FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
10.7
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”)
is
entered into as of the [∙] day of [∙], 2008, by and among BBV Vietnam S.E.A.
Acquisition Corp., a Xxxxxxxx Islands corporation (the “Company”)
and
the persons listed on Schedule
A
hereto
(each, an “Investor”).
WHEREAS,
certain initial shareholders beneficially own 1,293,750 shares (the
“Initial
Shareholders’ Shares”)
(which
includes 168,750 shares subject to forfeiture to the extent the underwriters’
over-allotment option is not exercised) of the Company’s common stock, par value
$0.0001 per share (the “Common
Stock”),
and
certain founders (as defined below; and together with the Initial Shareholders,
the “Investors”)
have
purchases pursuant to the terms of that certain Founder Warrant Purchase
Agreement, dated the date hereof, by and among the Company and the Founders,
1,017,857 founders’ warrants, each to purchase one share of Common Stock (the
“Founders’
Warrants”
and
together with the Initial Shareholders’ Shares and the shares of Common Stock
issuable upon exercise of the Founders’ Warrants, the “Investors’
Securities”);
WHEREAS,
the Investors may, in certain circumstances and subject to certain transfer
and
other restrictions transfer (or cause to be transferred) to Permitted
Transferees (as defined below) some or all of the Investors’ Securities;
and
WHEREAS,
the Investor and the Company desire to enter into this Agreement to provide
the
Investors with certain rights relating to the registration of the Investors’
Securities, and to provide for any Permitted Transferees who receive Investors’
Securities from time to time with the ability to accede to this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises, covenants
and agreements of the parties hereto, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01. Defined
Terms. As
used
in this Agreement, the following terms shall have the following
meanings:
“Adverse
Disclosure”
means
public disclosure of material non-public information, which disclosure, in
the
good faith judgment of the chief executive officer or principal financial
officer of the Company after consultation with counsel to the Company, (i)
would
be required to be made in any Registration Statement or prospectus in order
for
the applicable Registration Statement or prospectus not to contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein (in the case of any prospectus and any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading, (ii) would not be required to be made at such time if the
Registration Statement were not being filed and (iii) the Company has a bona
fide business purpose for not publicly making it.
“Agreement”
has
the
meaning set forth in the preamble hereto.
“business
day”
means
any day, except a Saturday, Sunday or legal holiday on which the banking
institutions in the City of New York are authorized or obligated by law or
executive order to close.
1
“Common
Stock”
has
the
meaning set forth in the recitals.
“Company”
has
the
meaning set forth in the preamble and shall include the Company’s successors by
merger, acquisition, reorganization or otherwise.
“Demand
Registration”
has
the
meaning set forth in Section 2.01(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor thereto,
and
any rules and regulations promulgated thereunder, all as the same shall be
in
effect from time to time.
“FINRA”
means
the Financial Industry Regulatory Authority.
“Founder”
means
the persons listed on Schedule
A
as
Founders, who purchased the Founder’s Warrants.
“holder”
or
“holders”
means
any holder or holders of Registrable Securities who is a party hereto or who
otherwise agrees in writing to be bound by the provisions of this Agreement
pursuant to Section 3.03.
“Incidental
Registration”
has
the
meaning set forth in Section 2.02(a).
“Initial
Business Combination”
means
the acquisition by the Company, through a merger, stock exchange, asset
acquisition, reorganization or similar business transactions or contractual
arrangements, of one or more businesses or assets, as more fully described
in
the prospectus.
“Loss”
has
the
meaning set forth in Section 2.09(a).
“Permitted
Transferees”
means
(i) an entity’s beneficiaries upon its liquidation, (ii) family members and
trusts of permitted assignees for estate planning purposes, (iii) a person
who
becomes the transferee by virtue of the laws of descent and distribution upon
death, or (v) officers, directors and employees, or their affiliates, in each
case where the transferee agrees to the terms of the escrow agreement.
“Person”
shall
be construed as broadly as possible and shall include an individual,
corporation, association, partnership (including a limited liability partnership
or a limited liability limited partnership), limited liability company, estate,
trust, joint venture, unincorporated organization or a government or any
department, agency or political subdivision thereof.
“prospectus”
means
the prospectus included in any Registration Statement, all amendments and
supplements to such prospectus and all material incorporated by reference in
such prospectus.
“Registrable
Securities”
means
the Initial Shareholders’ Shares, the Founders’ Warrants and the shares of
Common Stock issuable upon exercise of the Founders’ Warrants, in each case
after their respective Release Dates; provided, however, that any of the
foregoing securities shall cease to be Registrable Securities to the extent
that
(i) a Registration Statement with respect to their sale has been declared
effective under the Securities Act and they have been sold, transferred,
disposed of or exchanged pursuant to such Registration Statement, (ii) they
have
been otherwise transferred pursuant to Rule 144 under the Securities Act (or
any
similar rule or regulation then in force), new certificates for them not bearing
a legend restricting transfer under the Securities Act shall have been delivered
by the Company and they may be publicly resold without volume or method of
sale
restrictions without registration under the Securities Act, or (iii) they have
ceased to be outstanding. For purposes of this Agreement, the Initial
Shareholders’ Shares and the shares of Common Stock issuable upon exercise of
the Founders’ Warrants shall together constitute one “class” of Registrable
Securities and the Founders’ Warrants shall constitute another class of
Registrable Securities, provided that no Registrable Securities shall be part
of
the relevant class until the Release Date for such Registrable Securities.
A
“percentage” (or a “majority”) of the Registrable Securities or any class
thereof (or, where applicable, of any other securities) shall be determined
based on the total number of such securities outstanding at the relevant time.
2
“Registration”
means
a
registration of the Company’s securities for sale to the public under a
Registration Statement.
