REGISTRATION RIGHTS AGREEMENT
Exhibit 10.7
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the day
of ___, 2007, by and among Lumax Acquisition Corp., a Delaware corporation (the “Company”)
and Capital Growth Financial, LLC (the “IPO Underwriter”).
WHEREAS, in connection with the underwriting of the securities of the Company by IPO
Underwriter, IPO Underwriter received an option to purchase certain securities of the Company
pursuant to the Unit Purchase Option Agreement between the Company and IPO Underwriter of even date
herewith (“Unit Purchase Option”);
WHEREAS, the IPO Underwriter and the Company desire to enter into this Agreement to provide
the IPO Underwriter with certain rights relating to the registration of the Registrable Securities
(defined below) held by the IPO Underwriter;
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.
“Current Market Value” means the average of the closing bid and ask prices for the Common
Stock during the five business days immediately preceding the date in question.
“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.
“Founders Registration Rights Agreement” means the Registration Rights Agreement of even date
herewith by and among the Company and the Founders.
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“Founders” means Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx and Lumax Investment Management, LLC.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“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 all of the shares of Common Stock and Warrants or Units composed
of shares of Common Stock and Warrants owned or held by the IPO Underwriter. Registrable Securities
include any warrants, shares of capital stock or other securities of the Company issued to the
Underwriter in connection with any exercise of the over allotment option with respect to the
Company’s initial public offering or as a dividend or other distribution with respect to or in
exchange for or in replacement of such shares of Common Stock and shares of Common Stock issuable
upon exercise of the Warrants. 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; (c) such securities
shall have ceased to be outstanding or (d) the Registrable Securities are salable 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).
“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.
“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.
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2. Registration Rights.
2.1. Demand Registration.
2.1.1 Request for Registration. Subject to and in accordance with this Agreement, at any time
on or after the six month anniversary of the date the Registration Statement is declared effective
by the Commission (the “Effective Date”) and prior to the fifth anniversary of the Effective Date,
the holders of at least 50% of the then Registrable Securities held by the IPO Underwriter or its
transferees, may make a written demand (a “Demand Request”) for registration under the Securities
Act of all or part of their Registrable Securities (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 other holders
of Registrable Securities and the Founders (so long as the Founders or their transferees shall hold
Registrable Securities as defined in the Founders Registration Rights Agreement) 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 in writing
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 one (1) Demand Registration under this
Section 2.1.1 in respect of Registrable Securities. In addition, the Company shall not be obligated
to effect any Demand Registration under this Section 2.1.1 if, within 20 days of receipt of a
written demand for a Demand Registration, the Company agrees to purchase the Registrable Securities
from the requesting Holders, in the case of the Warrants, at a price equal to the difference
between the exercise price of the Warrants and the Current Market Value on the date of the Demand
Request and in the case of the Common Stock, at the Current Market Value on the date of the Demand
Request.
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
covering all of the Registrable Securities specified in the notice received pursuant to Section
2.1.1 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.
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
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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.
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
shareholders 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 that can be sold without
exceeding the Maximum Number of Shares, (ii) second, the securities as to which piggy-back
registration has been requested under Section 2.2 of the Founders Registration Rights Agreement has
been made that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the
extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) or
(ii), 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; (iv) fourth, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i), (ii), and (iii) the shares
of Common Stock 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; and (v) fifth, to the extent that the Maximum Number of Shares have not
been reached under the foregoing clauses (i), (ii), (iii), and (iv) the shares of Common Stock that
other shareholders desire to sell that can be sold without exceeding the Maximum Number of Shares
to the extent that the Company, in it sole discretion, wishes to permit such sales pursuant to this
clause (v).
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 2.1.1.
2.2. Piggy-Back Registration.
2.2.1 Piggy-Back Rights. If at any time after the six month anniversary of the Effective Date
and prior to the fifth anniversary of the Effective Date, the Company proposes to
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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 shareholders of the Company for
their account (or by the Company and by shareholders 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 shareholders, (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 ten (10) 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 commercially reasonable 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 to be included 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.
