REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made
and entered into as of January [__], 2010 among Asia Special Situation
Acquisition Corp., a Cayman Islands corporation (“ASSAC”), and
_________________________ (the “ASSAC
Shareholder”).
ASSAC and
the ASSAC Shareholder hereby agree as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Acquisition Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Acquisition
Agreement” means [INSERT RELEVANT MERGER, ASSET PURCHASE OR EXCHANGE
AGREEMENT].
“Advice” shall have
the meaning set forth in Section 6(d).
“Effectiveness Date”
means, with respect to the initial Registration Statement required to be filed
hereunder, July 31, 2010.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall have the
meaning set forth in Section 2(b).
“Event Date” shall
have the meaning set forth in Section 2(b).
“Exchange
Act” means the Securities and Exchange Act of 1934, as amended.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying, Party”
shall have the meaning set forth in Section 5(c).
“Losses” shall have
the meaning set forth in Section 5(a).
“Ordinary Shares”
means the ordinary shares, par
value of US$0.0001, per share of ASSAC.
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities” means all of the Conversion Shares issued or issuable to the
ASSAC Shareholder under the Acquisition Agreement.
“Registration
Statement” means the registration statements required to be filed
hereunder and any additional registration statements contemplated by Section
3(c), including (in each case) the Prospectus, amendments and supplements to
such registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
“Rule 415” means Rule
415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same purpose and effect as such
Rule.
“Rule 424” means Rule
424 promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same purpose and effect as such
Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Selling Shareholder
Questionnaire” shall have the meaning set forth in Section
3(a).
“Trading Day” shall
mean any day other than a Saturday, Sunday or a day on which banks in New York
City or the New York Stock Exchange are authorized or obligated by applicable
law or executive order to close or are otherwise generally closed.
2. Shelf
Registration.
(a) ASSAC
shall prepare and file with the United States Securities and Exchange Commission
(the “SEC”) a
“Shelf” Registration Statement covering the resale of the Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-3 (or such other form as may be
appropriate in accordance herewith) and shall contain (unless otherwise directed
by the ASSAC Shareholder) substantially the “Plan of Distribution” attached
hereto as Annex A. Subject to the terms of this Agreement, ASSAC shall use its
best efforts to (i) cause a Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof, but
in any event prior to the Effectiveness Date, and (ii) to keep such Registration
Statement continuously effective under the Securities Act until all Registrable
Securities covered by such Registration Statement have been sold, or may be sold
without volume restrictions pursuant to Rule 144(k), as determined by the
counsel to ASSAC pursuant to a written opinion letter to such effect, addressed
and acceptable to ASSAC’s transfer agent and the ASSAC Shareholder (the “Effectiveness
Period”). ASSAC shall telephonically confirm with the SEC effectiveness
of a Registration Statement as of 4:00 pm Eastern time on a Trading Day prior to
the Effectiveness Date. ASSAC shall immediately notify the ASSAC Shareholder via
facsimile of the effectiveness of a Registration Statement on the same Trading
Day that ASSAC telephonically confirms effectiveness with the SEC, which shall
be the date requested for effectiveness of a Registration
Statement. ASSAC shall file, by 9:30 a.m. Eastern time on the second
Trading Day following the date on which the initial Registration Statement filed
by ASSAC pursuant to this Agreement is first declared effective by the SEC, a
final Prospectus with the SEC as required by Rule 424. Failure to so notify the
ASSAC Shareholder within two Trading Days of such notification of effectiveness
or failure to file a final Prospectus as aforesaid shall be deemed an Event
under Section 2(b).
(b) If
(i) ASSAC files a Registration Statement without affording the ASSAC Shareholder
the opportunity to review and comment on the same as required by Section 3(a)
herein; (ii) a Registration Statement filed or required to be filed hereunder is
not declared effective by the SEC by the Effectiveness Date, or (iii) after the
Effectiveness Date, a Registration Statement ceases for any reason to remain
continuously effective as to all Registrable Securities for which it is required
to be effective, or the ASSAC Shareholder is otherwise not permitted to utilize
the Prospectus therein to resell such Registrable Securities for more than 45
consecutive calendar days or more than an aggregate of 90 calendar days during
any 12-month period (which need not be consecutive calendar days) (any such
failure or breach being referred to as an “Event”, and for
purposes of clause (i) or (ii) the date on which such Event occurs, or for
purposes of clause (iii) the date on which such 45 or 90 calendar day period, as
applicable, is exceeded being referred to as the “Event Date”), then in
addition to any other rights the ASSAC Shareholder may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, ASSAC shall pay to the ASSAC Shareholder
partial liquidated damages (the “Partial Liquidated
Damages” by delivering to the ASSAC Shareholder a number of Ordinary
Shares equal to 1.0% of the quotient obtained by dividing (x) the number of
Registrable Securities that are not then registered for resale pursuant to an
effective Registration Statement by (y) the greater of the closing price of
ASSAC’s Ordinary Shares as traded on the NYSE Amex on the date of such payment
or $7.50. The parties agree that the maximum aggregate liquidated damages
payable to the ASSAC Shareholder under this Agreement shall be 10.0% of the
Estimated NAV.