“Registration
Statement”
means
any registration statement (other than a registration statement on Form S-4
or
Form S-8) of the Company for a public offering of the Company’s securities filed
with, or to be filed with, the SEC under the rules and regulations promulgated
under the Securities Act, including the prospectus, amendments and supplements
to such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
“Release
Date”
means,
with respect to the Initial Shareholders’ Shares, the date that is six (6)
months after the consummation of the Initial Business Combination, and with
respect to the Founders’ Warrants and the shares of Common Stock issuable upon
exercise thereof, the date that is ninety (90) days after consummation of the
Initial Business Combination.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor thereto, and any
rules
and regulations promulgated thereunder, all as the same shall be in effect
from
time to time.
“Underwritten
Offering”
means
a
registration in which securities of the Company are sold to an underwriter
or
underwriters on a firm commitment basis for reoffering to the public.
Section
1.02. General
Interpretive Principles.
Whenever used in this Agreement, except as otherwise expressly provided or
unless the context otherwise requires, any noun or pronoun shall be deemed
to
include the plural as well as the singular and to cover all genders. The name
assigned to this Agreement and the section captions used herein are for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect hereof. Unless otherwise specified, the terms “hereof,”
“herein,” “hereunder” and similar terms refer to this Agreement as a whole
(including the exhibits, schedules and disclosure statements hereto), and
references herein to Sections refer to Sections of this Agreement.
ARTICLE
2
REGISTRATION
RIGHTS
Section
2.01. Demand
Registrations.
(a) Demand
by Holders.
(i) At
any
time and from time on or after the applicable Release Date, the holders of
not
less than a majority of any class of the Registrable Securities may make a
written request to the Company for registration of all or part of each such
class of Registrable Securities held by those holders. Any such requested
registration shall be referred to as a “Demand
Registration.”
Each
request for a Demand Registration shall specify the class(es) and aggregate
amount(s) of Registrable Securities to be registered and the intended methods
of
distribution thereof.
3
(ii) Within
five (5) business days following receipt of any request for a Demand
Registration, the Company shall deliver written notice of such request to all
other holders of Registrable Securities of the class or classes to be
registered. Thereafter, the Company shall include in such Demand Registration
any additional Registrable Securities of each such class which the holder or
holders thereof have requested in writing be included in such Demand
Registration, provided
that all
such requests have been received by the Company within ten (10) business days
of
the Company’s having sent the applicable notice to such holder or holders (each
such holder, including the Registrable Securities in such Demand Registration,
a
“Demanding
Holder”).
All
such requests shall specify the class and aggregate amount of Registrable
Securities to be registered and the intended method of distribution. The Company
may include in such registration additional securities of the class or classes
of the Registrable Securities to be registered thereunder, including securities
to be sold for the Company’s own account or for the account of Persons who are
not holders of Registrable Securities.
(iii) As
promptly as practicable, and, in any event, within ninety (90) days following
receipt of a request for a Demand Registration, the Company shall file a
Registration Statement relating to such Demand Registration and thereafter
the
Company shall use its reasonable best efforts to cause such Registration
Statement to be declared effective under the Securities Act.
(b) Limitation
on Demand Registrations.
In no
event shall the Company be required to effect more than two (2) Demand
Registrations. In addition, the Company shall not be required to file a
Registration Statement for a Demand Registration at any time during the 12-month
period following the effective date of another Registration Statement filed
pursuant to this Section 2.01.
(c) Demand
Withdrawal.
A
majority-in-interest of the Demanding Holders may withdraw their Registrable
Securities from a Demand Registration at any time. In such case, the Company
shall cease all efforts to secure registration and such registration shall
be
deemed a Demand Registration for purposes of Section 2.01(b) unless the
withdrawal is based on the reasonable determination of the Demanding Holders
that there has been, since the date of such request, a material adverse change
in the business or prospects of the Company or in general market conditions
and
the Demanding Holders who requested such registration shall have paid or
reimbursed the Company for all of the reasonable out-of-pocket fees and expenses
incurred by the Company in connection with the withdrawn registration.
(d) Effective
Registration.
The
Company shall be deemed to have effected a Demand Registration if the applicable
Registration Statement is declared effective by the SEC and remains effective
for not less than 180 days (or such shorter period as will terminate when all
Registrable Securities covered by such Registration Statement have been sold
or
withdrawn) 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 SEC 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)
holders of a majority of the relevant class or classes of Registrable Securities
thereafter elect to continue the offering; provided,
further,
that
the Company shall not be obligated to file a second Registration Statement
until
a Registration Statement that has been filed is counted as a Demand Registration
or is terminated.
(e) Suspension
of Registration.
If the
filing, initial effectiveness or continued use of a Registration Statement
in
respect of a Demand Registration at any time would require the Company to make
an Adverse Disclosure or would require the inclusion in such Registration
Statement of financial statements that are unavailable to the Company for
reasons beyond the Company’s control, the Company may, upon giving prompt
written notice of such action to the holders, delay the filing or initial
effectiveness of, or suspend use of, such Registration Statement for the
shortest possible period of time determined in good faith by the Company to
be
necessary for such purpose. In the event the Company exercises its rights under
the preceding sentence, the holders agree to suspend, immediately upon their
receipt of the notice referred to above, their use of the prospectus relating
to
the Demand Registration in connection with any sale or offer to sell Registrable
Securities. The Company shall immediately notify the holders of the expiration
of any period during which it exercised its rights under this Section 2.01(e)
.
4
(f) Underwritten
Offering.
If the
holders of not less than a majority of the Registrable Securities of any class
that is included in any offering pursuant to a Demand Registration so elect,
the
offering of all of the Registrable Securities of that class shall be in the
form
of an Underwritten Offering and the right of any holder to include Registrable
Securities of that class in the Demand Registration shall be conditioned upon
such holder’s participation in the Underwritten Offering. The holders of a
majority of the class of Registrable Securities included in such Underwritten
Offering shall, in consultation with the Company, have the right to select
the
managing underwriter or underwriters for the offering, subject to the right
of
the Company should it so choose to select one co-managing underwriter reasonably
acceptable to such holders. All holders proposing to distribute their
Registrable Securities through such an underwriting shall enter into an
underwriting agreement in customary form with the underwriter(s) selected for
such underwriting.
(g) Reduction
of Offering.
