REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) is
entered into as of the ___ day of __________, 2011, by and among Universal
Business Payment Solutions Acquisition Corporation, a Delaware corporation (the
“Company”), and
the undersigned parties whose names appear listed under the heading “Investors”
on the signature page hereto (each, an “Investor” and
collectively, the “Investors”).
WHEREAS, the Investors
currently hold 3,450,000 issued and outstanding shares of the Company’s Common
Stock (as defined below), of which up to 450,000 shares are subject to
forfeiture if the underwriters do not exercise their over-allotment option in
full;
WHEREAS, certain of the
Investors are purchasing Insider Warrants (as defined below) in a private
placement occurring simultaneously with the consummation of the Company’s
initial public offering;
WHEREAS, EarlyBirdCapital,
Inc. or its designees (“EBC”) is purchasing
EBC Warrants (as defined below) in a private placement occurring simultaneously
with the consummation of the Company’s initial public offering;
WHEREAS, the Investors and the
Company desire to enter into this Agreement to provide the Investors with
certain rights relating to the Registration (as defined below) of Registrable
Securities (as defined below) held by them;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Defined
Terms. The following capitalized terms used herein have the
following meanings:
“Agreement” means this
Agreement, as amended, restated, supplemented or otherwise modified from time to
time.
“Business Combination”
the consummation by the Company of a merger, share exchange, asset acquisition,
stock purchase, plan of arrangement, recapitalization, reorganization or other
similar business combination
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common Stock” means
the common stock, par value $0.001 per share, of the Company.
“Company” is defined
in the preamble to this Agreement.
“Demand Registration”
is defined in Section 2.1.1.
“Demanding Holder” is
defined in Section 2.1.1.
“EBC” is defined in
the preamble to this Agreement.
“EBC Securities” means
the EBC Warrants and the shares of Common Stock underlying the EBC
Warrants.
“EBC Warrants” means
the 720,000 Warrants being purchased by EBC in a private placement occurring
simultaneously with the consummation of the Company’s initial public
offering.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect
from time to time.
“Form S-3” is defined
in Section 2.3.
“Indemnified Party” is
defined in Section 4.3.
“Indemnifying Party”
is defined in Section 4.3.
“Initial Shares”
refers to the 3,450,000 shares of Common Stock that the Investors purchased
prior to the Company’s initial public offering.
“Insider Warrants”
means the 6,240,000 Warrants being purchased by certain of the Investors in a
private placement occurring simultaneously with the consummation of the
Company’s initial public offering.
“Insider Securities”
means the Insider Warrants and the shares of Common Stock underlying the Insider
Warrants.
“Investor” is defined
in the preamble to this Agreement.
“Investor Indemnified
Party” is defined in Section 4.1.
“Maximum Number of
Securities” is defined in Section 2.1.4.
“Notices” is defined
in Section 6.4.
“Person” means an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity or enterprise of whatever
nature.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Pro Rata” is defined
in Section 2.1.4.
“Register,” “Registered” and
“Registration”
mean a registration effected by preparing and filing a Registration Statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
Registration Statement becoming effective.
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“Registrable
Securities” mean (i) the Initial Shares (ii) the EBC Warrants and
(iii) the Insider Securities. Registrable Securities include any
warrants, shares of capital stock or other securities of the Company issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of such Initial Shares or Insider Securities. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when: (a) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require Registration under the
Securities Act; or (c) such securities shall have ceased to be
outstanding.
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of securities (other than
a registration statement on Form S-4 or Form S-8, or their successors, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another entity).
“Release Date” means,
for any Initial Shares, the date on which such
Initial Shares are disbursed from escrow pursuant to Sections 3.2 or 3.3 of that
certain Stock Escrow Agreement dated as of ____________, 2011 by and among the
Company, the Investors holding the Initial Shares and Continental Stock Transfer
& Trust Company.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
“Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s market-making
activities.
1.2 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
exhibits, schedules and disclosure statements hereto), and references herein to
Sections refer to Sections of this Agreement.
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2. REGISTRATION
RIGHTS.
2.1 Demand
Registration.
