RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
Exhibit
10.8
RIGHT
OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “Agreement”)
is
made as of ___ (_________), 2008 by and among Indas Green Acquisition
Corporation, a Cayman Islands corporation (the “Company”);
and
Mission Biofuels Ltd. (“Mission”),
in
connection with the Company’s proposed public offering of units pursuant to a
registration statement on Form F-1, filed by the Company with the Securities
and
Exchange Commission (as amended, the “Registration
Statement”).
RECITALS
WHEREAS,
Mission is the Company’s sponsor;
WHEREAS,
because each of the Company and Mission will be seeking business opportunities
in the alternative energy, energy or environmental industries, the parties
have
made this Agreement to clarify the business opportunities for which each party
shall have the right of first refusal.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Right
of First Refusal.
For
the
term specified in
Section 2
of this
Agreement and subject to subsections (b), (c) and (d) of this Section
1,
Mission
hereby grants to the Company a right of first refusal as
follows:
(a) Mission
shall first present any investment or acquisition opportunity in a business
or
businesses in the alternative energy, energy or environmental industries,
including any business operating in the biodiesel sector, with the exception
of
biodiesel feedstocks, biodiesel plantations and biodiesel refining plants,
whose
aggregate fair market value is at least equal to 80% of the balance of the
Company’s trust account (as described in the Registration Statement) (the
“Threshold Test”), to a committee of the Company’s independent directors, and
will not enter into any agreement to purchase or invest in such business or
businesses until the Company’s committee of independent directors determines,
within the time frame and manner specified below, whether or not to pursue
such
business opportunity.
(b) Notwithstanding
anything to the contrary in this Agreement, the Company agrees that any such
business entity with respect to which Mission has initiated any contacts or
entered into any discussions or negotiations, formal or informal, regarding
Mission’s acquisition of, or investment in, such business prior to the
completion of the Company’s offering, as set forth in the Registration
Statement, will not be a potential acquisition target for the Company, unless
Mission declines to pursue such business opportunity and notifies the Company
of
the same in writing.
(c) After
review of any potential corporate opportunity, the Company may release the
right
of first refusal set forth in this Section 1(A) with respect to such corporate
opportunity. Decisions by the Company to release Mission to pursue such
corporate opportunity will be made by a majority of the Company’s independent
directors.
(d) Mission
and each of its partners, principals, directors, officers or employees who
become aware of a corporate opportunity which is subject to this Agreement
shall
provide written notice of the business opportunity to the Company pursuant
to
this right of first refusal within five (5) business days of its identification
of the corporate opportunity, including its determination as to whether the
corporate opportunity meets the Threshold Test. Any right of first refusal
granted shall expire ninety (90) days from the date of the written notice,
provided that, during such ninety (90)-day
period, the Company has failed to commence discussions with any third party
regarding a transaction.
2.
Term.
This
Agreement shall become effective on its execution and shall remain in effect
for
a period to expire upon the earlier of (i) the consummation by the Company
of a Business Combination as defined in the Registration Statement or
(ii) 24 months following the consummation of the Company’s offering (or 36
months if the Company’s shareholders approve a proposal to extend the Company’s
corporate existence by an additional 12 months) pursuant to the Registration
Statement.
3.
Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
To
the
Company:
Indas
Green Acquisition Corporation
Xxxxx
00-00
Xxx
Xxxxxxx Xxxx
Xxxxxxx
Xxxxx
Xxxxxxxxx
000000
Attn:
Xxxxxx Xxxxxxxx
with
copies to:
Ellenoff,
Xxxxxxxx & Schole LLP
000
Xxxx
00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx, Esq.
If
to
Mission:
Mission
Biofuels Ltd.
0xx
Xxxxx
00
Xx.
Xxxxxxx Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxxxxxx
Attn:
Xxxxxx Xxxxxx
Any
such
notice or communication shall be delivered by hand or by courier or sent
certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
a
notice delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was
given.
4.
Severability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.
5.
Assignment
and Waiver.
Neither
this Agreement nor any rights or obligations hereunder shall be assignable
or
otherwise subject to hypothecation by any of the parties hereto. The failure
of
any of the parties hereto to at any time enforce any of the provisions of this
Agreement shall not be deemed or construed to be a waiver of any such provision,
nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every
provision of this Agreement. No waiver of any breach, non-compliance or
non-fulfillment of any of the provisions of this Agreement shall be effective
unless set forth in a written instrument executed by the party or parties
against whom or which enforcement of such waiver is sought; and no waiver of
any
such breach, non-compliance or non-fulfillment shall be construed or deemed
to
be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
6.
Amendment.
This
Agreement may only be amended by written agreement of the parties
hereto.
7.
Survival.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this Section 7
are in
addition to the survivorship provisions of any other section of this
Agreement.
8.
Governing
Law.
This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the State of New York, without reference to rules relating to conflicts
of law.
9.
Effect
on Prior Agreements.
This
Agreement contains the entire understanding between the parties hereto and
supersedes in all respects any prior or other agreement or understanding
concerning the subject matter hereof between the Company and
Mission.
10.
Counterparts.
This
Agreement may be executed in two or more counterparts (including by facsimile),
each of which will be deemed an original, but all of which, taken together,
shall be deemed one document
11.
Mutual
Waiver of Jury Trial.
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST BENEFITS OF THE JUDICIAL SYSTEM,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
12.
Applicable
Law.
This
letter agreement shall be governed by and interpreted and construed in
accordance with the laws of the State of New York applicable to contracts formed
and to be performed entirely within the State of New York, without regard to
the
conflicts of law provisions thereof to the extent such principles or rules
would
require or permit the application of the laws of another
jurisdiction.
13.
Trust
Waiver.
Notwithstanding anything herein to the contrary, Mission hereby waives any
and
all right, title, interest or claim of any kind (“Claim”)
in or
to any distribution of the trust account (the “Trust
Account”)
in
which the proceeds of the offering and the proceeds of the sale of the warrants
issued to Mission will be deposited and held for the benefit of the public
shareholders of the offering, as described in greater detail in the Registration
Statement, and hereby agrees not to seek recourse, reimbursement, payment or
satisfaction for any Claim against the Trust Account for any reason
whatsoever.
14.
Third
Party Beneficiaries.
The
parties hereto hereby acknowledge that the underwriters of the offering,
including, without limitation, Chardan Capital Markets, LLC, are third party
beneficiaries of this Agreement and this Agreement may not be modified or
changed without the prior written consent of Chardan Capital Markets,
LLC.
[Signatures
Follow on Next Page.]
IN
WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
above.
INDAS
GREEN ACQUISITION CORPORATION
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By:
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/s/
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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MISSION
BIOFUELS LTD.
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By:
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/s/
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Executive
Director
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