If the
managing underwriter or underwriters of a proposed Underwritten Offering of
a
class of Registrable Securities included in a Demand Registration, inform the
holders of such Registrable Securities and the Company in writing that, in
its
or their opinion, the number of securities of such class requested to be
included in such Demand Registration, including securities of the Company for
its own account or for the account of other Persons who are not holders of
Registrable Securities that the Company desires to sell and any securities
as to
which registration has been requested pursuant to written piggy-back
registration rights (as described in Section 2.02 below), exceeds the maximum
dollar amount or maximum number of securities, as applicable, that can be sold
in such offering without being likely to have a significant adverse effect
on
the price, timing or distribution of the class of securities offered or the
market for the class of securities offered (such maximum dollar amount or
maximum number of securities, as applicable, the “Maximum
Number of Securities”),
then
the
Company shall include in such registration:
(i) First,
Registrable Securities as to which Demand Registration has been requested by
the
Demanding Holders, in an amount up to but not exceeding the Maximum Number
of
Securities (allocated pro
rata
among
the holders who have requested participation in the Demand Registration, based,
for each such holder, on the percentage derived by dividing (x) the number
of
Registrable Securities of such class which such holder has requested to include
in such Demand Registration by (y) the aggregate number of Registrable
Securities of such class which all such holders have requested to include);
(ii) second,
to the extent that the Maximum Number of Securities has not been reached under
the foregoing clause (i), securities that the Company desires to sell that
can
be sold without exceeding the Maximum Number of Securities;
(iii) third,
to
the extent that the Maximum Number of Securities has not been reached under
the
foregoing clauses (i) and (ii), securities for the account of other Persons
that
the Company is obligated to register pursuant to written contractual
arrangements with such Persons and that can be sold without exceeding the
Maximum Number of Securities; and
5
(iv) fourth,
to the extent that the Maximum Number of Securities have not been reached under
the foregoing clauses (i), (ii), and (iii), securities that other security
holders of the Company desire to sell that can be sold without exceeding the
Maximum Number of Securities.
To
the
extent that any Registrable Securities requested to be registered are excluded
pursuant to the foregoing provisions, the holders shall have the right to one
additional Demand Registration under this Section 2.01.
(h) Registration
Statement Form.
Registrations under this Section 2.01 shall be on such appropriate registration
form of the SEC (i) as shall be selected by the Company and as shall be
reasonably acceptable to the holders of a majority of each class of Registrable
Securities requesting participation in the Demand Registration, and (ii) as
shall permit the disposition of the Registrable Securities in accordance with
the intended method or methods of disposition specified in the applicable
holders’ requests for such registration. Notwithstanding the foregoing, if,
pursuant to a Demand Registration, (x) the Company proposes to effect
registration by filing a Registration Statement on Form S-3, (y) such
registration is in connection with an Underwritten Offering, and (z) the
managing underwriter or underwriters shall advise the Company in writing that,
in its or their opinion, the use of another form of registration statement
(or
the inclusion, rather than the incorporation by reference, of information in
the
prospectus related to a Registration Statement on Form S-3) is of material
importance to the success of such proposed offering, then such registration
shall be effected on such other form (or such information shall be so included
in such prospectus).
Section
2.02. Incidental
Registrations (“Piggy-Back”
Registrations)
(a) Participation.
(i) If
at any
time on or after the first Release Date, the Company proposes to file a
Registration Statement with respect to any offering of its securities for its
own account or for the account of any holders of its securities (or by the
Company and by security holders of the Company, including, without limitation,
pursuant to Section 2.01 hereof), other than (A) a registration of securities
relating solely to an offering and sale to employees or directors of the Company
pursuant to any employee stock plan or other employee benefit plan arrangement,
(B) a registration on Form S-4 or S-8 or any successor form to such forms,
(C)
an exchange offer or offering of securities solely to the Company’s existing
shareholders, (D) an offering of debt that is convertible into equity
securities, (E) a dividend reinvestment plan, or (F) solely in connection with
a
merger, consolidation or non-capital raising bona
fide
business
transaction, then, as soon as practicable (but in no event less than ten (10)
business days prior to the proposed date of filing such Registration Statement),
the Company shall give written notice of such proposed filing to all holders
of
Registrable Securities, which notice shall describe the amount and class 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 such notice shall offer the holders of such
Registrable Securities the opportunity to register such number of Registrable
Securities as each such holder may request in writing (an “Incidental
Registration”).
Subject to Section 2.02(b), the Company shall include in such Registration
Statement all such Registrable Securities requested to be included therein
within five (5) business days after the receipt by such holder of any such
notice, on the same terms and conditions as any similar securities of the
Company. If at any time after giving written notice of its intention to register
any securities and prior to the effective date of the Registration Statement
filed in connection with such registration, the Company shall determine for
any
reason not to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to each holder
of Registrable Securities and, (x) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, and (y) in the case of a
determination to delay registering, shall be permitted to delay registering
any
Registrable Securities for the same period as the delay in registering such
other securities.
6
(ii) If
the
offering pursuant to an Incidental Registration is to be an Underwritten
Offering, then each holder making a request for its Registrable Securities
to be
included therein must, and the Company shall use its best reasonable efforts
to
make such arrangements with the underwriters so that each such holder may,
participate in such Underwritten Offering on the same terms and conditions
as
the Company and other Persons selling securities in such Underwritten Offering.
If the offering pursuant to such registration is to be on any other basis,
then
each holder making a request for an Incidental Registration pursuant to this
Section 2.02(a) must participate in such offering on such basis.
(iii) Each
holder of Registrable Securities shall be permitted to withdraw all or part
of
such holder’s Registrable Securities from an Incidental Registration at any
time.
(b) Reduction
of Incidental Registration.
