PUT AND CALL OPTION AGREEMENT
THIS PUT
AND CALL OPTION AGREEMENT (this “Agreement”) is dated as of
August 17, 2009 by and among Xxxxx X. Xxxxxx (“Xxxxxx”), Xxxx X. Xxxx (“Xxxx”), Xxxxxx Xxxxx (“Xxxxx”), Xxxxxx X. Xxxxxxxx
(“Xxxxxxxx”), Xxxxxx
Xxxxxx (“Xxxxxx”), Xxxx
X. Xxxxxxxxxxx (“Xxxxxxxxxxx”), Sang-Xxxx Xxx
(the “Investor”) and
North Shore Acquisition Corp., a Delaware corporation (the “Company”). Gordon, Klee,
Sroka, Goldberg, Xxxxxx and Xxxxxxxxxxx are each herein referred to individually
as a “Seller” and
collectively as the “Sellers”.
RECITALS
The
Company was formed on June 26, 2007 for the purpose of acquiring an operating
business (“Business
Combination”).
Sellers
collectively own an aggregate of 1,600,000 warrants to purchase shares of common
stock, par value $0.0001 per share (the “Common Stock”), of the Company
(the “Warrants”). In
addition, Sellers collectively own an aggregate of 1,588,250 shares (the “Shares”) of Common Stock of
the Company.
Gordon,
Klee, Sroka, Goldberg, Xxxxxx and Loewenstein are officers, directors and/or
stockholders of the Company.
The
Investor has approached the Company and the Sellers with a proposal to take
control of the Company’s Board of Directors and use his best efforts to
introduce the Company to suitable targets for a Business Combination, and, in
consideration therefor, to obtain the right to purchase the
Warrants.
The
Company’s Board of Directors has determined that the Investor offers the Company
the best chance to consummate a Business Combination and that it is in the best
interests of the Company’s stockholders to enter into this
Agreement.
Pursuant
to this Agreement, the Sellers will have the option to sell to the Investor and
the Investor will have the option to purchase from the Sellers all of the
Warrants upon the earlier of (i) the Company’s consummation of a Business
Combination, (ii) the Company’s liquidation of its trust account (the “Trust Account”) and (iii)
December 31, 2009, all upon the terms and subject to the conditions set forth in
this Agreement.
As a
condition to this Agreement, and in consideration of the Investor’s efforts in
assisting the Company to consummate a Business Combination, upon consummation of
a Business Combination, the Sellers shall transfer, for no additional
consideration, an aggregate of 1,488,250 shares of Common Stock to the
Investor.
AGREEMENT
For good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
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ARTICLE
1
DEFINITIONS
The
following terms, as used herein, have the following meanings:
“1933 Act” means the Securities
Act of 1933, as amended.
“1934 Act” means the Securities
Exchange Act of 1934, as amended.
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used
in the 1933 Act and the rules and regulations promulgated
thereunder.
“Business Combination” has the
meaning set forth in the Preamble.
“Business Day” means any day
other than a Saturday, Sunday or legal or bank holiday in the City of New York,
State of New York. If any time period set forth in this Agreement
expires on other than a Business Day, such period shall be extended to and
through the next succeeding Business Day.
“Call Option” has the meaning
set forth in Section
2.1.2.
“Claim” has the meaning set
forth in Section
8.16.
“Closing” has the meaning set
forth in Section
2.1.3.
“Common Stock” has the meaning
set forth in the Preamble.
“Company SEC Documents” means
all documents, as such documents may have been amended (and, if amended, only
the most recent form of such document shall be deemed to be one of the “Company
SEC Documents”), filed by the Company with the SEC under either the 1933 Act or
the 1934 Act since its formation.
“Xxxxxxxx Xxxxxx” means
Xxxxxxxx Xxxxxx, counsel to the Company and the Sellers.
“Indemnified Damages” has the
meaning set forth in Section
6.1.
“Investor” has the meaning set
forth in the Preamble.
“Lien” means, with respect to
any property or asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim of any kind in respect of such property or
asset, other than (i) Liens created by the Investor and (ii) restrictions on
transfer pursuant to securities laws, the Stock Escrow Agreement or the
Subscription Agreement. For purposes of this Agreement, a Person
shall be deemed to own subject to a Lien, any property or asset that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such property or asset.
“Xxxxx Xxxxx” means Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the
Investor.
