PIGGYBACK REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
THIS
PIGGYBACK REGISTRATION RIGHTS AGREEMENT
(this
“
Agreement”
), dated
as of ___________, 2007, is entered into by and among ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.,
a company established under the laws of the Cayman Islands (the “Company”)
and the
persons purchasing Common Stock (the “Investors”
and
each, individually, an “Investor”)
pursuant to those certain Subscription Agreements by and between the Company
and
the investor specified therein (the “Subscription
Agreements”
and
each such agreement, a “Subscription
Agreement”),
with
reference to the following facts:
WITNESSETH :
WHEREAS,
pursuant to the Subscription Agreements, the Investors are purchasing shares
of
Common Stock of the Company;
WHEREAS,
to
induce the Investors to enter into the Subscription Agreements, the Company
has
agreed to grant to those Investors certain rights regarding registration of
their respective Purchased Common Stock, as set forth in this Agreement.
WHEREAS,
all
capitalized terms used but not defined in this Agreement have the meanings
ascribed to such terms in the Subscription Agreements;
NOW,
THEREFORE,
in
consideration of the foregoing and the mutual promises and covenants herein
contained, the Parties agree as follows:
ARTICLE
1
DEFINITIONS
AND OTHER TERMS
Section
1.01 Definitions.
As used
in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the
terms defined):
“Agreement”
shall
have the meaning set forth in the preamble.
“Closing”
shall
have the meaning set forth in Section 2.06(a) of the Subscription Agreements.
“Company”
shall
have the meaning set forth in the preamble.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Investors”
shall
mean the Persons identified in the preamble, and any subsequent holder of Shares
pursuant to Section 6.
“Person”
shall
mean an individual, a partnership, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political subdivision
thereof).
“register”,
“registered”,
and
“registration”
refer
to a registration effected by preparing and filing a Registration Statement
in
compliance with the Securities Act (and any post-effective amendments filed
or
required to be filed) and the declaration or ordering of effectiveness of such
Registration Statement.
“Registration
Expenses”
shall
mean all expenses incurred by the Company in connection with a registration
under Section 2 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
“Registration
Statement”
shall
mean a Registration Statement filed by the Company with the SEC for a public
offering and sale of the Company’s securities (other than a Registration
Statement on Form S-8, Form S-4/F-4, or successor forms, or any Registration
Statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Selling
Expenses”
shall
mean all underwriting discounts and selling commissions applicable to the sale
of Registrable Securities.
“Shares”
shall
mean, with respect to any Investor, the shares of the Purchased Common Stock
of
the Company purchased by such Investors pursuant to the Subscription Agreements.
“Subscription
Agreements”
shall
have the meaning set forth in the preamble.
Section
1.02 Certain
References.
Unless
otherwise indicated, references in this Agreement to articles, sections,
clauses, recitals and exhibits are to the same contained in or attached to
this
Agreement.
ARTICLE
2
PIGGYBACK
REGISTRATIONS
Section
2.01 Piggyback
Rights.
Whenever
the Company proposes to register any of its common equity securities under
the
Securities Act (other than a registration statement on Form S-8 or on Form
S-4/F-4 or any similar successor forms thereto), whether for its own account
or
for the account of one or more stockholders of the Company, and the registration
form to be used may be used for any registration of the Shares (a “Piggyback
Registration”),
the
Company shall give prompt written notice (in any event within 10 business days
after its receipt of notice of any exercise of other demand registration rights)
to all Investors of its intention to effect such a registration and, subject
to
Sections 3(b) and 3(c), shall include in such registration all Shares with
respect to which the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company’s notice. The Company may
postpone or withdraw the filing or the effectiveness of a Piggyback Registration
at any time in its sole discretion.
Section
2.02 Priority
on Primary Registrations.
If a
Piggyback Registration is an underwritten primary registration on behalf of
the
Company, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering and/or that
the number of Shares proposed to be included in any such registration would
adversely affect the price per share of the Company’s equity securities to be
sold in such offering, the Company shall include in such registration (i) first,
the securities the Company proposes to sell, and (ii) second, the Shares
requested to be included therein by the Investors and other securities requested
to be included in such registration pro rata among all the holders of such
securities on the basis of the number of shares requested to be registered
by
such holders or as such holders may otherwise agree.
Section
2.03 Priority
on Secondary Registrations.
If a
Piggyback Registration is an underwritten secondary registration on behalf
of a
holder of the Company’s securities, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested
to
be included in such registration exceeds the number which can be sold in such
offering and/or that the number of Shares proposed to be included in any such
registration would adversely affect the price per share of the Company’s equity
securities to be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, and (ii)
second the Shares requested to be included therein by the Investors and other
securities requested to be included in such registration pro rata among all
the
holders of such securities on the basis of the number of shares requested to
be
registered by such holders or as such holders may otherwise agree.
Section
2.04 Selection
of Underwriters.
If any
Piggyback Registration is an underwritten primary offering, the Company shall
have the right to select the managing underwriter or underwriters to administer
any such offering.
Section
2.05 Termination
of Registration Rights.