If the
managing underwriter or underwriters of any proposed Underwritten Offering
of a
class of securities included in an Incidental Registration (or in the case
of an
Incidental Registration not being underwritten, the Company) informs the holders
of Registrable Securities of any class sought to be included in such
registration in writing that, in its or their opinion, the total amount or
kind
of securities which such holders and any other Persons intend to include in
such
offering exceeds the number which can be sold in such offering without being
likely to have a significant adverse effect on the price, timing or distribution
of the class or classes of the securities offered or the market for the class
or
classes of securities offered or the Company’s common stock, then the securities
of each class to be included in such registration shall be allocated as follows:
(i) if
the
registration is undertaken for the Company’s account: (x) first, the securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Securities, and (y) second, to the extent that the Maximum Number
of
Securities has not been reached under the foregoing clause (x), securities,
if
any, including the Registrable Securities, as to which registration has been
requested pursuant to written contractual incidental registration rights of
security holders (including this Agreement) that can be sold without exceeding
the Maximum Number of Securities (pro
rata
in
accordance with the number of shares or other securities which each such Person
has actually requested to be included in such registration);
(ii) if
the
registration is a demand registration undertaken by Persons with demand rights
pursuant to a written contractual arrangement other than this Agreement, (w)
first, securities for the account of the demanding Persons that can be sold
without exceeding the Maximum Number of Securities, (x) second, to the extent
that the Maximum Number of Securities has not been reached under the foregoing
clause (w), securities that the Company desires to sell and that can be sold
without exceeding the Maximum Number of Securities, (y) third, to the extent
that the Maximum Number of Securities has not been reached under the foregoing
clauses (w) and (x), securities (including the Registrable Securities) as to
which registration has been requested pursuant to a written contractual
incidental registration rights of security holders (including this Agreement)
that can be sold without exceeding the Maximum Number of Securities
(pro
rata
in
accordance with the number of shares or other securities which each such Person
has actually requested to be included in such registration), and (z) fourth,
to
the extent that the Maximum Number of Securities have not been reached under
the
foregoing clauses (w), (x) and (y), securities that other security holders
desire to sell without exceeding the Maximum Number of Securities.
7
Section
2.03. Registrations
on Form S-3.
(a) Filing.
The
holders of Registrable Securities may at any time and from time to time on
or
after the applicable Release Date, request in writing that the Company register
the resale of any or all of such Registrable Securities on Form S-3 or a
successor or other appropriate, similar short-form registration which may be
available at such time (“Form
S-3”);
provided,
however,
that
(i) the Company shall not be obligated to effect such request through an
Underwritten Offering and (ii) the Company shall not be obligated to effect
such
a request if the Company has within the preceding twelve (12) months effected
a
registration on Form S-3. Upon receipt of such written request, the Company
will
promptly give written notice of the proposed registration to all other holders
of Registrable Securities, and, as soon as practicable thereafter, effect the
registration of all or such portion of such holder’s or holders’ Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other holder or holders joining in such
request as are specified in a written request given within fifteen (15) business
days after receipt of such written notice from the Company; provided,
however,
that
the Company shall not be obligated to effect any such registration pursuant
to
this Section 2.03: (i) if Form S-3 is not available for such offering; or (ii)
if the holders of the Registrable Securities, together with the holders of
any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities at an aggregate offering price to the
public of less than $[500,000]. Registrations effected pursuant to this Section
2.03 shall not be counted as Demand Registrations effected pursuant to Section
2.01.
(b) Suspension
of Registration.
If the
filing, initial effectiveness or continued use of Form S-3 at any time would
require the Company to make an Adverse Disclosure or would require the inclusion
in such Form S-3 of financial statements that are unavailable to the Company
for
reasons beyond the Company’s control, the Company may, upon giving prompt
written notice of such action to the holders, delay the filing or initial
effectiveness of, or suspend use of, the Form S-3 for the shortest period of
time determined in good faith by the Company to be necessary for such purpose.
In the event the Company exercises its rights under the preceding sentence,
the
holders agree to suspend, immediately upon their receipt of the notice referred
to above, their use of the prospectus relating to the registration on such
Form
S-3 in connection with any sale or offer to sell Registrable Securities and
agree not to disclose to any other Person the fact that the Company has
exercised such rights or any related facts. The Company shall immediately notify
the holders upon the expiration of any period during which it exercised its
rights under this Section 2.03(b).
Section
2.04. Registration
Procedures.
(a) In
connection with the Company’s registration obligations in this Agreement, the
Company will, subject to the limitations set forth herein, use its reasonable
best efforts to effect and, once effective, to keep such Registration Statement
effective so as to permit the sale of the applicable Registrable Securities
in
accordance with the intended method or methods of distribution thereof as
expeditiously as reasonably practicable, and in connection therewith the Company
will:
(i) before
filing a Registration Statement or prospectus, or any amendments or supplements
thereto and in connection therewith, furnish to the underwriter or underwriters,
if any, and to the holders of the Registrable Securities included in such
registration, and such holders’ legal counsel, copies of all documents prepared
to be filed, which documents will be subject to the review of such underwriters
and such holders and their counsel and, except in the case of a registration
under Section 2.02, will not file any Registration Statement or prospectus
or
amendments or supplements thereto to which a majority of such holders or the
underwriter or underwriters, if any, shall reasonably object;
8
(ii) prepare
and file with the SEC such amendments or supplements to the applicable
Registration Statement or prospectus as may be (A) reasonably requested by
any
participating holder (to the extent such request relates to information relating
to such holder), (B) necessary to keep such registration effective for the
period of time required by this Agreement, or (C) reasonably requested by the
holders of a majority of any class of the participating Registrable Securities;
(iii) notify
the selling holders of Registrable Securities and the managing underwriter
or
underwriters, if any, and (if requested) confirm such advice in writing, as
soon
as reasonably practicable after notice thereof is received by the Company (A)
when the applicable Registration Statement or any amendment thereto has been
filed or becomes effective and when the applicable prospectus or any amendment
or supplement thereto has been filed, (B) of any written comments by the SEC
or
any request by the SEC or any other federal or state governmental authority
for
amendments or supplements to such Registration Statement or prospectus or for
additional information, (C) of the issuance by the SEC or any other governmental
agency or court of any stop order suspending the effectiveness of such
Registration Statement or any order preventing or suspending the use of any
preliminary or final prospectus or the initiation or threat of any proceedings