3. Registration
Procedures.
In
connection with ASSAC’s obligations with respect to the registration of the
Registrable Securities hereunder, ASSAC shall:
(a) Not
less than five Trading Days prior to the filing of the Registration Statement
and the filing of any related Prospectus or any amendment or supplement thereto
(including any document that would be incorporated or deemed to be incorporated
therein by reference), (i) furnish to the ASSAC Shareholder copies of all such
documents proposed to be filed, which documents will be subject to the review of
the ASSAC Shareholder, and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of counsel to the ASSAC Shareholder to
conduct a reasonable investigation within the meaning of the Securities
Act.
(b) Not
file a Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the ASSAC Shareholder shall reasonably object,
provided that, ASSAC is notified of such objection in writing no later than four
Trading Days after the ASSAC Shareholder has been so furnished copies of the
Registration Statement or any related Prospectus or amendment or supplement
thereto. The ASSAC Shareholder agrees to furnish to ASSAC a completed
Questionnaire in the form attached to this Agreement as Annex B (a “Selling Shareholder
Questionnaire”) not less than two Trading Days prior to the Filing Date
or by the end of the fourth Trading Day following the date on which the ASSAC
Shareholder receives draft materials in accordance with this
Section.
(c) (i)
prepare and file with the SEC such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and to prepare and file with the SEC such additional Registration
Statements in order to register for resale under the Securities Act all of the
Registrable Securities; (ii) amend or supplement the related Prospectus by any
required Prospectus supplement (subject to the terms of this Agreement), and as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably possible to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and as promptly as
reasonably possible provide the ASSAC Shareholder true and complete copies of
all correspondence from and to the SEC relating to a Registration; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in accordance
(subject to the terms of this Agreement) with the intended methods of
disposition by the ASSAC Shareholder thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented.
(d) Notify
the ASSAC Shareholder (which notice shall, pursuant to clauses (iii) through
(vi) of this Section 3(d), shall also be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made) as
promptly as possible (and, in the case of (i)(A) below, not less than
one Trading Day prior to such filing) and (if requested by any such
Person) confirm such notice in writing no later than one Trading Day following
the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the SEC
notifies ASSAC whether there will be a “review” of such Registration Statement
and whenever the SEC comments in writing on such Registration Statement; and (C)
with respect to a Registration Statement or any post-effective amendment, when
the same has become effective; (ii) of any request by the SEC or any other
Federal or state governmental authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement covering any
or all of the Registrable Securities or the initiation of any Proceedings for
that purpose; (iv) of the receipt by ASSAC of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; (v) of the occurrence of any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made in
a Registration Statement or Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus, as
the case may be, it will not contain any 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, in light of the circumstances under which they were
made, not misleading; and (vi) the occurrence or existence of any pending
corporate development with respect to ASSAC (including its subsidiaries) that
ASSAC believes may be material and that, in the determination of ASSAC, makes it
not in the best interest of ASSAC to allow continued availability of a
Registration Statement or Prospectus; provided
that any and all of such information shall remain confidential to the ASSAC
Shareholder until such information otherwise becomes public, unless disclosure
by the ASSAC Shareholder is required by law; provided,
further, that notwithstanding the ASSAC Shareholder’s agreement to keep such
information confidential, the ASSAC Shareholder makes no acknowledgement that
any such information is material, non-public information; or (vi) any time any
of the representations and warranties of ASSAC contained in any agreement
contemplated hereby ceases to be true and correct in all material
respects;
(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of (i) any order suspending the effectiveness of a Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(f) If
requested by the ASSAC Shareholder, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement such
information as ASSAC reasonably agrees should be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after ASSAC has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(g) Furnish
to the ASSAC Shareholder, without charge, at least one conformed copy of such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by the ASSAC
Shareholder, and all exhibits to the extent requested by the ASSAC Shareholder
(including those previously furnished or incorporated by reference) promptly
after the filing of such documents with the SEC.
(h) Promptly
deliver to the ASSAC Shareholder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably
request.
(i) Subject
to the terms of this Agreement, ASSAC, on behalf of itself, its successors and
assigns, hereby consents to the use of such Prospectus and each amendment or
supplement thereto by the ASSAC Shareholder in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto, except after the giving of any notice pursuant to Section
3(d).
(j) Effect
a filing with respect to the public offering contemplated by the Registration
Statement (an “Issuer
Filing”) with the Financial Industry Regulatory Authority (“FINRA”) pursuant to
applicable FINRA Rules (including, without limitation FINRA Rule [5110]) within
one Trading Day of the date that the Registration Statement is first filed with
the SEC and pay the filing fee required by such Issuer Filing. ASSAC shall use
its best reasonable efforts to pursue the Issuer Filing until FINRA issues a
letter confirming that it does not object to the terms of the offering
contemplated by the Registration Statement.