“Option” has the meaning set
forth in Section
2.1.2.
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“Option Trigger” means the
earlier of (i) the Company’s consummation of a Business Combination, (ii) the
Company’s liquidation of the Trust Account and (iii) December 31,
2009.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Purchase Price” has the
meaning set forth in Section
3.1.
“Put/Call Escrow Agent” has the
meaning set forth in Section
2.1.4.
“Put/Call Escrow Agreement” has
the meaning set forth in Section
2.1.4
“Put Option” has the meaning
set forth in Section
2.1.1.
“SEC” means the Securities and
Exchange Commission.
“Seller” and “Sellers” has the meaning set
forth in the Preamble.
“Several Provisions” has the
meaning set forth in the preamble to Article 4.
“Share Escrow Agent” means
Continental Stock Transfer and Trust Company.
“Stock Escrow Agreement” means
that certain Stock Escrow Agreement dated November 30, 2007 by and among the
Sellers, the Company and Continental Stock Transfer & Trust
Company.
“Subscription Agreement” is the
agreement executed by each Seller in connection with the purchase of his
Warrants.
“Transferred Shares” has the
meaning set forth in Section
2.2.
“Trust Account” has the meaning
set forth in the Preamble.
“Warrants” has the meaning set
forth in the Preamble.
Any
reference in this Agreement to (i) a statute shall be to such statute, as
amended from time to time, and to the rules and regulations promulgated
thereunder and (ii) the word “including” shall mean “including, without
limitation.”
ARTICLE
2
PUT
AND CALL OPTIONS; TRANSFERS
2.1. Put and Call Options for
Purchase and Sale of Warrants.
2.1.1 Grant of Put
Option. The Investor hereby grants to the Sellers an
irrevocable option (the “Put
Option”) to require the Investor to purchase all, but not less than all,
of the Warrants at the Purchase Price, which Put Option may be exercised by the
Sellers only following the Option Trigger. The Put Option shall be
terminated and be of no further force or effect in the event that Sellers are in
breach or default of the representations and warranties contained in Section 4.6 of this
Agreement.
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2.1.2 Grant of Call
Option. Sellers, jointly and severally, hereby grant to the
Investor an irrevocable option (the “Call Option”; the Call Option
and the Put Option shall sometimes be referred to herein as an “Option”) to purchase at any
time following the Option Trigger, all, but not less than all, of the Warrants
at the Purchase Price.
2.1.3 Exercise of Option.
The Investor or the Sellers, as applicable, may exercise an Option following the
Option Trigger by delivering written notice of exercise to the Sellers or the
Investor, as applicable, and, in either case, to the Put/Call Escrow
Agent. Sellers’ written notice of exercise of their Put Option may be
executed only by either Xxxxxx or Xxxx, and all Sellers will be bound by such
executed notice. The closing of the purchase and sale of the Warrants
pursuant to such an exercise of an Option (the “Closing”) will occur within
two (2) business days following the delivery of such notice of exercise. At the
Closing, (i) the Put/Call Escrow Agent will deliver to the Investor the
certificates representing the Warrants being purchased by the Investor, which
shall be transferred by the Sellers free and clear of all Liens, together with
the warrant powers related thereto referenced below in Section 3.2.1 and
(ii) the Put/Call Escrow Agent will deliver the Purchase Price to the Sellers.
The payment shall be made by immediately available funds transferred to a bank
account designated by the Sellers to the Put/Call Escrow Agent prior to
Closing. Upon receipt of the Purchase Price, the Sellers hereby
acknowledge that they will have no further interest in the
Warrants.
2.1.4 Put/Call Escrow. On
the date of this Agreement, (i) the Investor shall deposit the Purchase Price by
wire transfer into an interest-bearing escrow account maintained by Xxxxxxxx
Xxxxxx (“Put/Call Escrow
Agent”); and (ii) the Sellers shall deposit the Warrants and the warrant
powers with the Put/Call Escrow Agent. The Purchase Price, Warrants
and warrant powers shall be held in escrow by the Put/Call Escrow Agent until
the exercise of an Option, pursuant to an escrow agreement dated the date hereof
(“Put/Call Escrow
Agreement”).