for such purposes, and (D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation or threat
of any proceeding for such purpose;
(iv) promptly
notify each selling holder of Registrable Securities and the managing
underwriter or underwriters, if any, when the Company becomes aware of the
happening of any event as a result of which the applicable Registration
Statement or prospectus (as then in effect) contains any untrue statement of
a
material fact or omits to state a material fact necessary to make the statements
therein (in the case of the prospectus and any preliminary prospectus, in light
of the circumstances under which they were made) not misleading or, if for
any
other reason it shall be necessary to amend or supplement such Registration
Statement or prospectus in order to comply with the Securities Act and, in
either case as promptly as reasonably practicable thereafter, prepare and file
with the SEC an amendment or supplement to such Registration Statement or
prospectus which will correct such statement or omission or effect such
compliance;
(v) make
every reasonable effort to prevent or obtain at the earliest possible moment
the
withdrawal of any stop order with respect to the applicable Registration
Statement or other order suspending the use of any preliminary or final
prospectus;
(vi) promptly
incorporate in a prospectus supplement or post-effective amendment to the
applicable Registration Statement such information as the managing underwriter
or underwriters, if any, or the holders of a majority of the Registrable
Securities of the class being sold agree should be included therein relating
to
the plan of distribution with respect to such Registrable Securities; and make
all required filings of such prospectus supplement or post-effective amendment
as soon as reasonably practicable after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(vii) furnish
to each selling holder of Registrable Securities and each managing underwriter,
if any, without charge, as many conformed copies as such holder or managing
underwriter may reasonably request of the applicable Registration Statement;
9
(viii) deliver
to each selling holder of Registrable Securities and each managing underwriter,
if any, without charge, as many copies of the applicable prospectus (including
each preliminary prospectus) as such holder or managing underwriter may
reasonably request (its being understood that the Company consents to the use
of
the prospectus by each of the selling holders of Registrable Securities and
the
underwriter or underwriters, if any, in connection with the offering and sale
of
the Registrable Securities covered by the prospectus) and such other documents
as such selling holder or managing underwriter may reasonably request in order
to facilitate the disposition of the Registrable Securities by such holder
or
underwriter;
(ix) on
or
prior to the date on which the applicable Registration Statement is declared
effective, use its reasonable best efforts to register or qualify such
Registrable Securities for offer and sale under the securities or “Blue Sky”
laws of each state and other jurisdiction of the United States, as any such
selling holder or underwriter, if any, or their respective counsel reasonably
requests in writing, and do any and all other acts or things reasonably
necessary or advisable to keep such registration or qualification in effect
so
as to permit the commencement and continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution
of
the Registrable Securities covered by the Registration Statement; provided,
however,
that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
(x) cooperate
with the selling holders of Registrable Securities and the managing underwriter,
underwriters or agent, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends;
(xi) not
later
than the effective date of the applicable Registration Statement, provide a
CUSIP number for all Registrable Securities and provide the applicable transfer
agent with printed certificates for the Registrable Securities which
certificates shall be in a form eligible for deposit with The Depository Trust
Company;
(xii) obtain
for delivery to the holders of each class of Registrable Securities being
registered and to the underwriter or underwriters, if any, an opinion or
opinions from counsel for the Company dated the effective date of the
Registration Statement or, in the event of an Underwritten Offering, the date
of
the closing under the underwriting agreement, in customary form, scope and
substance, at a minimum to the effect that the Registration Statement has been
declared effective and that no stop order is in effect, which counsel and
opinions shall be reasonably satisfactory to a majority of the holders of each
such class and underwriter or underwriters, if any, and their respective
counsel;
(xiii) in
the
case of an Underwritten Offering, obtain for delivery to the Company and the
underwriter or underwriters, if any, with copies to the holders of Registrable
Securities included in such registration, such cold comfort letter(s) from
the
Company’s independent registered public accounting firm in customary form and
covering such matters of the type customarily covered by cold comfort letters
as
the managing underwriter or underwriters reasonably request;
(xiv) cooperate
with each seller of Registrable Securities and each underwriter or agent, if
any, participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
the
FINRA;
10
(xv) use
its
reasonable efforts to comply with all applicable rules and regulations of the
SEC and make generally available to its security holders, as soon as reasonably
practicable (but not more than 15 months) after the effective date of the
applicable Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xvi) provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by the applicable Registration Statement from and after
a
date not later than the effective date of such Registration Statement;
(xvii) cause
all
Registrable Securities of a class covered by the applicable Registration
Statement to be listed on each securities exchange on which any of the Company’s
securities of such class are then listed or quoted and on each inter-dealer
quotation system on which any of the Company’s securities of such class are then
quoted;
(xviii) make
available upon reasonable notice at reasonable times and for reasonable periods
for inspection by a representative appointed by the holders of a majority of
the
Registrable Securities of each class covered by the applicable Registration
Statement, by any managing underwriter or underwriters participating in any
disposition to be effected pursuant to such Registration Statement and by any
attorney, accountant or other agent retained by such sellers or any such
managing underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company’s officers, directors and employees and the independent public
accountants who have certified its financial statements to make themselves
available to discuss the business of the Company and to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or
agent in connection with such Registration Statement as shall be necessary
to
enable them to exercise their due diligence responsibility (subject to the
entry
by each party referred to in this clause (xviii) into customary confidentiality
agreements in a form reasonably acceptable to the Company); and
(xix) in
the
case of an Underwritten Offering, cause senior executive officers of the Company
to participate in customary “road show” presentations that may be reasonably
requested by the managing underwriter in any such Underwritten Offering and
otherwise to facilitate, cooperate with, and participate in each proposed
offering contemplated herein and customary selling efforts related thereto.
(b) The
Company may require each selling holder of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Securities and such other information
relating to such holder and its ownership of the applicable Registrable
Securities as the Company may from time to time reasonably request. Each holder
of Registrable Securities agrees to furnish such information to the Company
and
to cooperate with the Company as necessary to enable the Company to comply
with
the provisions of this Agreement. The Company shall have the right to exclude
any holder that does not comply with the preceding sentence from the applicable
registration.
