior to the receipt by such ASSAC Shareholders of the
Advice contemplated in Section 7(c). In no event shall the liability
of such ASSAC Shareholders hereunder be greater in amount than the dollar amount
of the net proceeds received by such ASSAC Shareholders upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification
Proceedings. If any proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “Indemnified Party”),
such Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not subject to
appeal or further review) that such failure shall have prejudiced the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such proceeding; or (3) the named parties to any such
proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and counsel to the Indemnified Party shall
reasonably believe that a material conflict of interest is likely to exist if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement
of any proceeding effected without its written consent, which consent shall not
be unreasonably withheld or delayed. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such proceeding.
10
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such proceeding in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided,
that the Indemnified Party shall promptly reimburse the Indemnifying Party for
that portion of such fees and expenses applicable to such actions for which such
Indemnified Party is judicially determined to be not entitled to indemnification
hereunder.
(d) Contribution. If
the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses, then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations
set forth in this Agreement, any reasonable attorneys’ or other fees or expenses
incurred by such party in connection with any proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), the
ASSAC Shareholders shall not be required to contribute, in the aggregate, any
amount in excess of the amount by which the net proceeds actually received by
such ASSAC Shareholders from the sale of the Registrable Securities subject to
the proceeding exceeds the amount of any damages that such ASSAC Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, except in the case of fraud by such
ASSAC Shareholders.
11
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Rule 144
With a
view to making available to the ASSAC Shareholders the benefits of Rule 144 and
any other rule or regulation of the SEC that may at any time permit ASSAC
Shareholders to sell the Registrable Securities to the public without
registration, as long as the ASSAC Shareholders own Registrable Securities,
ASSAC covenants to timely file (or obtain extensions in respect thereof and file
within any applicable grace period) all reports required to be filed by ASSAC
with the SEC as a foreign private issuer or otherwise, as
applicable. As long as the ASSAC Shareholders own Ordinary Shares, if
ASSAC is not required to file reports under the Exchange Act, it will prepare
and furnish to the ASSAC Shareholders and make publicly available in accordance
with Rule 144(c) promulgated under the Securities Act annual and quarterly
financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required to be filed by foreign
private issuers or otherwise, as applicable under the Exchange Act, as well as
any other information required thereby, in the time period that such filings
would have been required to have been made under the Exchange
Act. ASSAC further covenants that it will take such further action as
any of the ASSAC Shareholders may reasonably request, all to the extent
reasonably required from time to time to enable the ASSAC Shareholders to sell
Ordinary Shares without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 promulgated under the
Securities Act, including providing any legal opinions relating to such sale
pursuant to Rule 144. Upon the request of any of the ASSAC
Shareholders, ASSAC shall deliver to such ASSAC Shareholders a written
certification of a duly authorized officer as to whether it has complied with
such requirements.
12
7. Restriction on
Transferability of Preferred Shares. Each ASSAC Shareholder
covenants and agrees that it will not make any distribution of the Preferred
Shares to any person who was a limited partner (of any Delaware limited
partnership party to an Acquisition Agreement) or a shareholder (of a Cayman
exempted company party to an Acquisition Agreement) (each a “Proposed Transferee”)
unless and until it receives the prior written consent of ASSAC, which consent
shall be deemed given with respect to a distribution made to a Proposed
Transferee if such Proposed Transferee first delivers to ASSAC and to the
applicable ASSAC Shareholder a certificate providing the following or
substantially the following:
(a) Such
Proposed Transferee is acquiring the Preferred Shares for its own account as
principal, for investment and not with a view to resale or distribution of all
or any part of the Preferred Shares except in accordance with and as provided
for in this Agreement.
(b) Immediately
prior to the acquisition of the Preferred Shares:
(i) such
Proposed Transferee has such knowledge and experience in financial and business
matters that it is capable of evaluating the risks and merits of the prospective
investment; and
(ii) such
Proposed Transferee is able to bear the economic risk of the investment (i.e.,
at the time of investment it could afford a complete loss without
hardship).
(c) Such
Proposed Transferee has been informed as to, and is familiar with, the business
activities of ASSAC. Such Proposed Transferee has been provided with
copies of ASSAC’s proxy statement used in connection with the solicitation of
proxies for its Extraordinary General Meeting of Shareholders.
(d) Such
Proposed Transferee has had an opportunity to ask questions of, and receive
answers from, appropriate representatives of ASSAC, including its executive
officers, concerning ASSAC, its current and proposed business, and the terms and
conditions of the Acquisition Agreements, and to obtain such additional
information as such Proposed Transferee deems necessary to verify the accuracy
and adequacy of the information it has obtained. Such Proposed
Transferee understands that the distribution of Preferred Shares has not been
registered under the Securities Act in reliance upon exemptions therefrom, and,
accordingly, to the extent that it is not supplied with information which would
have been contained in a registration statement filed under the Securities Act
it must rely on its own access to such information.
(e) Such
Proposed Transferee affirms that it is an “accredited investor” as that term is
defined and construed pursuant to Rule 501 under the Securities Act as well as a
“qualified purchaser” as that term is defined and construed pursuant to Rule
2a51-1 under the Investment Company Act of 1940, as amended.
(f) Such
Proposed Transferee affirms that all information that it has provided to ASSAC
either directly or indirectly, concerning the Proposed Transferee, its financial
position and its knowledge of financial and business matters is accurate and
complete as of the date of this Agreement.
13
(g) Such
Proposed Transferee fully understands and agrees that it must bear the economic
risk of its investment in the Preferred Shares for an indefinite period of time
because, among other reasons, the Shares have not been registered under the
Securities Act, and, therefore, cannot be sold, pledged, assigned or otherwise
disposed of unless they are subsequently registered under the Securities Act or,
in the opinion of counsel acceptable to ASSAC, an exemption from such
registration is available.