2.1.1. Request for
Registration. At any time and from time to time on or after
the date that is (i) in
the case of the Insider Securities or the EBC Securities, after the Company
consummates a Business Combination or (ii) in the case of the Initial Shares,
three months prior to the Release Date, the holders of a
majority-in-interest of the Insider Securities, EBC Securities or the Initial
Shares, as the case may be, may make a written demand for Registration under the
Securities Act of all or part of their Insider Securities, EBC
Securities the Initial Shares, as the case may be (a “Demand
Registration”). Any Demand Registration shall specify the
number of Registrable Securities proposed to be sold and the intended method(s)
of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand, and each holder of such Registrable
Securities who wishes to include all or a portion of such holder’s Registrable
Securities in the Demand Registration (each such holder including Registrable
Securities in such Registration, a “Demanding Holder”)
shall so notify the Company within fifteen (15) days after the receipt by the
holder of the notice from the Company. Upon any such request, the
Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4 and the provisos
set forth in Section 3.1.1. The Company shall not be obligated to effect more
than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in
respect of all Registrable Securities.
2.1.2. Effective
Registration. A Registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its obligations under this Agreement with respect
thereto; provided,
however, that if, after
such Registration Statement has been declared effective, the offering of
Registrable Securities pursuant to a Demand Registration is interfered with by
any stop order or injunction of the Commission or any other governmental agency
or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until,
(i) such stop order or injunction is removed, rescinded or otherwise
terminated and (ii) a majority-in-interest of the Demanding Holders
thereafter elect to continue the offering; 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.
2.1.3. Underwritten
Offering. If a majority-in-interest of the Demanding Holders
so elect and such holders so advise the Company as part of their written demand
for a Demand Registration, the offering of such Registrable Securities pursuant
to such Demand Registration shall be in the form of an underwritten
offering. In such event, the right of any holder to include its
Registrable Securities in such Registration shall be conditioned upon such
holder’s participation in such underwriting and the inclusion of such holder’s
Registrable Securities in the underwriting to the extent provided
herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest of the holders initiating the Demand
Registration.
2.1.4. Reduction of
Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises the Company
and the Demanding Holders in writing that the dollar amount or number of
Registrable Securities which the Demanding Holders desire to sell, taken
together with all other shares of Common Stock or other securities which the
Company desires to sell and the securities, if any, as to which Registration has
been requested pursuant to written contractual piggy-back registration rights
held by other securityholders of the Company who desire to sell, exceeds the
maximum dollar amount or maximum number of securities that can be sold in such
offering without adversely affecting the proposed offering price, the timing,
the distribution method or the probability of success of such offering (such
maximum dollar amount or maximum number of securities, as applicable, the “Maximum Number of
Securities”), then the Company shall include in such
Registration: (i) first, the Registrable Securities as to which
Demand Registration has been requested by the Demanding Holders (pro rata in
accordance with the number of securities that each such Person has requested be
included in such Registration, regardless of the number of securities held by
each such Person (such proportion is referred to herein as “Pro Rata”)) that can
be sold without exceeding the Maximum Number of Securities; (ii) second, to
the extent that the Maximum Number of Securities has not been reached under the
foregoing clause (i), the shares of Common Stock or other 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), the
shares of Common Stock or other securities registrable
pursuant to the terms of the Unit Purchase Option to be issued to EBC or its
designees in connection with the Company’s initial public offering on _________,
2011 (the “Unit Purchase Option” and such registrable securities, the “Option
Securities”) as to which “piggy-back” registration has been requested by the
holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number
of Securities; and (iv) fourth, to the extent that the Maximum Number of
Securities have not been reached under the foregoing clauses (i), (ii) and
(iii), the shares of Common Stock or other 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.
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2.1.5. Withdrawal. If
a majority-in-interest of the Demanding Holders disapprove of the terms of any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest of
the Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such Registration shall not count as a Demand Registration
provided for in Section 2.1.
2.2 Piggy-Back
Registration.
