REGISTRATION RIGHTS AGREEMENT
Exhibit
4.4
This REGISTRATION RIGHTS AGREEMENT
(this “Agreement”) is entered into as
of the __th day of _____, 2009, by and among Xxxxxxx 0000 Xxxxx Acquisition
Corp., a British Virgin Islands business company of limited liability (the
“Company”), and the
undersigned parties listed under “Investors” on the signature page hereto (each,
an “Investor” and,
collectively, the “Investors”).
WHEREAS, the Company and each
Investor are parties to a Subscription Agreement (each, a “Subscription Agreement” and
collectively, the “Subscription
Agreements”), dated ______________, 2009, providing for the purchase of
an aggregate ___________ of the Ordinary Shares (collectively, the “Securities”) for an aggregate
consideration of $____________ (the “Purchase Price”)
WHEREAS, the Investors would
not have entered into the Subscription Agreements unless the Company also agreed
to enter into this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1.DEFINITIONS. The following
capitalized terms used herein have the following meanings:
“Agreement” means this
Agreement, as amended, restated, supplemented, or otherwise modified from time
to time.
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Company” is defined in the
preamble to this Agreement.
“DemandRegistration” is defined in
Section 2.2.1.
“DemandingHolder” is defined in Section
2.2.1.
“Effectiveness Period” is
defined in Section 2.1.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Form F-3” is defined in
Section 2.4.
“Indemnified Party” is defined
in Section 4.3.
“Indemnifying Party” is defined
in Section 4.3.
“Investor” is defined in the
preamble to this Agreement.
“Investor Indemnified Party” is
defined in Section 4.1.
“Mandatory Registration” is
defined in Section 2.1
“Maximum Number of Shares” is
defined in Section 2.2.4.
“Notices” is defined in Section
6.3.
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“Ordinary Shares” means the
ordinary shares of the Company, par value $0.001 per share.
“Piggy-Back Registration” is
defined in Section 2.3.1.
“Purchase Price” is defined in
the preamble to this Agreement..
“Register,” “registered” and “registration” mean a
registration effected by preparing and filing a Registration Statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable Securities” means
all of the Securities that are not registered for sale or resale at a particular
time and that have not been sold by the Investors. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when the Registrable Securities are salable under Rule
144 promulgated under the Securities Act without restriction in the
opinion of counsel to the Company.
“Registration Date” is defined
in Section 2.2.1.
“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 of the Company (other than a
registration statement on Form F-4 or Form S-8, or their successors, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another entity).
“Securities” is defined in the
preamble to this Agreement.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Subscription Agreement” is
defined in the preamble to this Agreement.
“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.
2.REGISTRATION
RIGHTS.
2.1 Mandatory
Registration. The Company agrees that within 14 days of the
Closing Date (as defined in the Subscription Agreement) (the “Filing Date”), the Company
shall file with the Commission a resale Registration Statement for the
registration under the Securities Act, of, and it shall take such action as is
necessary to qualify for sale in those states in which the Securities were
initially offered by the Company, all of the Registrable Securities (the “Mandatory
Registration”). The Company shall cause the same to become
effective and to maintain the effectiveness of such Registration Statement until
the earlier of (i) all of the Securities have been sold by the Investors or (ii)
the date the Registrable Securities become eligible for sale pursuant to Rule
144 promulgated under the Securities Act (the “Effectiveness
Period”). In addition, the Company shall register such
Registrable Securities under the blue sky laws of the states of residence of the
Investors to the extent an exemption is not available.
2.1.1 Failure to Timely
Register. If (i) the Mandatory Registration is not filed on or
prior to the Filing Date, or (ii) the Mandatory Registration Statement is not
declared effective by the Commission by 135 days after the Filing Date (each, an
“Event”), then as
partial relief for the damages to the Purchaser by reason of the occurrence of
any such Event (which remedy shall not be exclusive of any other remedies
available at law or in equity), the Company shall pay to each Investor for each
day that an
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Event has
occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of
the product of: (A) the purchase price of the Registrable Securities owned by
such Investor included in such Mandatory Registration, and (B)
0.005. In the event the Company fails to make any payments pursuant
to this Section 2.1.1 within ten business days of the receipt by the Company of
a demand for payment by the applicable Investor (such demand to include the
amount to be paid and the calculation therefor), such payments shall bear
interest at the rate of 1.5% per month (prorated for partial months) until paid
in full.