(h) Such
Proposed Transferee understands that no federal or state agency has passed upon
the offering of the Preferred Shares or made any finding or determination as to
the fairness of the offering the Preferred Shares.
A
restrictive legend in substantially the following form will be imprinted on the
certificates evidencing the Preferred Shares and stop transfer orders or other
appropriate instructions to such effect will be maintained against the transfer
of the Preferred Shares on the transfer records of ASSAC or its transfer
agent:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY
STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF THE SECOND AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF
ASSOCIATION OF ASIA SPECIAL SITUATION ACQUISITION CORP. AND A REGISTRATION
RIGHTS AGREEMENT DATED JANUARY 19, 2010. A COPY OF SUCH AGREEMENT IS
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF ASIA SPECIAL SITUATION ACQUISITION
CORP. AND ASIA SPECIAL SITUATION ACQUISITION CORP. WILL FURNISH COPIES OF SUCH
AGREEMENT TO THE HOLDER OF THIS CERTIFICATE UPON REQUEST AND WITHOUT
CHARGE.”
The
transfer of the Preferred Shares on the books and records of ASSAC will only be
effected in accordance with such legend.
8. Miscellaneous.
(a) Remedies. In
the event of a breach by ASSAC or by any of the ASSAC Shareholders of any of
their respective obligations under this Agreement, the ASSAC Shareholders or
ASSAC, as the case may be, in addition to being entitled to exercise all rights
granted by law and under this Agreement, including recovery of damages, will be
entitled to specific performance of their rights under this
Agreement. ASSAC and the ASSAC Shareholders agree that monetary
damages would not provide adequate compensation for any losses incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall not assert or shall waive the defense that a
remedy at law would be adequate.
14
(b) Compliance. The
ASSAC Shareholders covenant and agree that they will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Registrable Securities pursuant to a Registration
Statement.
(c) Discontinued
Disposition. The ASSAC Shareholders agree by its acquisition
of Registrable Securities that, upon receipt of a notice from ASSAC of the
occurrence of any event of the kind described in Section 3(d)(iii) through (vi),
the ASSAC Shareholders will forthwith discontinue disposition of such
Registrable Securities under a Registration Statement until they are advised in
writing (the “Advice”) by ASSAC
that the use of the applicable Prospectus (as it may have been supplemented or
amended) may be resumed. ASSAC will use its best efforts to ensure
that the use of the Prospectus may be resumed as promptly as is
practicable. ASSAC agrees and acknowledges that any periods during
which the ASSAC Shareholders are required to discontinue the disposition of the
Registrable Securities hereunder shall be subject to the provisions of Section
2(b).
(d) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by ASSAC and the ASSAC
Shareholders.
(e) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Acquisition
Agreement. Any notice or other deliverable to an ASSAC Shareholder
pursuant to the terms hereof shall concurrently be delivered to each other ASSAC
Shareholder.
(f) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns, to the extent permitted by this
Agreement, of each of the parties and shall inure to the benefit of the ASSAC
Shareholders. ASSAC may not assign (except by merger) its rights or
obligations hereunder without the prior written consent of the ASSAC
Shareholders. The rights of the ASSAC Shareholders hereunder shall be
assignable without the consent of ASSAC.
(g) No Inconsistent
Agreements. Neither ASSAC nor any of its Subsidiaries has
entered into, as of the date hereof, nor shall ASSAC or any of its Subsidiaries,
on or after the date of this Agreement, enter into any agreement with respect to
its securities that would have the effect of impairing the rights granted to the
ASSAC Shareholders in this Agreement or that otherwise conflicts with the
provisions hereof. Neither ASSAC nor any of its subsidiaries has
previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not been satisfied in
full, nor shall ASSAC file any registration statement with respect to the sale
of any of its equity securities prior to the effectiveness of the Registration
Statement referenced in Section 2.
15
(h) Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
(i) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Acquisition Agreement.
(j) Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.
(k) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(l) Headings. The
headings in this Agreement are for convenience only, do not constitute a part of
this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(m) Third Party
Beneficiaries. Except as set forth herein, this Agreement
shall not confer any rights or remedies upon any person other than the parties
hereto and their respective successors and permitted assigns.
**********************
16
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
|
GEROVA
FINANCIAL GROUP, LTD.
(f/k/a/
ASIA SPECIAL SITUATION ACQUISITION CORP.)
|
||
|
By:
|
/s/ Xxxx X.
Xxxxx
|
|
|
Name:
Xxxx X. Xxxxx
|
||
|
Title:
President
|
||
|
STILLWATER
CAPITAL PARTNERS, LLC
|
||
|
By:
|
/s/ Xxxxxxx
Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Manager
|
||
|
STILLWATER
CAPITAL PARTNERS, INC.
|
||
|
By:
|
/s/ Xxxxxxx
Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
|
STILLWATER
ASSET BACKED OFFSHORE FUND LTD.
|
||
|
By:
|
/s/ Xxxxxxx
Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
|
STILLWATER
ASSET BACKED FUND SPV
|
||
|
By:
|
/s/ Xxxxxxx
Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
17
|
SABF
II ONSHORE SPV
|
||
|
By:
|
/s/ Xxxxxxx
Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
|
STILLWATER
MARKET NEUTRAL FUND LTD.
|
||
|
By:
|
/s/ Xxxx
Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Director
|
||
|
WIMBLEDON
FINANCING MASTER FUND LTD.
|
||
|
By: Weston
Capital Asset Management LLC
|
||
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
Manager
|
||
|
WIMBLEDON
REAL ESTATE FINANCING MASTER FUND LTD.
|
||
|
By: Weston
Capital Asset Management LLC
|
||
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
Manager
|
||
18