2.2. Transfer of
Shares. Upon consummation of a Business Combination, Sellers
shall transfer an aggregate of 1,488,250 of the Shares (such Shares referred to
herein as the “Transferred
Shares”) to the Investor, in the amount set forth next to such Seller’s
name as set forth on Schedule 2.2 attached
hereto, which Transferred Shares shall continue to be held in escrow pursuant to
the Stock Escrow Agreement. Sellers have delivered duly executed
stock powers and a notice to the Share Escrow Agent evidencing the agreement of
the Sellers set forth herein. The Sellers will receive no cash
consideration for the transfer of the Transferred Shares to the
Investor.
ARTICLE
3
PURCHASE
PRICE; DELIVERIES
3.1. Purchase
Price. The consideration to be paid by the Investor to the
Sellers for the Warrants pursuant to the exercise of an Option shall be an
aggregate purchase price of $1,000,000 (the “Purchase Price”), to be paid
after the exercise of an Option to each Seller in the amounts as set forth on
Schedule
3.1.
3.2. Deliveries by Sellers,
Investor and Company. The Sellers, the Investor or the Company, as the
case may be, shall deliver on the date hereof:
3.2.1 Warrants
and duly executed warrant powers with respect to the Warrants, which shall be
held in escrow by the Put/Call Escrow Agent until their release upon the
exercise of an Option;
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3.2.2 Amendments
to the insider letters previously executed by each Seller, in the forms attached
hereto as Exhibits
A-1 through A-2.
3.2.3 An
executed letter agreement addressed to the Share Escrow Agent, in the form
attached hereto as Exhibit B, with
respect to the transfer of the Transferred Shares upon the consummation of a
Business Combination, along with appropriate stock powers to effectuate
same;
3.2.4 Resignations
of (i) Xxxxxx as an officer and director, (ii) Xxxx and Loewenstein as officers
and (iii) Xxxxx as a director;
3.2.5 Insider
letters, in the forms attached hereto as Exhibits C-1 through
C-3, for each
of the Investor, Xxxxx-Yub Ahn (“Ahn”) and Yo-Shin Song (“Song”) (which shall include
Trust Account indemnity provisions and, with respect to the Investor, an
acknowledgement by the Investor to become a party to the Stock Escrow Agreement
with respect to his Transferred Shares);
3.2.6 A
notice to the Company from the Sellers, in the form attached hereto as Exhibit D, with
respect to the assignment of Sellers’ registration rights with respect to the
Warrants, the shares of Common Stock underlying the Warrants and the Transferred
Shares;
3.2.7 An
executed letter agreement, in the form attached hereto as Exhibit E,
terminating the Company’s use of office space, administrative, technology and
secretarial services, at 000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxx
Xxxx;
3.2.8 Irrevocable
proxies with respect to voting of the Shares at a meeting of
stockholders;
3.2.9 A
certificate, signed by Xxxxxx, Xxxx and the Chief Executive Officer of the
Company, that (i) the Company has extinguished any and all liabilities,
including the prepayment of certain insurance and tax obligations, except for
the prepaid assets and the liabilities set forth on Schedule 3.2 attached
hereto and such other liabilities known to the signatories that would not, when
paid, reduce the Company’s out of trust cash balance below $0, and (ii) the
Company has not executed any definitive agreements, letters of intent or any
other agreement or understanding with respect to any Business Combination that
has not been abandoned prior to the date hereof;
3.2.10 A
certificate, signed by the Chief Executive Officer of the Company, attaching
resolutions adopted by the remaining directors following the resignations
described in Section
3.2.4 hereto that (i) elect (a) the Investor as a Class C director and
Chairman of the Board, (b) elect Ahn as a Class C director, and (c) elect Song
as a Class B director of the Company to fill the vacancies created by such
resignations, (ii) reclassify Xxxx as a Class A director, (iii) appoint Ahn as
Chief Executive Officer and President, and Song as Chief Financial Officer of
the Company, respectively, and (iv) ratify the issuance of an additional 300,000
Warrants pursuant to the Subscription Agreements,;
3.2.11 An
opinion of Xxxxxxxx Xxxxxx in form and substance reasonably acceptable to the
Investor and an opinion of Xxxxx Xxxxx in form and substance reasonably
acceptable to the Company;
3.2.12 The
Put/Call Escrow Agreement; and
3.2.13 Such
other certificates, instruments and documents of transfer, if any, as may be
necessary to consummate the transactions contemplated by this
Agreement.