11
Section
2.05. Underwritten
Offerings.
(a) Underwriting
Agreements.
If
requested by the underwriters for any Underwritten Offering requested by holders
pursuant to Section 2.01 or Section 2.03, the Company and the holders of
Registrable Securities to be included therein shall enter into an underwriting
agreement with such underwriters, such agreement to be reasonably satisfactory
in substance and form to the Company, the holders of a majority of each class
of
the Registrable Securities to be included in such Underwritten Offering and
the
underwriters, and to contain such terms and conditions as are generally
prevailing in agreements of that type, including, without limitation,
indemnities no less favorable to the recipient thereof than those provided
in
Section 2.09. The holders of any Registrable Securities to be included in any
Underwritten Offering pursuant to Section 2.02 shall enter into such an
underwriting agreement at the request of the Company. All of the representations
and warranties and the other agreements by and on the part of the Company to
and
for the benefit of the underwriters included in any such underwriting agreement
shall also be made to and for the benefit of such holders, and any or all of
the
conditions precedent to the obligations of the underwriters under such
underwriting agreement shall be conditions precedent to the obligations of
such
holders. No holder shall be required in any such underwriting agreement to
make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such
holder, such holder’s Registrable Securities, such holder’s intended method of
distribution and any other representations required by law.
(b) Price
and Underwriting Discounts.
In the
case of an Underwritten Offering requested by holders pursuant to Section 2.02
or Section 2.03, the price, underwriting discount and other financial terms
of
the related underwriting agreement for each class of Registrable Securities
shall be determined by the holders of a majority of such class of Registrable
Securities. In the case of any Underwritten Offering pursuant to Section 2.02,
such price, discount and other terms shall be determined by the Company, subject
to the right of the holders to withdraw their request to participate in the
registration pursuant to Section 2.02(a)(iii) after being advised of such price,
discount and other terms.
(c) Participation
in Underwritten Offerings.
No
Person may participate in an Underwritten Offering unless such Person (i) agrees
to sell such Person’s securities on the basis provided in the underwriting
arrangements approved by the Persons entitled to approve such arrangements
and
(ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section
2.06. No
Inconsistent Agreements; Additional Rights.
The
Company will not enter into, and is not currently a party to, any agreement
that
is inconsistent with the rights granted to the holders of Registrable Securities
by this Agreement.
Section
2.07. Obligation
to Suspend Distribution.
(a) Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening
of
any events of the kind described in Sections 2.04(a)(iii)(C), 2.04(a)(iii)(D)(in
any applicable state) or 2.04(a)(iv), such holder will discontinue disposition
of its Registrable Securities pursuant to the Registration Statement, in the
case of Section 2.04(a)(iv), until the holder receives copies of the
supplemented or amended prospectus contemplated by Section 2.04(a)(iv), or
in
any case until the holder is advised in writing by the Company that the use
of
the prospectus may be resumed, and receives copies of any additional or
supplemental filings that are incorporated by reference in the prospectus and,
if so directed by the Company, the holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
holder’s possession, of the prospectus covering such Registrable Securities that
are current at the time of the receipt of such notice. In the event that the
Company shall give any such notice in respect of a Demand Registration, the
period during which the applicable Registration Statement is required to be
maintained effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 2.04(a)(iv) or is advised in writing by the Company
that
the use of the prospectus may be resumed.
12
(b) In
the
case of a resale registration on Form S-3 pursuant to Section 2.03, upon any
suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company’s board of directors, of the ability of all
“insiders” covered by such program to transact in the Company’s securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until the
restriction on the ability of “insiders” to transact in the Company’s securities
is removed.
Section
2.08. Registration
Expenses.
(a) The
Company shall pay all of the expenses set forth in this paragraph (a) in
connection with a registration under this Agreement of Registrable Securities.
Such expenses are (i) all registration and filing fees, and any other fees
and
expenses associated with filings required to be made with the SEC or the FINRA,
(ii) all fees and expenses of compliance with state securities or “Blue Sky”
laws, (iii) all printing, duplicating, word processing, messenger, telephone,
facsimile and delivery expenses (including expenses of printing certificates
for
the Registrable Securities in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses), (iv) all fees and disbursements
of
counsel for the Company and of all independent certified public accountants
of
the Company, (v) Securities Act liability insurance or similar insurance if
the
Company so desires and (vi) all fees and expenses incurred in connection with
the listing of the Registrable Securities on any securities exchange or the
quotation of the Registrable Securities on any inter-dealer quotation system.
In
addition, in all cases the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any audit and the fees
and expenses of any other Persons retained by the Company, including any special
experts. In addition, the Company shall pay all reasonable fees and
disbursements of one legal counsel selected by the holders of a majority of
the
Registrable Securities being registered. However, 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.
(b) The
Company shall not be required to pay any other costs or expenses in the course
of the transactions contemplated hereby, including underwriting discounts and
commissions and transfer taxes attributable to the sale of Registrable
Securities and the fees and expenses of any counsel to any holder of Registrable
Securities other than as provided pursuant to the last sentence of the preceding
paragraph (a), or of counsel to the underwriters.
Section
2.09. Indemnification.
(a) Indemnification
by the Company.
The
Company agrees to indemnify and hold harmless, to the full extent permitted
by
law, each holder of Registrable Securities and their respective officers,
directors, employees, advisors and agents and each Person who controls (within
the meaning of the Securities Act or the Exchange Act) such Persons from and
against any and all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof, whether or not such indemnified party is a
party
thereto) and expenses (including reasonable costs of investigation and legal
expenses), joint or several (each, a “Loss”
and
collectively “Losses”),
arising out of or based upon (i) any untrue or alleged untrue statement of
a
material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act (including
any
final, preliminary or summary prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein) or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of a prospectus or preliminary prospectus, in light of the
circumstances under which they were made) not misleading; provided,
however,
that
the Company shall not be liable to any indemnified party in any such case to
the
extent that any such Loss arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission made in any such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by such holder expressly for use in the
preparation thereof; and provided,
further,
that
the Company will not be liable to any indemnified party in any case to the
extent that any such Loss arises out of or is based upon any untrue statement
or
alleged untrue statement or omission or alleged omission made in any final,
preliminary or summary prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in an amendment or
supplement to such prospectus which has been made available to the holders
and
the relevant holder of Registrable Securities fails to deliver such prospectus
as so amended or supplemented, if such delivery is required under applicable
law
or the applicable rules of any securities exchange, prior to or concurrently
with the sales of the Registrable Securities to the Person asserting such loss,
claim, damage, liability or expense. This indemnity shall be in addition to
any
liability the Company may otherwise have.