The
rights of the Investors hereunder shall terminate with respect to each Investor
at such time as (i) such Investor holds Shares constituting less than two
percent (2%) of the outstanding stock of the Company or (ii) such Shares may
be
sold by such Investor under Rule 144 promulgated under the Securities Act during
any 90 day period.
ARTICLE
3
UNDERWRITING
Section
3.01 With
respect to any registration under this Agreement involving an underwriting
(which shall be at the sole discretion of the Company), the right of the
Investors to registration hereunder shall be conditioned upon its participation
in such underwriting, and the inclusion of all of the Shares in the underwriting
to the extent provided herein. The Investors shall (together with the Company
and any other security holder distributing securities through such underwriting)
enter into an underwriting agreement with the representative of the underwriter
or underwriters selected for underwriting by the Company, containing customary
(x) terms of offer and sale of the securities, payment provisions, underwriting
discounts and commissions; and (y) representations, warranties, covenants and
indemnities. Notwithstanding any other provision hereof, if the representative
of the underwriter determines that marketing factors require a “lock-up period,”
the Investors agree not to transfer any of their Shares (other than pursuant
to
the Registration Statement for such offering) during the ten (10) day period
prior to the effective date of the Registration Statement and for such
additional period as may be required by the underwriters, up to ninety (90)
days
after the effectiveness of the Registration Statement. If the Investors
disapprove of the terms of any such underwriting, they will be forced to
withdraw therefrom by written notice to the Company and the underwriter. Any
Shares or other securities excluded or withdrawn from such underwriting shall
be
withdrawn from such registration.
ARTICLE
4
EXPENSES
OF REGISTRATION
Section
4.01 The
Registration Expenses of the Company shall be borne by the Company, and the
registration expenses of each Investor, including each Investor’s attorney’s
fees, shall be borne by each Investor. All Selling Expenses shall be borne
by
the Investors.
ARTICLE
5
INDEMNIFICATION
Section
5.01 To
the
extent permitted by law, each Investor (severally and not jointly) will, if
Shares held by them are included in the securities as to which registration,
qualification or compliance is being effected, indemnify the Company, each
of
its directors, officers, agents and representatives and each underwriter, if
any, and each person controlling the Company or such underwriter, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, prospectus, offering
circular or other document made by such Investor, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Investor (severally and not jointly)
therein not misleading, and will reimburse the Company and such directors,
officers, agents, representatives, underwriters or control persons for any
legal
or any other expenses reasonably incurred in connection with investigating
or
defending any such claim, loss, damage, liability or action, in each case to
the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular or other document in reliance upon
and
in conformity with written information furnished to the Company by such Investor
and stated to be specifically for use therein; provided, however, that the
obligations of each Investor hereunder shall be limited to an amount equal
to
the proceeds to such Investor of securities sold in the registration.
The
indemnification obligations of the Investors under this Section 5 shall survive
the termination of this Agreement or the completion of any offering of Shares
in
a Registration Statement under this Agreement or otherwise.
ARTICLE
6
ASSIGNMENT
Section
6.01 Subject
to applicable state and federal securities laws and regulations, the rights
under this Agreement may be assigned by the Investors in the event of a lawful
transfer or sale by the Investor to a new shareholder; provided
that
such
transferring Investor transfers the entire amount of their respective shares
of
Purchase Common Stock purchased pursuant to the Subscription Agreements to
such
new shareholder; and, provided
further that
such new
shareholder enters into an agreement to be bound by the terms of this Agreement.
ARTICLE
7
MISCELLANEOUS
PROVISIONS
Section
7.01 No
Third-Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any Person other than
the
Parties and their respective successors and permitted assigns.
Section
7.02 Headings.
The
section headings contained in this agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this Agreement.
Section
7.03 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of British Columbia and the laws of Canada, without regard to its
choice of law principles.
Section
7.04 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which when taken together shall constitute one
and
the same agreement.
Section
7.05 Additional
Parties.
Notwithstanding anything to the contrary contained herein, if the Company issues
additional shares of common equity to a purchaser after the date hereof pursuant
to the Offering as described in the Subscription Agreements, such purchaser
may
become a party to this Agreement, without further action by the Investors
hereunder or the Company, by executing and delivering a counterpart signature
page hereto agreeing to be bound by and subject to the terms of this Agreement
as an Investor hereunder.
Section
7.06 Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Company and Investors owning two-thirds
of
the Shares. No waiver by any Party or any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach
of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence. No waiver shall be deemed effective
unless such waiver is in writing and signed by the party whose rights are being
waived.
Section
7.07 Severability.
Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction.
Section
7.08 Construction.
Each
Investor acknowledges and agrees that this Agreement was prepared solely by
the
Company on its own behalf, and that each Investor has availed, or had the
opportunity to avail, him/her/itself of the advice of legal counsel in respect
hereof. Notwithstanding the foregoing, in the event an ambiguity or question
of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
The
word “including” shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
Section
7.09 Specific
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 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 Canada, the United
States, Hong Kong or any state or province thereof 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.
IN
WITNESS WHEREOF,
the
parties hereto have executed or have caused this Agreement to be executed by
their respective authorized officers or representatives on the date first above
written.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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