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ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Each of
the Sellers, severally and jointly (except for Sections 4.1, 4.4(b), 4.5(b), 4.6, 4.10(b) and 4.15(b) (“Several Provisions”), which
shall be made only severally), makes the representations and warranties
contained in this Article 4 to the Investor, intending that the Investor relies
on each of such representations and warranties in order to induce the Investor
to enter into and complete the transactions contemplated by this
Agreement.
4.1. Authorization of
Sellers. The execution, delivery and performance by each Seller of this
Agreement and the consummation by each Seller of the transactions contemplated
hereby are within each Seller’s powers and have been duly authorized by all
necessary action on the part of such Seller. This Agreement constitutes a valid
and binding agreement of each Seller, enforceable against each Seller in
accordance with its terms.
4.2. Company
Authorization. This Agreement is the valid and binding obligation of the
Company, enforceable in accordance with its terms. The execution,
delivery and performance of this Agreement has been duly authorized by all
necessary corporate or other action of the Company. The issuance,
sale and delivery of the shares of Common Stock issuable upon exercise of the
Warrants have been duly authorized and reserved for issuance by all necessary
corporate action on the part of the Company. The shares of Common
Stock issuable upon exercise of the Warrants, when issued, will be duly and
validly issued, fully paid and non-assessable.
4.3. Corporate Existence and
Power. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
all corporate powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now
conducted. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary.
4.4. Governmental
Authorization. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby by (a) the Company
and (b) each Seller, require no action by or in respect of, or filing with, any
governmental body, agency, official or authority, domestic or foreign, other
than compliance with any applicable requirements of the 1933 Act, the 1934 Act
and any other applicable securities laws, whether state, federal or
foreign.
4.5. Non-contravention.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby by (a) the Company and (b) each Seller,
do not and will not (i) contravene, conflict with, or result in a violation or
breach of any provision of the Amended and Restated Certificate of Incorporation
or by-laws of the Company or any applicable law, statute, ordinance, rule,
regulation, judgment, injunction, order or decree binding upon or applicable to
such Seller or the Company, (ii) except as set forth in Schedule 4.5,
contravene, conflict with, or result in a violation or breach of any provision
of any written or oral agreement to which the Company or any Seller is a party,
(iii) except as set forth in Schedule 4.5, require
any consent or other action by any Person under, constitute a default or an
event that, with or without notice or lapse of time or both, could become a
default under, or cause or permit the termination, cancellation, acceleration or
other change of any right or obligation or the loss of any benefit to which the
Company or any Seller is entitled under any provision of any agreement or other
instrument binding upon the Company or any Seller or any license, franchise,
permit, certificate, approval or other similar authorization affecting the
assets or business of any Seller or the Company, or (iv) result in the creation
or imposition of any Lien on the Warrants, the Transferred Shares or shares of
Common Stock underlying the Warrants.
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4.6. Title to Warrants and
Shares. Subject to the terms and provisions of the Stock Escrow Agreement
and the Subscription Agreement, each Seller has good and valid legal title to,
and beneficial ownership of, the respective Shares and Warrants owned by him and
full legal right and power to transfer and deliver the Transferred Shares and
Warrants owned by him to the Investor in the manner provided in this Agreement.
Upon payment of the Purchase Price for the Warrants pursuant to the terms of
this Agreement and the transfer of the Transferred Shares, the Investor will
receive good and valid legal title to, and full beneficial ownership of, the
Warrants and Transferred Shares owned by such Seller, free and clear of all
Liens, subject to the terms and provisions of the Stock Escrow Agreement and the
Subscription Agreement.
4.7. Capitalization. The
authorized capital stock of the Company consists of 20,000,000 shares of Common Stock,
par value $0.0001 per share,
7,941,250 of which
shares are issued and outstanding, and 1,000,000 shares of preferred
stock, none of which shares are issued and outstanding. All of the
issued and outstanding shares of the Company’s capital stock have been duly
authorized and validly issued and are fully paid and non-assessable and have
been issued in compliance with applicable federal and state securities
laws. Except as contemplated by this Agreement or as disclosed in the
Company SEC Documents (i) no subscription, warrant, option, convertible security
or other right (contingent or otherwise) to purchase or acquire any shares of
capital stock of the Company is authorized or outstanding, (ii) there is not any
commitment or offer of the Company to issue any subscription, warrant, option,
convertible security or other such right or to issue or distribute to holders of
any shares of its capital stock any evidences of indebtedness or assets of the
Company, (iii) the Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, and (iv) there are no restrictions on the transfer of the
Company’s capital stock other than those arising from securities laws or
contemplated in the Company SEC Documents. Except as set forth in
this Agreement or in the Company SEC Documents, no Person is entitled to (x) any
preemptive or similar right with respect to the issuance of any capital stock of
the Company, or (y) any rights with respect to the registration of any capital
stock of the Company under the 1933 Act.