2.2.1. Piggy-Back
Rights. If at any time on or after the date the Company
consummates a Business Combination, the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for,
or convertible into, equity securities, by the Company for its own account or
for securityholders of the Company for their account (or by the Company and by
securityholders of the Company including, without limitation, pursuant to
Section 2.1), other than a Registration Statement (i) filed in connection
with any employee stock option or other benefit plan, (ii) for an exchange
offer or offering of securities solely to the Company’s existing
securityholders, (iii) for an offering of debt that is convertible into
equity securities of the Company (iv) for a dividend
reinvestment plan, or (v) solely in connection with a merger, consolidation or
non-capital raising bona fide business transaction, then the Company shall
(x) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than ten (10)
days before the anticipated filing date, which notice shall describe the amount
and type of securities to be included in such offering, the intended method(s)
of distribution and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (y) offer to the holders of
Registrable Securities in such notice the opportunity to register the sale of
such number of Registrable Securities as such holders may request in writing
within five (5) days following receipt of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable
Securities to be included in such Registration and shall use its reasonable best
efforts to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing
to distribute their securities through a Piggy-Back Registration that involves
an Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
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2.2.2. Reduction of
Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the
Company and the holders of Registrable Securities in writing that the dollar
amount or number of securities which the Company desires to sell, taken together
with the securities, if any, as to which Registration has been demanded pursuant
to written contractual arrangements with Persons other than the holders of
Registrable Securities hereunder, the Registrable Securities as to which
Registration has been requested under this Section 2.2, and the securities, if
any, as to which Registration has been requested pursuant to the written
contractual Piggy-Back Registration rights of other securityholders of the
Company, exceeds the Maximum Number of Securities, then the Company shall
include in any such Registration:
a) If
the Registration is undertaken for the Company’s account: (A) first, the
shares of Common Stock or other securities that the Company desires to sell that
can be sold without exceeding the Maximum Number of Securities; (B) second,
to the extent that the Maximum Number of Securities has not been reached under
the foregoing clause (A), the shares of Common Stock or other securities, if
any, comprised of Registrable Securities, as to which Registration has been
requested pursuant to the applicable written contractual piggy-back registration
rights of such security holders, Pro Rata, that can be sold without exceeding
the Maximum Number of Securities; and (C) third, to the extent that the
Maximum Number of Securities has not been reached under the foregoing clauses
(A) and (B), the shares of Common Stock or other securities for the account of
other Persons that the Company is obligated to register pursuant to written
contractual piggy-back registration rights with such Persons, Pro Rata, that can
be sold without exceeding the Maximum Number of Securities; and
b) If
the registration is a “demand” registration undertaken at the demand of holders
of Option Securities, (A) first, the shares of Common Stock or other securities
for the account of the demanding persons, Pro Rata, that can be sold without
exceeding the Maximum Number of Securities; (B) second, to the extent that the
Maximum Number of Securities has not been reached under the foregoing clause
(A), the shares of Common Stock or other securities that the Company desires to
sell that can be sold without exceeding the Maximum Number of Securities; (C)
third, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clauses (A) and (B), the shares of Common Stock or other
Registrable Securities, Pro Rata, as to which registration has been requested
pursuant to the terms hereof, that can be sold without exceeding the Maximum
Number of Securities; and (D) fourth, to the extent that the Maximum Number of
Securities has not been reached under the foregoing clauses (A), (B) and (C),
the shares of Common Stock or other securities for the account of other persons
that the Company is obligated to register pursuant to written contractual
arrangements with such persons, that can be sold without exceeding the Maximum
Number of Securities; and
c) If
the registration is a “demand” registration undertaken at the demand of persons
other than either the holders of Registrable Securities or of Option
Securities, (A) first, the shares of Common Stock or other securities
for the account of the demanding persons that can be sold without exceeding the
Maximum Number of Securities; (B) second, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clause (A), the
shares of Common Stock or other securities that the Company desires to sell that
can be sold without exceeding the Maximum Number of Securities; (C) third,
to the extent that the Maximum Number of Securities has not been reached under
the foregoing clauses (A) and (B), collectively the shares of Common Stock
or other securities comprised of Registrable Securities and Option
Securities Pro Rata, as to which registration has been requested pursuant
to the terms hereof and of the Unit Purchase Option, as applicable, that
can be sold without exceeding the Maximum Number of Securities; and
(D) fourth, to the extent that the Maximum Number of Securities has not
been reached under the foregoing clauses (A), (B) and (C), the shares of Common
Stock or other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements with such
persons, Pro Rata, that can be sold without exceeding the Maximum Number of
Securities.
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2.2.3. Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on
its own determination or as the result of a withdrawal by Persons making a
demand pursuant to written contractual obligations) may withdraw a Registration
Statement at any time prior to the effectiveness of the Registration
Statement. Notwithstanding any such withdrawal, the Company shall pay
all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 3.3.