2.2 Demand
Registration.
2.2.1Request for
Registration. At any time
and from time to time on or after the one-year anniversary of the date of this
Agreement (the “Registration
Date”), the holders of not
less than a majority of any class of the Registrable Securities held by the
Investors or the transferees of the Investors, may make a written demand for
registration under the Securities Act of all or part of their Registrable
Securities (a “Demand
Registration”). Any demand
for a Demand Registration shall specify the number of shares of Registrable
Securities proposed to be sold and the intended method(s) of distribution
thereof. The Company will notify all holders of Registrable Securities of the
demand within ten (10) days from the receipt of the Demand Registration, and
each holder of Registrable Securities who wishes to include all or a portion of
such holder’s Registrable Securities in the Demand Registration (each such
holder including shares of Registrable Securities in such registration, a
“Demanding
Holder”) shall so notify
the Company 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 2.2.4 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 2.2.1 in respect of Registrable
Securities.
2.2.2Effective
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 or
withdrawn.
2.2.3Underwritten
Offering. If not less than
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.
2.2.4Reduction
of Offering. If the
managing Underwriter or Underwriters for a Demand Registration that is to be an
underwritten offering advises the Company and the Demanding Holders in writing
that the dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell, taken together with all other Ordinary Shares
or other securities which the Company desires to issue and the Ordinary Shares,
if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other shareholders of the
Company who desire to sell, exceeds the maximum dollar amount or maximum number
of shares that can be sold in such
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offering without adversely affecting
the proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum
number of shares, as applicable, the “Maximum Number of
Shares”), then the Company
shall include in such registration: (i) first, the Registrable Securities as to
which Demand Registration has been requested by the Demanding Holders (pro rata
in accordance with the number of shares of Registrable Securities which such
Demanding Holder has requested be included in such registration, regardless of
the number of shares of Registrable Securities held by each Demanding Holder)
that can be sold without exceeding the Maximum Number of Shares; (ii) second, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the Ordinary Shares or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
(iii) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (i) and (ii), the Ordinary Shares for the
account of other persons that the Company is obligated to register pursuant to
written contractual arrangements with such persons and that can be sold without
exceeding the Maximum Number of Shares; and (v) fourth, to the extent that the
Maximum Number of Shares have not been reached under the foregoing clauses (i),
(ii), and (iii), the Ordinary Shares that other shareholders desire to sell that
can be sold without exceeding the Maximum Number of
Shares.
2.2.5Withdrawal. 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 this
Section 2.2.
2.3Piggy-Back
Registration.
2.3.1Piggy-Back
Rights. If at any time on
or after the Registration Date, 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 shareholders of the Company for their account (or by the Company and by
shareholders of the Company including, without limitation, pursuant to Section
2.2), other than a Registration Statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or
offering of securities solely to the Company’s existing shareholders, (iii) for
an offering of debt that is convertible into equity securities of the Company or
(iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed
filing to the holders of Registrable Securities as soon as
practicable but in no event less than ten (10) days before the anticipated
filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name
of the proposed managing Underwriter or Underwriters, if any, of the offering,
and (y) offer to the holders of Registrable
Securities in such notice the opportunity to register the sale of such number of
shares of Registrable Securities as such holders may request in writing within
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 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 to be included
on the same terms and conditions as any similar securities of the Company and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method(s) of distribution thereof. All holders of
Registrable Securities proposing to distribute their securities through a
Piggy-Back Registration that involves an Underwriter or Underwriters shall enter
into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
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2.3.2Reduction
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 Ordinary
Shares which the Company desires to sell, taken together with Ordinary Shares,
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 2.3, and the Ordinary Shares, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other shareholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(i)If the registration is undertaken for
the Company’s account: (A) first, the Ordinary Shares or other securities that
the Company desires to issue that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the Ordinary Shares, if
any, including the Registrable Securities, as to which registration has been
requested pursuant to written contractual piggy-back registration rights of
security holders (pro rata in accordance with the number of Ordinary Shares
which each such person has actually requested to be included in such
registration, regardless of the number of Ordinary Shares with respect to which
such persons have the right to request such inclusion) that can be sold without
exceeding the Maximum Number of Shares; and
(ii)If the registration is a “demand”
registration undertaken at the demand of persons other than the holders of
Registrable Securities pursuant to written contractual arrangements with such
persons, (A) first, the Ordinary Shares for the account of the demanding persons
that can be sold without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the Ordinary Shares or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
and (C) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A) and (B), the Ordinary Shares, if any,
including the Registrable Securities, as to which registration has been
requested pursuant to written contractual piggy-back registration rights of
security holders (pro rata in accordance with the number of Ordinary Shares
which each such person has actually requested to be included in such
registration, regardless of the number of Ordinary Shares with respect to which
such persons have the right to request such inclusion) that can be sold without
exceeding the Maximum Number of Shares.