4.8. SEC
Filings. As of its filing date, as any such filing may
have been amended prior to the date hereof, each Company SEC Document complied,
as to form and content in all material respects with the applicable requirements
of the 1933 Act and the 1934 Act, as the case may be, and did not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
4.9. No Undisclosed Material
Liabilities. Since June 30, 2009, there has been no material change in
the financial condition of the Company. Except as disclosed in the
Company SEC Documents, there are no material liabilities or obligations of the
Company of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, other than liabilities or obligations
incurred in the ordinary course of business consistent with past practices since
June 30, 2009 or in
connection with the transactions contemplated hereby.
4.10. Litigation. There
is no litigation or other administrative or judicial proceedings pending or
threatened against (a) the Company or (b) that might endanger each Seller’s
right to sell the Warrants owned by him to the Investor or to transfer the
Transferred Shares owned by him to the Investor. There are no judgments against
(x) the Company or (y) against any Seller that might endanger such Seller’s
right to sell the Warrants owned by him or to transfer the Transferred Shares
owned by him to the Investor in accordance with the terms of this
Agreement.
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4.11. Employment, Consulting and
Other Agreements. No Seller nor any Affiliate of any Seller is
a party to any employment agreement or consulting agreement with the Company, or
to any other agreement that entitles such Seller or any of his Affiliates to
payments from the Company.
4.12. Repayment of Loans.
Each Seller hereby confirms that all loans made by him or his Affiliates to the
Company and/or its Affiliates have been satisfied in full and no such Seller is
due any further amounts from the Company or its Affiliates for any
purpose.
4.13. Possession of Company
Property. Except as set forth on Schedule 4.13, no
Seller is in possession of any Company property.
4.14. No Other Company
Agreements. No Seller has entered into any agreements on
behalf of the Company except such agreements as have been fully performed or
agreements that have been filed by the Company as exhibits to the Company SEC
Documents.
4.15. Finders’ and Advisory
Fees. There is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of (a)
the Company or (b) any Seller, who might be entitled to any fee or commission
from the Company or any Seller in connection with the transactions contemplated
in this Agreement.
4.16. Recent Financial
Transactions. Attached hereto as Schedule 4.16 is a
ledger of all payments made by the Company between June 19, 2007 and August 5,
2009. This ledger was prepared from the books and records of the
Company and represents all payments made by the Company during this time
period.
4.17. Company Quarterly Report on
Form 10-Q. The Company has filed its Quarterly Report on Form
10-Q for the quarter ended June 30, 2009 with the SEC.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor makes the representations and warranties contained in this Article 5 to
the Company and Sellers intending that the Company and Sellers rely on each of
such representations and warranties in order to induce the Company and Sellers
to enter into and complete the transactions contemplated by this
Agreement.
5.1. Authorization. The
execution, delivery and performance by the Investor of this Agreement and the
consummation by the Investor of the transactions contemplated hereby are within
the Investor’s power and have been duly authorized by all necessary action. This
Agreement constitutes a valid and binding agreement of the Investor, enforceable
against the Investor in accordance with its terms.
5.2. Governmental
Authorization. The execution, delivery and performance by the Investor of
this Agreement and the consummation by the Investor of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency, official or authority, domestic, or foreign, other
than compliance with any applicable requirements of the 1933 Act, the 1934 Act
and any other applicable securities laws, whether state, federal or
foreign.
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5.3. Investment
Representations.
5.3.1 Acknowledgment. The
Investor understands and agrees that the Warrants, the shares of common stock
underlying the Warrants and the Transferred Shares have not been registered
under the 1933 Act or the securities laws of any state of the U.S. and that the
sale of the Warrants and the transfer of the Transferred Shares will be effected
in reliance upon one or more exemptions from registration afforded under the
0000 Xxx.
5.3.2 Status. The
Investor represents and warrants to Sellers that he is an “Accredited Investor”
as defined in the rules promulgated under the 1933 Act. The Investor
understands that the Warrants will be offered and sold to the Investor and the
Transferred Shares transferred to the Investor in reliance upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth in this Agreement, in order that the
Sellers may determine the applicability and availability of the exemptions from
registration on which Sellers are relying.