2.3
Registrations on Form
S-3. Pursuant to a Demand Registration under Section 2.1, the
holders of Registrable Securities may at any time and from time to time, request
in writing that the Company register the resale of any or all of such
Registrable Securities on Form S-3 or any similar short-form Registration which
may be available at such time (“Form S-3”); provided, however, that the Company
shall not be obligated to effect such request through an underwritten
offering. 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 or other securities of the Company, if any, of any
other holder or holders joining in such request as are specified in a written
request given within fifteen (15) 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 2.3: (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 and such other securities
(if any) at any aggregate price to the public of less than
$500,000. Registrations effected pursuant to this Section 2.3 shall
not be counted as Demand Registrations effected pursuant to Section
2.1.
3.
REGISTRATION
PROCEDURES.
3.1
Filings;
Information. Whenever the Company is required to effect the
Registration of any Registrable Securities pursuant to Section 2, the Company
shall use its reasonable best efforts to effect the Registration and sale of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection with any
such request:
3.1.1. Filing Registration
Statement. The Company shall, as expeditiously as possible and
in any event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall use
its reasonable best efforts to cause such Registration Statement to become and
remain effective for the period required by Section 3.1.3; provided, however, that the Company
shall have the right to defer any Demand Registration for up to thirty (30)
days, and any Piggy-Back Registration for such period as may be applicable to
deferment of any Demand Registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate
signed by the Chief Executive Officer or the Chairman of the Board of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, it would be materially detrimental to the Company and its
securityholders for such Registration Statement to be effected at such time;
provided further, that the Company
shall not have the right to exercise the right set forth in the immediately
preceding proviso more than once in any 365-day period in respect of a Demand
Registration hereunder.
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3.1.2. Copies. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such Registration, and such holders’ legal
counsel, copies of the Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such Registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3. Amendments and
Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and in
compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement (which period shall not exceed the sum of one
hundred eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been
withdrawn.
3.1.4. Notification. After
the filing of a Registration Statement, the Company shall promptly, and in no
event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing,
and shall further notify such holders promptly and confirm such advice in
writing within two (2) business days of the occurrence of any of the following:
(i) when such Registration Statement becomes effective; (ii) when any
post-effective amendment to such Registration Statement becomes effective;
(iii) the issuance or threatened issuance by the Commission of any stop
order (and the Company shall take all actions required to prevent the entry of
such stop order or to remove it if entered); and (iv) any request by the
Commission for any amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of
filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
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3.1.5. State Securities Laws
Compliance. The Company shall use its reasonable best efforts
to (i) register or qualify the Registrable Securities covered by the
Registration Statement as necessary under such securities or “blue sky” laws of
such jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph or
subject itself to taxation in any such jurisdiction.
3.1.6. Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations,
warranties and covenants of the Company in any underwriting agreement which are
made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the holders of Registrable Securities
included in such Registration Statement. No holder of Registrable
Securities included in such Registration Statement shall be required to make any
representations or warranties in the underwriting agreement except, if
applicable, with respect to such holder’s organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder’s material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished in
writing expressly for inclusion in such Registration Statement.
3.1.7. Cooperation. Officers
and members of the management of the Company shall cooperate fully in any
offering of Registrable Securities hereunder, which cooperation shall include
the preparation of the Registration Statement with respect to such offering and
all other offering materials and related documents, and participation in
meetings with Underwriters, attorneys, accountants and potential
investors.
3.1.8. Records. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such Registration Statement and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
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3.1.9. Opinions and Comfort
Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed
counterpart, addressed to such holder, of (i) any opinion of counsel to the
Company delivered to any Underwriter and (ii) any comfort letter from the
Company’s independent public accountants delivered to any
Underwriter. In the event no legal opinion is delivered to any
Underwriter, the Company shall furnish to each holder of Registrable Securities
included in such Registration Statement, at any time that such holder elects to
use a prospectus, an opinion of counsel to the Company to the effect that the
Registration Statement containing such prospectus has been declared effective
and that no stop order is in effect.