13
(b) Indemnification
by the Holders.
Each
selling holder of Registrable Securities agrees (severally and not jointly)
to
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors and officers and each Person who controls the Company (within
the
meaning of the Securities Act and the Exchange Act) from and against any Losses
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement under which
such Registrable Securities were registered under the Securities Act (including
any final, preliminary or summary prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), or necessary to make the statements therein (in the case of a
prospectus or preliminary prospectus, in light of the circumstances under which
they were made) not misleading, to the extent, but only to the extent, that
such
untrue statement or omission had been contained in any information furnished
in
writing by such selling holder to the Company specifically for inclusion in
such
Registration Statement and was not corrected in a subsequent writing prior
to or
concurrently with the sale of the Registrable Securities to the Person asserting
such loss, claim, damage, liability or expense. This indemnity shall be in
addition to any liability such holder may otherwise have. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on
behalf of the Company or any indemnified party. In no event shall the liability
of any selling holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such holder under the sale
of
the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
Any
Person entitled to indemnification hereunder will (i) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification (provided,
however,
that
any delay or failure to so notify the indemnifying party shall relieve the
indemnifying party of its obligations hereunder only to the extent, if at all,
that it is actually and materially prejudiced by reason of such delay or
failure) and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party;
provided,
however,
that
any Person entitled to indemnification hereunder shall have the right to select
and employ separate counsel and to participate in the defense of such claim,
but
the fees and expenses of such counsel shall be at the expense of such Person
unless (A) the indemnifying party has agreed in writing to pay such fees or
expenses, (B) the indemnifying party shall have failed to assume the defense
of
such claim within a reasonable time after having received notice of such claim
from the Person entitled to indemnification hereunder and to employ counsel
reasonably satisfactory to such Person, (C) in the reasonable judgment of any
such Person, based upon advice of its counsel, a conflict of interest exists
between such Person and the indemnifying party with respect to such claims
or
(D) based on advice of counsel, the indemnified party has reasonably concluded
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party such that the indemnifying party’s assumption of defense of the
indemnified party would be likely to adversely affect the defense of the
indemnified party (in which case, if the Person notifies the indemnifying party
in writing that such Person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such Person). If such defense
is
not assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent, but such
consent may not be unreasonably withheld; provided,
however,
that an
indemnifying party shall not be required to consent to any settlement involving
the imposition of equitable remedies or involving the imposition of any material
obligations on such indemnifying party other than financial obligations for
which such indemnified party will be indemnified hereunder. If the indemnifying
party assumes the defense, the indemnifying party shall have the right to settle
such action without the consent of the indemnified party; provided,
however,
that
the indemnifying party shall be required to obtain such consent (which consent
shall not be unreasonably withheld) if the settlement includes any admission
of
wrongdoing on the part of the indemnified party or any restriction on the
indemnified party or its officers or directors. No indemnifying party shall
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to each indemnified party of an unconditional release from all liability in
respect to such claim or litigation. The indemnifying party or parties shall
not, in connection with any proceeding or related proceedings, be liable for
the
reasonable fees, disbursements and other charges of more than one separate
firm
at any one time for all such indemnified party or parties unless (x) the
employment of more than one counsel has been authorized in writing by the
indemnifying party or parties, (y) a conflict or potential conflict exists
or
may exist (based on advice of counsel to an indemnified party) between such
indemnified party and the other indemnified parties or (z) based on advice
of
counsel, an indemnified party has reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees and expenses
of
such additional counsel or counsels.
14
(d) Contribution.
If for
any reason the indemnification provided for in the paragraphs (a) and (b) of
this Section 2.09 is unavailable to an indemnified party or insufficient to
hold
it harmless as contemplated by paragraphs (a) and (b) of this Section 2.09,
then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
the
indemnified party on the other. The relative fault 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 the indemnifying party or the indemnified
party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.09(d) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.09(d) to contribute any amount in excess of the amount by which the
net proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant
to
this Section 2.09(d) were determined by pro
rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in the immediately preceding paragraph.
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. If indemnification
is
available under this Section 2.09, the indemnifying parties shall indemnify
each
indemnified party to the full extent provided in Sections 2.09(a) and 2.09(b)
hereof without regard to the relative fault of said indemnifying parties or
indemnified party.
Section
2.10. Rule
144. The
Company covenants that it shall use its best efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
ARTICLE
3
MISCELLANEOUS
Section
3.01. Term.
This
Agreement shall terminate upon earlier of (i) the tenth anniversary of the
date
of this Agreement or (ii) the date as of which (A) all of the Registrable
Securities have been sold pursuant to a Registration Statement (but in no event
prior to the applicable period referred to in Section 4(3) of the Securities
Act
and Rule 174 thereunder) or (B) the holders are permitted to sell their
Registrable Securities under Rule 144(k) under the Securities Act (or any
similar provision then in force permitting the sale of restricted securities
without limitation on the amount of securities sold or the manner of sale).
The
provisions of Section 2.09 and Section 2.10 shall survive any
termination.