5.3.3 Opinion. The
Investor will not transfer any or all of the Warrants or Transferred Shares
absent an effective registration statement under the 1933 Act and applicable
state securities law covering the disposition of such Warrants, without first
providing the Company with an opinion of counsel (which counsel and opinion are
reasonably satisfactory to the Company) to the effect that such transfer will be
exempt from the registration and the prospectus delivery requirements of the
1933 Act and the registration or qualification requirements of any applicable
U.S. state securities laws.
5.4. Review of Company SEC
Documents. The Investor has reviewed the Company SEC
Documents, including the exhibits thereto.
5.5. No Value of Warrants on
Liquidation. The Investor acknowledges and agrees that the Warrants will
become worthless if no Business Combination is consummated and the Investor will
have no recourse against Sellers as a result of such event.
5.6. Finders’ and Advisory
Fees. There is no investment banker, broker, finder or other intermediary
that has been retained by or is authorized to act on behalf of any Investor who
might be entitled to any fee or commission from the Company in connection with
the transactions contemplated in this Agreement.
ARTICLE
6
INDEMNIFICATION
6.1. Indemnification by
Sellers. From and after the date of this Agreement, Sellers, severally
and jointly (except with respect to the Several Provisions, which shall be only
severally), shall indemnify, defend and hold harmless the Investor, the Company
and their respective officers, directors, shareholders, employees, agents and
Affiliates and their successors and assigns against any loss, claim, damage,
cost, obligation, liability, penalty and expense, including all legal and other
expenses reasonably incurred in connection with investigating or defending
against any such loss, claim, damage, cost, obligation, liability, penalty or
expense or action in respect of such matters (collectively referred to as “Indemnified Damages”),
occasioned by, arising out of or resulting from any breach or default of any
representation or warranty by, or covenant of, such Seller contained in this
Agreement or any other agreement or certificate provided for in this
Agreement or arising out of, or resulting from, the operation of the Company by
Sellers prior to the date hereof to the extent that such claim is not covered by
directors’ and officers’ liability insurance maintained by the
Company.
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6.2. Indemnification by
Investor. From and after the date of this Agreement, the Investor shall
indemnify defend and hold harmless Sellers and their heirs, personal
representatives, agents, successors, and Affiliates against any Indemnified
Damages occasioned by, arising out of or resulting from any breach or default of
any representation or warranty by, or covenant of, the Investor contained in
this Agreement or any other agreement provided for in this Agreement or arising
out of, or resulting from, the operation of the Company by the Investor after
the date hereof to the extent that such claim is not covered by directors’ and
officers’ liability insurance maintained by the Company.
6.3. Notice of
Indemnification. Upon receipt by an indemnified party of notice of the
commencement against it of any action involving a claim, such indemnified party,
if a claim in respect of such action is to be made by it against any
indemnifying party under this Article 6, shall promptly notify in writing the
indemnifying party of such commencement. In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
such commencement, the indemnifying party will be entitled to participate in the
defense and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, assume the defense of the action, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense, the indemnifying party will not be liable to such indemnified party
under this Article 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense other than reasonable
costs of investigation. Any such indemnifying party shall not be
liable to any such indemnified party on account of any settlement of any claim
or action effected without the written consent of such indemnifying
party. The indemnifying party will not settle or compromise any claim
or action without the written consent of the indemnified party (which consent
shall not be unreasonably withheld).
6.4. Charter Protections;
Directors’ and Officers’ Liability Insurance.
6.4.1 All
rights to indemnification for acts or omissions occurring through the date
hereof now existing in favor of any of the Sellers as provided in the Company’s
Amended and Restated Certificate of Incorporation and/or by-laws shall survive
the execution of this Agreement and the Closing and shall continue in full force
and effect in accordance with their terms.
6.4.2 For
a period of either (i) six (6) years after the date hereof if the Company
consummates a Business Combination or (ii) three (3) years after the date hereof
if the Company dissolves and liquidates prior to the consummation of a Business
Combination, the Company shall cause to be maintained in effect the current
policies of directors’ and officers’ liability insurance maintained by the
Company (or policies of at least the same coverage and amounts containing terms
and conditions which are no less advantageous to the Sellers), with respect to
claims arising from facts and events that occurred through the date
hereof.