2.3.3Withdrawal. Any holder of Registrable Securities
may elect to withdraw such holder’s request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a Registration
Statement at any time prior to the effectiveness of the Registration Statement.
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.
2.4Registrations
on Form F-3. 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 F-3 or any similar short-form registration which may be
available at such time (“Form F-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 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 2.4: (i) if
Form F-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
2.4 shall not be counted as Demand Registrations effected pursuant to Section
2.2.
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3.REGISTRATION
PROCEDURES.
3.1Filings;
Information. Whenever the
Company is required to effect the registration of any Registrable Securities
pursuant to Section 2, the Company shall use its 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:
3.1.1Filing
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 2.2, 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 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 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 shareholders for such Registration Statement to be effected at such time;
provided
further, however, 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.
3.1.2Copies. The Company shall, prior to filing a
Registration Statement or prospectus, or any amendment or supplement thereto,
furnish without charge to the holders of Registrable Securities included in such
registration, and such holders’ legal counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus included in such
Registration Statement (including each preliminary prospectus), and such other
documents as the holders of Registrable Securities included in such registration
or legal counsel for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders; 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.
3.1.3Amendments
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.
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3.1.4Notification. After the filing of a Registration
Statement, the Company shall promptly, and in no event more than two (2)
business days after such filing, notify the holders of Registrable Securities
included in such Registration Statement of such filing, and shall further notify
such holders promptly and confirm such advice in writing in all events within
two (2) business days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) the issuance or
threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove
it if entered); and (iv) any request by the Commission for any amendment or
supplement to such Registration Statement or any prospectus relating thereto or
for additional information or of the occurrence of an event requiring the
preparation of a supplement or amendment to such 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.
3.1.5State
Securities Laws Compliance. The Company shall use its best
efforts to (i) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or “blue sky” laws of such
jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph 3.1.5 or subject
itself to taxation in any such jurisdiction.
3.1.6Agreements
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. Holders of Registrable Securities shall agree to such
covenants and indemnification and contribution obligations for selling
stockholders as are customarily contained in agreements of that type. Further,
such holders shall cooperate fully in the preparation of the Registration
Statement and other documents relating to any offering in which they include
securities pursuant to Section 2 hereof. Each holder shall also furnish to the
Company such information regarding itself, the Registrable Securities held by
such holder and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of the Registrable
Securities.
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3.1.7Cooperation. The principal executive officer of
the Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all
other offering materials and related documents, and participation in meetings
with Underwriters, attorneys, accountants and potential
investors.
3.1.8Records. 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.
3.1.9Opinions
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.
3.1.10Earnings
Statement. The Company
shall comply with all applicable rules and regulations of the Commission and the
Securities Act, and make available to its shareholders, as soon as practicable,
an earnings statement covering a period of twelve (12) months, beginning within
three (3) months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
3.1.11Listing. The Company shall use its 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.
3.2Obligation
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 F-3 pursuant to Section 2.4 hereof, 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 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.
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3.3Registration
Expenses. The Company
shall bear all costs and expenses incurred in connection with any Mandatory
Registration pursuant to Section 2.1, Demand Registration pursuant to Section
2.2, any Piggy-Back Registration pursuant to Section 2.3, and any registration
on Form F-3 effected pursuant to Section 2.4, and all expenses incurred in
performing or complying with its other obligations under this Agreement, whether
or not the Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees; (ii) fees and expenses of
compliance with securities or “blue sky” laws (including fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees); (v) the fees and expenses incurred in connection with the listing of
the Registrable Securities 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.