3.1.10. Earnings
Statement. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and also make
available to its stockholders, as soon as practicable, an earnings statement
covering a period of twelve (12) months, beginning within three (3) months after
the effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11. Listing. The
Company shall use its reasonable best efforts to cause all Registrable
Securities included in any Registration to be listed on such exchanges or
otherwise designated for trading in the same manner as similar securities issued
by the Company are then listed or designated or, if no such similar securities
are then listed or designated, in a manner satisfactory to the holders of a
majority of the Registrable Securities included in such
Registration.
3.1.12. Post-Effective
Amendment. The Company shall 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;
3.2 Obligation to Suspend
Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in
the case of a resale Registration on Form S-3 pursuant to Section 2.3 hereof,
upon any suspension by the Company, pursuant to a written xxxxxxx xxxxxxx
compliance program adopted by the Company’s Board of Directors or otherwise, 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 discontinue
disposition of such Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities immediately until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of insiders to transact in the
Company’s securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
10
3.3 Registration
Expenses. The Company shall bear all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1, any
Piggy-Back Registration pursuant to Section 2.2, any Registration on Form S-3
effected pursuant to Section 2.3 and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation:
(i) all Registration and filing fees; (ii) fees and expenses of
compliance with securities or “blue sky” laws (including fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the Company’s internal
expenses (including all salaries and expenses of its officers and employees);
(v) the fees and expenses incurred in connection with the listing of the
Registrable Securities as required by Section 3.1.11; (vi) Financial
Industry Regulatory Authority fees; (vii) fees and disbursements of counsel
for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated
with the delivery of any opinions or comfort letters requested pursuant to
Section 3.1.9); (viii) the fees and expenses of any special experts
retained by the Company in connection with such Registration; and (ix) the
fees and expenses of one legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such
Registration. The Company shall have no obligation to pay any
underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the holders thereof, which underwriting discounts or
selling commissions shall be borne by such holders. In addition, in
an underwritten offering, all selling holders of Registrable Securities and the
Company shall bear any expenses of the Underwriter required to be borne by the
selling securityholders or the company pursuant to the underwriting agreement
pro rata in proportion to the respective amount of securities each is selling in
such offering.
3.4 Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the Registration of any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
3.5 Underwritten
Offerings.
3.5.1. Underwriting
Agreements. If requested by the Underwriters for any
underwritten offering requested by holders pursuant to Sections 2.1 or 2.3, 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
indemnities no less favorable to the recipient thereof than those provided in
Section 4. The holders of any Registrable Securities to be included in any
underwritten offering pursuant to Section 2.2 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.
11
3.5.2. Price and Underwriting
Discounts. In the case of an underwritten offering requested by holders
pursuant to Sections 2.1 or 2.3, 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 2.2, 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 2.2.3 after being
advised of such price, discount and other terms.
3.5.3. 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.
3.6 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.
4. INDEMNIFICATION AND
CONTRIBUTION.
4.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents and each Person, if any, who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) an
Investor and each other holder of Registrable Securities (each, an “Investor Indemnified
Party”) from and against any expenses, losses, judgments, claims, damages
or liabilities, whether joint or several, arising out of or based upon any
untrue statement (or allegedly untrue statement) of a material fact contained in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arising out of or
based upon any omission (or alleged omission) to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such Registration; and
the Company shall promptly reimburse the Investor Indemnified Party for any
legal and any other expenses reasonably incurred by such Investor Indemnified
Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such expense, loss,
claim, damage or liability arises out of or is based upon any untrue statement
or allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus or summary
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall
indemnify any Underwriter of the Registrable Securities, their officers,
affiliates, directors, partners, members and agents and each Person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
12
4.2 Indemnification by Holders
of Registrable Securities. Each selling holder of Registrable
Securities will, in the event that any Registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by
such selling holder, indemnify and hold harmless the Company, each of its
directors and officers and each Underwriter (if any), and each other selling
holder and each other Person, if any, who controls another selling holder or
such Underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or
controlling Person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder’s indemnification
obligations hereunder shall be several and not joint and shall be limited to the
amount of any net proceeds actually received by such selling
holder.