6.4.3 If
the Company or any of its successors or assigns (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving entity of
such consolidation or merger, or (ii) transfers or conveys all or substantially
all of its properties and assets to any Person, then, in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of the Company assume the obligations set forth in this Section
6.4.
10
ARTICLE
7
COVENANTS
7.1. No Creation of Liens with
Respect to Transferred Shares or Warrants. No Seller shall create or
allow to be created any Liens with respect to the Transferred Shares or
Warrants.
7.2. Release of Company and its
Officers and Directors. Sellers hereby release the
Company and its officers, directors and shareholders from any claims
they may have now or in the future, whether contractual, statutory or
otherwise, against any of the Company, its officers, directors and
shareholders relating to the Company or its securities, including but not
limited to (i) the formation of the Company, (ii) the operation of
the Company (including agreements between the Sellers and the Company) and
(iii) the dismissal of any Seller as an officer, director or employee of the
Company, if applicable. Notwithstanding the foregoing, nothing herein
shall be construed as a waiver or release of (x) any claim for indemnification
that any Seller may have against the Company regardless of whether such claim
arises after the date hereof or (y) any rights under this Agreement or any of
the agreements executed in connection herewith.
7.3. Assignment of Registration
Rights. Sellers hereby conditionally assign to the
Investor Sellers’ rights and obligations under that certain Registration Rights
Agreement dated as of November 30, 2007 among the Company and each of the
parties executing a signature page thereto with respect to the Warrants, the
shares of Common Stock underlying the Warrants, and the Transferred Shares, but
shall retain all such rights with respect to any Shares not being transferred to
the Investor.
7.4. Delivery of
Records. Promptly after the request of the Investor, Sellers
shall deliver all of the Company’s organization documents, minute and stock
record books and the corporate seal, books of account, general, financial, tax
and personnel records, invoices, shipping records, supplier lists,
correspondence and other documents, records and files and computer software and
programs to the Investor by delivering such documents to Xxxxx Xxxxx or to such
other place as may be requested by the Investor. Sellers may retain
copies of all of the foregoing.
7.5. Further Assurances.
Each party agrees that it will execute and deliver, or cause to be executed and
delivered, on or after the date of this Agreement, all such other documents and
instruments as are reasonably required for the performance of such party’s
obligations hereunder and will take all commercially reasonable actions as may
be necessary to consummate the transactions contemplated hereby and to
effectuate the provisions and purposes hereof.
ARTICLE
8
MISCELLANEOUS
8.1. Notices. All notices,
demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing and shall be delivered or sent, with the copies
indicated, by personal delivery, facsimile (with confirmation of receipt by
intended recipient and additional copy sent by overnight delivery service) or
overnight delivery service (by a reputable international carrier) to the parties
as follows (or at such other address as a party may specify by notice given
pursuant to this Section):
11
|
To
the Sellers:
|
American
Fund Advisors, Inc.
|
000 Xxxxx Xxxx Xxxx, Xxxxx
000
Xxxxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
|
To
the Company:
|
000 Xxxxx Xxxx Xxxx, Xxxxx
000
Xxxxx Xxxx, Xxx Xxxx
00000
Attention:
Xxxx Xxxx
Facsimile:
(000) 000-0000
|
In
either case, with a copy to:
|
Xxxxxxxx
Xxxxxx
|
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
Facsimile:
(000) 000-0000
|
To
the Investor:
|
Sang-Xxxx
Xxx
|
(135-270)
7th
Floor, SoftForum B/D.
000-0
Xxxxx-Xxxx,
Xxxxxxx-Xx,
Xxxxx 000-000 S. Korea
Facsimile:
x00-0-000-0000
|
With
a copy to:
|
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
|
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxx, Esq.
Facsimile:
(000) 000-0000
All
notices shall be deemed given and received one business day after their delivery
to the addresses for the respective party(ies), with the copies indicated, as
provided in this Section.
8.2. Entire Agreement.
This Agreement contains the sole and entire binding agreement among the parties
hereto with respect to the subject matter hereof and supersedes any and all
other prior written or oral agreements among them.