Additionally, in an underwritten offering, all selling shareholders and the
Company shall bear the expenses of the Underwriter pro rata in proportion to the
respective amount of shares each is selling in such
offering.
3.4Information. 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.
3.5Holder
Obligations. No holder of
Registrable Securities may participate in any underwritten offering pursuant to
this Section 3 unless such holder (i) agrees to sell only such holder’s
Registrable Securities on the basis reasonably provided in any underwriting
agreement, and (ii) completes, executes and delivers any and all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required by or under the terms of any underwriting
agreement or as reasonably requested by the Company.
4.INDEMNIFICATION AND
CONTRIBUTION.
4.1Indemnification
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 an Investor and each other holder of
Registrable Securities (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) (each, an “Investor Indemnified
Party”), from and against
any expenses, losses, judgments, claims, damages or liabilities, whether joint
or several, arising out of or based upon any untrue statement (or allegedly
untrue statement) of a material fact contained in any Registration Statement
under which the sale of such Registrable Securities was registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or
supplement 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
9
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.
4.2Indemnification
by Holders of Registrable Securities. Each selling holder of Registrable
Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by
such selling holder, indemnify and hold harmless the Company, each of its
directors and officers and each Underwriter (if any), and each other person, if
any, who controls the company or such Underwriter within the meaning of the
Securities Act, against any losses, claims, judgments, damages or liabilities,
whether joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or allegedly untrue statement of a material fact contained in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement 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 such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigation or defending
any such loss, claim, damage, liability or action. Each selling holder’s
indemnification obligations hereunder shall be several and not joint and shall
be limited to the amount of any net proceeds actually received by such selling
holder in connection with the sale of the Registrable Securities by such selling
holder pursuant to the Registration Statement containing such untrue
statement.
4.3Conduct 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.
10
4.4Contribution.
4.4.1If 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.
4.4.2The 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 4.4.1. 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.
5.UNDERWRITING AND
DISTRIBUTION.
5.1Rule
144. The Company covenants
that it shall file all 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.
6.1Assignment;
No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties and
obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities by any such
holder. This Agreement and the provisions hereof shall be binding upon and shall
inure to the benefit of each of the parties and their respective successors and
the permitted assigns of the 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
6.1.
11
6.2Notices. 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:
Suite
18E, Tower A
Oriental
Kenzo Xxxxx
00
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx,
000000, Xxxxx
Fax No:.
00-00-00000000
Attn:
Xxxxxxxx Xxxxx, Chief Financial Officer
with a
copy to:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(000) 000-0000
Attn.:
Xxxxxxxx X. Xxxxxxxx, Esq.
To an
Investor, to:
Fax No.:
(___) ___-____
Attn.:
6.3Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
6.4Counterparts;
Facsimile Signatures. 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. Facsimile signatures shall be deemed to be original signatures
for all purposes of this Agreement.
6.5Entire
Agreement. This Agreement
(including all agreements entered into pursuant hereto and all certificates and
instruments delivered pursuant hereto and thereto) constitutes 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.
12
6.6Modifications
and Amendments. No
amendment, modification or termination of this Agreement shall be binding upon
any party unless executed in writing by such party.
6.7Titles 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.
6.8Waivers 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.
6.9Specific
Performance. Each of the
parties acknowledges and agrees that the other parties would be damaged
irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached.
Accordingly, each of the parties agrees that the other parties shall be entitled
to an injunction or injunctions (without the necessity of posting a bond or
other security) to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state or other
foreign court or governmental body having jurisdiction over the parties and the
matter, in addition to any other remedy to which they may be entitled, at law or
in equity.
6.10Remedies
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.
6.11Governing
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, without giving effect to any choice-of-law
provisions thereof that would compel the application of the substantive laws of
any other jurisdiction. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
or the United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the parties hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
6.12Waiver 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
13
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.
| CHARDAN 2008 CHINA ACQUISITION CORP. | ||
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By:
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Name:
Xxxxx Xxxxxxx
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Title:
Chief Executive Officer and
Director
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By:
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Name:
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Title:
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| [INVESTORS] | ||
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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