13
4.3 Conduct of Indemnification
Proceedings. Promptly after receipt by any Person of any
notice of any loss, claim, damage or liability or any action in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2, such Person (the “Indemnified Party”)
shall, if a claim in respect thereof is to be made against any other Person for
indemnification hereunder, notify such other Person (the “Indemnifying Party”)
in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by
the Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to
such Indemnified Party hereunder, except and solely to the extent the
Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action
brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it
wishes, jointly with all other Indemnifying Parties, to assume control of the
defense thereof with counsel satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action
in which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling Persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, consent to entry of judgment or
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
4.4 Contribution.
4.4.1. If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section.
4.4.3. The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
14
5.
UNDERWRITING AND
DISTRIBUTION.
5.1 Rule
144. The Company covenants that it shall 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.
6.
MISCELLANEOUS.
6.1 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 of all Registrable Securities are
permitted to sell the Registrable Securities under Rule 144 (or any similar
provision) under the Securities Act without limitation on the amount of
securities sold or the manner of sale. The provisions of Section 4
and Section 5 shall survive any termination.
6.2 Other Registration
Rights. Except
with respect to those securities issued or issuable upon exercise of that
certain Unit Purchase Option to be issued to EBC or its designees in connection
with the Company’s initial public offering on _________, 2011, the
Company represents and warrants that no Person, other than a holder of the
Registrable Securities, has any right to require the Company to register any
shares of the Company’s capital stock for sale or to include shares of the
Company’s capital stock in any Registration filed by the Company for the sale of
any securities for its own account or for the account of any other
Person.
6.3 Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties
and obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities by any such
holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and the permitted
assigns of the Investor or holder of Registrable Securities or of any assignee
of the Investor or holder of Registrable Securities. This Agreement
is not intended to confer any rights or benefits on any Persons that are not
party hereto other than as expressly set forth in Article 4 and this Section
6.3.
15
6.4 Notices. All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”) required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile; provided,
that if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business
day. Notice otherwise sent as provided herein shall be deemed given
on the next business day following timely delivery of such notice to a reputable
air courier service with an order for next-day delivery.
To the
Company:
c/o UBPS
Services, LLC
Radnor
Financial Center
000 Xxxxx
Xxxxxx-Xxxxxxx Xxxx, Xxxxx X-000
Xxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxx
A copy of
any notice sent hereunder shall be sent to:
Dechert
LLP
0000 X
Xxxxxx, X.X.
Xxxxxxxxxx,
X.X. 00000
Attn: Xxxxxx
X. Xxxxxxxxx
To
EBC:
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxx
To any
other Investor, to the address specified on Exhibit A.
6.5 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible that is valid and enforceable.
6.6 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
6.7 Entire
Agreement. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto) constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
16
6.8 Modifications and
Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such
party.
6.9 Titles and
Headings. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
6.10 Waivers and
Extensions. Any party to this Agreement may waive any right,
breach or default which such party has the right to waive, provided that such waiver
will not be effective against the waiving party unless it is in writing, is
signed by such party and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived
has arisen or the breach or default waived has occurred. Any waiver
may be conditional. No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof nor of any other agreement or provision herein
contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.11 Remedies
Cumulative. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under
this Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.12 Governing
Law. This Agreement shall be governed by, interpreted under
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed within the State of New
York.
6.13 Waiver of Trial by
Jury. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other
proceeding (whether based on contract, tort or otherwise) arising out of,
connected with or relating to this Agreement, the transactions contemplated
hereby, or the actions of the Investor in the negotiation, administration,
performance or enforcement hereof.
17
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to
be executed and delivered by their duly authorized representatives as of the
date first written above.
|
UNIVERSAL
BUSINESS PAYMENT
SOLUTIONS
ACQUISITION CORPORATION
|
|
|
By:
Xxxxx X. Xxxx
|
|
|
Title:
Chairman of the Board
|
|
|
INVESTORS:
|
|
|
XXXXX
X. XXXX
|
|
|
XXXXX
XXXXXXXX
|
|
|
[Investors]
|
|
|
EARLYBIRDCAPITAL,
INC.
|
|
|
|
|
|
By:
|
|
|
Title:
|
18
EXHIBIT
A
c/o UPBS
Services, LLC
Radnor
Financial Center
000 Xxxxx
Xxxxxx-Xxxxxxx Xxxx, Xxxxx X-000
Xxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxx
c/o UPBS
Services, LLC
Radnor
Financial Center
000 Xxxxx
Xxxxxx-Xxxxxxx Xxxx, Xxxxx X-000
Xxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxxx Xxxxxxxx
19