Section
3.02. Notices.
All
notices, other communications or documents provided for or permitted to be
given
hereunder, shall be made in writing and shall be given either personally by
hand-delivery, by facsimile transmission, by mailing the same in a sealed
envelope, registered first-class mail, postage prepaid, return receipt
requested, or by air courier guaranteeing overnight delivery:
| (a) |
if
to the Company to:
|
00
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxx, President
Fax:
[•]
with
a
copy to:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Fax:
(000) 000-0000
| (b) |
if
to an Investor, to the address set forth below such Investor’s name on the
signature page hereto.
|
Each
holder, by written notice given to the Company in accordance with this Section
3.02, may change the address to which notices, other communications or documents
are to be sent to such holder. All notices, other communications or documents
shall be deemed to have been duly given: (i) at the time delivered by hand,
if
personally delivered; (ii) when receipt is acknowledged in writing by addressee,
if by facsimile transmission; (iii) five business days after having been
deposited in the mail, postage prepaid, if mailed by first class mail; or (iv)
on the first business day with respect to which a reputable air courier
guarantees delivery; provided,
however,
that
notices of a change of address shall be effective only upon receipt.
15
Section
3.03. Successors,
Assigns and Transferees.
(a) The
registration rights of any holder under this Agreement with respect to any
Registrable Securities may be transferred and assigned, provided,
however,
that no
such assignment shall be binding upon or obligate the Company to any such
assignee unless and until the Company shall have received notice of such
assignment as herein provided and a written agreement of the assignee to be
bound by the provisions of this Agreement. Any transfer or assignment made
other
than as provided in the first sentence of this Section 3.03 shall be null and
void.
(b) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and permitted assigns.
Section
3.04. Governing
Law; Service of Process; Consent to Jurisdiction.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and performed within that state.
(b) To
the
fullest extent permitted by applicable law, each party hereto (i) agrees that
any claim, action or proceeding by such party seeking any relief whatsoever
arising out of, or in connection with, this Agreement or the transactions
contemplated hereby shall be brought only in the United States District Court
for the Southern District of New York and in any New York State court located
in
the Borough of Manhattan and not in any other State or Federal court in the
United States of America or any court in any other country, (ii) agrees to
submit to the exclusive jurisdiction of such courts located in the State of
New
York for purposes of all legal proceedings arising out of, or in connection
with, this Agreement or the transactions contemplated hereby and (iii)
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section
3.05. Headings. The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement.
Section
3.06. Severability.
Whenever possible, each provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision or portion of any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under any applicable
law
in any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such jurisdiction,
and
this Agreement will be reformed, construed and enforced in such jurisdiction
as
if such invalid, illegal or unenforceable provision or portion of any provision
had never been contained therein.
Section
3.07. Amendment;
Waiver.
(a) This
Agreement may not be amended or modified and waivers and consents to departures
from the provisions hereof may not be given, except by an instrument or
instruments in writing making specific reference to this Agreement and signed
by
the Company and the holders of a majority of Registrable Securities of each
class then outstanding. Each holder of any Registrable Securities at the time
or
thereafter outstanding shall be bound by any amendment, modification, waiver
or
consent authorized by this Section 3.07(a), whether or not such Registrable
Securities shall have been marked accordingly.
16
(b) The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of such breach
or
as a waiver of any other or subsequent breach. Except as otherwise expressly
provided herein, no failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy hereunder, or otherwise available
in
respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Section
3.08. Counterparts.
This
Agreement may be executed in any number of separate counterparts and by the
parties hereto in separate counterparts each of which when so executed shall
be
deemed to be an original and all of which together shall constitute one and
the
same agreement.
(Reminder
of page intentionally left blank. Signature page to follow)
17
IN
WITNESS WHEREOF,
the
parties hereto have caused this Registration Rights Agreement to be duly
executed as of the date first written above.
| BBV VIETNAM S.E.A ACQUISITION CORP. | ||
| |
|
|
| Date: | By: | |
|
Xxxx X. Xxxxx, President |
||
| INVESTORS: | |||
| FOUNDERS: | |||
|
Xxxx X. Xxxxx |
|||
|
Xxxxxx X.X. Xxx |
|||
|
Xxxxxxx X. Xxxx |
|||
INITIAL
SHAREHOLDERS:
|
___________________________
Xxxxxx
X.X. Xxx
|
___________________________
Xxxx
X. Xxxxx
|
|
___________________________
Xxxxxx
Xxx Xxxxx Xxx
|
___________________________
Xxx
Xxx
|
|
___________________________
Xxxxxx
Xxxx Xxxxx
|
___________________________
Xxxx
Xxx
|
|
__________________________
Fangfan
Yang
|
___________________________
Xxx
Xxxx
|
|
___________________________
Xxxx
X. Xxxxxxxx
|
___________________________
Xxxx
Xxxx
|
|
___________________________
Xxx
Xxxx
|
___________________________
Xxxxxx
Do Xxxx Xxxxx
|
|
___________________________
Xxxxxxxx
Xxxx
|
___________________________
Xxxxxxx
X. Xxxx
|
[Signature
Page Registration Rights Agreement]
Schedule
A
Investors
Founders:
|
Name
and Address of
Founders
|
Number
of
Warrants
|
Warrant
Certificate
Number
|
||
|
Xxxxxx
X.X. Xxx
|
||||
|
Xxxx
X. Xxxxx
|
||||
|
Xxxxxxx
X. Xxxx
|
Initial
Shareholders:
|
Name
and Address of
Initial
Shareholder
|
Number
of
Shares
|
Stock
Certificate
Number
|
||
|
Xxxxxx
X.X. Xxx
|
||||
|
Xxxx
X. Xxxxx
|
||||
|
Xxxxxx
Xxx Xxxxx Xxx
|
||||
|
Xxx
Xxx
|
||||
|
Xxxxxx
Xxxx Xxxxx
|
||||
|
Xxxx
Xxx
|
||||
|
Xxxxxxxx
Xxxx
|
||||
|
Xxx
Xxxx
|
||||
|
Xxxx
X. Xxxxxxxx
|
||||
|
Xxxx
Xxxx
|
||||
|
Xxx
Xxxx
|
||||
|
Xxxxxx
Do Xxxx Xxxxx
|
||||
|
Xxxxxxxx
Xxxx
|
||||
|
Xxxxxxx
X. Xxxx
|
Unless
otherwise indicated, all addresses x/x XXX Xxxxxxx S.E.A. Acquisition Corp.,
00
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