8.3. Amendment. No
amendment or modification of this Agreement shall be valid unless in writing and
duly executed by the parties affected by the amendment or
modification.
8.4. Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective representatives, heirs, successors and permitted
assigns.
8.5. Waiver. Waiver by any
party of any breach of any provision of this Agreement shall not be considered
as or constitute a continuing waiver or a waiver of any other breach of the same
or any other provision of this Agreement.
8.6. Captions. The
captions contained in this Agreement are inserted only as a matter of
convenience or reference and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any of its provisions.
12
8.7. Construction. In the
construction of this Agreement, whether or not so expressed, words used in the
singular or in the plural, respectively, include both the plural and the
singular and the masculine, feminine and neuter genders include all other
genders. Since all parties have engaged in the drafting of this
Agreement, no presumption of construction against any party shall
apply.
8.8. Section References.
All references contained in this Agreement to Sections shall be deemed to be
references to Sections of this Agreement, except to the extent that any such
reference specifically refers to another document. All references to
Sections shall be deemed also to refer to all subsections of such Sections, if
any.
8.9. Severability. In the
event that any portion of this Agreement is illegal or unenforceable, it shall
affect no other provisions of this Agreement, and the remainder of this
Agreement shall be valid and enforceable in accordance with its
terms.
8.10. Assignment. Neither
this Agreement nor any rights under this Agreement may be assigned by any party
without the written consent of all other parties; provided, however, the
Investor may assign this Agreement to an Affiliate or Affiliates of the
Investor.
8.11. Governing Law. This
Agreement and the interpretation of its terms shall be governed by the laws of
the State of New York, without application of conflicts of law
principles.
8.12. Attorneys’ Fees. The
Company and the Investor shall pay their respective attorneys’ fees and expenses
for the negotiation and preparation of this Agreement and the other agreements
contemplated by this Agreement.
8.13. Public Disclosure. No
party to this Agreement shall make any public disclosure or publicity release
pertaining to the existence of the subject matter contained in this Agreement
without notifying and consulting with the other parties; provided, however, that
notwithstanding the foregoing, each party shall be permitted to make required
filings with the SEC. With respect to the press release and Form 8-K
to be filed in connection with this transaction, the Company shall provide the
Sellers and the Investor with a copy of such release in advance and a reasonable
opportunity to comment thereon.
8.14. Currency. All
monetary amounts in this Agreement are stated in United States dollars ($) and
shall be paid in that currency. No changes shall be made in any of such amounts
based upon changes in the value of the United States dollar against any other
currency.
8.15. Execution in Counterparts;
Facsimile Signatures. This Agreement and any amendment, waiver
or consent hereto may be executed by the parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all such counterparts shall together constitute one and the same
instrument. All such counterparts may be delivered among the parties hereto by
facsimile or other electronic transmission, which shall not affect the validity
thereof.
8.16. Trust Account
Waiver. The Investor hereby waives any right, title, interest
or claim of any kind in or to any monies in the Trust Account (“Claim”), and the Investor
waives any Claim he may have in the future as a result of, or arising out of,
any negotiations, contracts or agreements with the Company and will not seek
recourse against the Trust Account for any reason whatsoever.
[Remainder of page intentionally left
blank; signature page to follow.]
13
The
parties have executed this Agreement as of the date set forth
above.
|
SELLERS:
|
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|
/s/ Xxxxx X. Xxxxxx
|
|||
|
Xxxxx
X. Xxxxxx
|
|||
|
/s/ Xxxx X. Xxxx
|
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|
Xxxx
X. Xxxx
|
|||
|
/s/ Xxxxxx Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
|||
|
/s/ Xxxxxx X. Xxxxxxxx
|
|||
|
Xxxxxx
X. Xxxxxxxx
|
|||
|
/s/ Xxxxxx Xxxxxx
|
|||
|
Xxxxxx
Xxxxxx
|
|||
|
/s/ Xxxx X. Xxxxxxxxxxx
|
|||
|
Xxxx
X. Xxxxxxxxxxx
|
|||
|
COMPANY:
|
|||
|
By:
|
/s/ Xxxx X. Xxxx
|
||
|
Name: Xxxx
X. Xxxx
|
|||
|
Title:
President
|
|||
|
INVESTOR:
|
|||
|
/s/ Xxxx-Xxxx Xxx
|
|||
|
Xxxx-Xxxx
Xxx
|
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