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 shareholders of the Company, exceeds the Maximum Number of Shares,
then the Company shall include in any such registration:
(i) 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 Registrable Securities as to which
registration has been requested under Section 2.2.1 that can be sold without exceeding the Maximum
Number of Shares; (C) third, the securities as to which piggy-back registration has been requested
under Section 2.2 of the Founders Registration Rights Agreement 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 as to
which registration has been requested pursuant to written
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contractual piggy-back registration rights of other security holders (pro rata in accordance
with the number of shares such person has actually requested to be included in such registration,
regardless of the number of shares of Common Stock with respect such person has the right to
request inclusion).
(ii) If the registration is a “demand” registration undertaken at the demand of persons other
than the holders of Registrable Securities pursuant to written contractual arrangements with such
persons, (A) first, the shares of Common Stock 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 Registrable Securities as
to which registration has been requested under Section 2.2.1 (C) third, to the extent the Maximum
Number of Shares has not been reached under the foregoing clauses (A) and (B), the securities as to
which piggy-back registration has been requested under Section 2.2 of the Founders Registration
Rights Agreement (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 that
the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and
(E) fifth, to the extent that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B), (C) and (D), the shares of Common Stock, if any, as to which registration has
been requested pursuant to written contractual piggy-back registration rights which other
shareholders desire to sell 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 may also elect to withdraw a registration statement at any time prior to the
effectiveness of the Registration Statement without thereby incurring any liability to the holders
of Registrable Securities. 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.
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 commercially reasonable 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 commercially
reasonable 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
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have the right to defer any Demand Registration for up to one hundred twenty (120) 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 Chief Executive Officer of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, (x) such registration
statement would require disclosure of a material fact or plan that the Company believes would have
a material adverse effect on any proposal or plan by the Company to engage in any acquisition,
merger or other significant transaction or (y) the Company has filed a registration statement
relating to any of the Company’s securities and the Company believes that the filing of the
registration statement relating to the Registrable Securities would materially adversely effect the
offering by the Company or the market for the Company’s securities after such an offering;
provided further, however, that the Company shall not have the right to
exercise the right set forth in the immediately preceding proviso more than twice or for more than
an aggregate of one hundred eighty (180) days 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 three hundred sixty-five (365) 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.
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
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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 any 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 object.
3.1.5 State Securities Laws Compliance. The Company shall use commercially reasonable 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 Section 3.1.5 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.
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
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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 reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company’s officers, directors and employees to supply all
information reasonably requested by any of them in connection with such Registration Statement, in
all cases, subject to all such persons’ respective agreements to maintain the confidentiality of
all non-public information furnished thereto pursuant to this Section 3.1.8.
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.
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 shareholders, 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.
3.1.11 Listing. The Company shall use commercially reasonable 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), upon any suspension by the Company, 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 and any Piggy-Back
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Registration pursuant to Section 2.2, 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 under 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 shareholders 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.
4. Indemnification and Contribution.
4.1. Indemnification by the Company. The Company agrees to indemnify and hold harmless the IPO Underwriter 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 IPO Underwriter
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 thereto, 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
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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.
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 person, if any, who controls the Company 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 thereto, 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 such
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.
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 reasonably
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
11
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.
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.
4.4.3 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.
12
5. Underwriting And Distribution.
5.1. Rule 144. The Company covenants that it shall use commercially reasonable efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and to 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 the IPO Underwriter (and any
other holder of Registrable Securities) and the Founders, 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. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights granted to the
holders of Registrable Securities under this Agreement.
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 their respective successors
and the permitted assigns of the IPO Underwriter 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.
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.
13
To the Company:
if to the Company, to:
Lumax Acquisition Corp.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
To an Investor:
Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Lumax Investment Management, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
To Capital Growth Financial, LLC:
Capital Growth Financial, LLC
000 XX Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
000 XX Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
14
With a copy to:
Xxxxxxxxx Traurig LLP
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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 and be
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.
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.
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 IPO Underwriter 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
15
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 Florida applicable to agreements made and to be performed within
the State of Florida, 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 parties in the negotiation, administration, performance or enforcement
hereof.
[The remainder of page is intentionally left blank]
16
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.
| LUMAX ACQUISITION CORP. | ||||
| A Delaware corporation | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CAPITAL GROWTH FINANCIAL, LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Underwriter Registration Rights Agreement]