(k) Prior
to any resale of Registrable Securities by the ASSAC Shareholder, use its best
efforts to register or qualify or cooperate with the ASSAC Shareholder in
connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale by
the ASSAC Shareholder under the securities or Blue Sky laws of such
jurisdictions within the United States as the ASSAC Shareholder reasonably
requests in writing, to keep each registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration
Statement; provided, that ASSAC shall not be required to (i) qualify generally
to do business in any jurisdiction where it is not then so qualified, (ii)
subject ASSAC to any material tax in any such jurisdiction where it is not then
so subject or (iii) file a general consent to service of process in any such
jurisdiction.
(l) If
requested by the ASSAC Shareholder, cooperate with the ASSAC Shareholder to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to a
Registration Statement, which certificates shall be free, to the extent
permitted by the Securities Act, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names
as the ASSAC Shareholder may request.
(m) Upon
the occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to a Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither a Registration Statement nor such Prospectus will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If ASSAC
notifies the ASSAC Shareholder in accordance with clauses (iii) through (v) of
Section 3(d) above to suspend the use of any Prospectus until the requisite
changes to such Prospectus have been made, then the ASSAC Shareholder shall
suspend use of such Prospectus. ASSAC will use its best efforts to ensure that
the use of the Prospectus may be resumed as promptly as is practicable. ASSAC
shall be entitled to exercise its right under this Section 3(m) to suspend the
availability of a Registration Statement and Prospectus, subject to the payment
of partial liquidated damages pursuant to Section 2(b) commencing thirty days
after the applicable suspension.
(n) Comply
with all applicable rules and regulations of the SEC.
(o) Use
its best efforts to cause all Registrable Securities relating to the
Registration Statement, to continued to be quoted or listed on
a securities exchange, quotation system or market, if any, on which
similar securities issued by ASSAC are then listed or traded.
(p) ASSAC
may require the ASSAC Shareholder to furnish to ASSAC a statement as to the
number of Ordinary Shares beneficially owned by the ASSAC Shareholder and, if
required by the SEC, the persons or entities thereof that have voting and
dispositive control over the shares. During any periods that ASSAC is unable to
meet its obligations hereunder with respect to the registration of the
Registrable Securities solely because the ASSAC Shareholder fails to furnish
such information within five Trading Days of ASSAC’s request, any liquidated
damages that are accruing at such time shall be tolled and any Event that may
otherwise occur solely because of such delay shall be suspended until such
information is delivered to ASSAC.
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by ASSAC, except as and to the extent
specified in this Section 4, shall be borne by ASSAC whether or not the
Registration Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any securities exchange or market on which
Registrable Securities are required hereunder to be listed, if any (B) with
respect to filing fees required to be paid to the Financial Industry Regulatory
Authority, Inc. (“FINRA”) (including,
without limitation, pursuant to FINRA Rule 5110) and (C) in compliance with
state securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel for the ASSAC Shareholder in connection with Blue Sky
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the ASSAC Shareholder may designate)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is requested by the ASSAC Shareholder), (iii) messenger, telephone
and delivery expenses, (iv) Securities Act liability insurance, if ASSAC so
desires such insurance, and (v) fees and expenses of all other Persons retained
by ASSAC in connection with the consummation of the transactions contemplated by
this Agreement, including, without limitation, ASSAC’s independent public
accountants (including the expenses of any comfort letters or costs associated
with the delivery by independent public accountants of a comfort letter or
comfort letters). In addition, ASSAC shall be responsible for all of
its internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), and the expense of any annual audit. ASSAC shall
not be responsible for any discounts, commissions, transfer taxes or other
similar fees incurred by the ASSAC Shareholder or its shareholders in connection
with the sale of the Registrable Securities or for any legal expenses incurred
by the ASSAC Shareholder in connection with the filing and review of the
Registration Statement.
5. Indemnification.
(a) Indemnification by
ASSAC. ASSAC shall, notwithstanding any termination of this Agreement,
indemnify and hold harmless the ASSAC Shareholder, the officers, directors,
members, stockholders, partners, agents, brokers (including brokers who offer
and sell Registrable Securities as principal as a result of a pledge or any
failure to perform under a margin call of Ordinary Shares), investment managers
and advisors, legal counsel and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles, notwithstanding a
lack of such title or any other title) of each of them, each Person who controls
the ASSAC Shareholder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, members,
stockholders, partners, agents and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles, notwithstanding a
lack of such title or any other title) of each such controlling Person, to the
fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively, “Losses”), as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, or (2) any violation or alleged violation by
ASSAC of the Securities Act, Exchange Act or any state securities law, or any
rule or regulation thereunder, in connection with the performance of its
obligations under this Agreement, except to the extent, but only to the extent,
that (i) such untrue statements or omissions are based solely upon information
regarding the ASSAC Shareholder furnished in writing to ASSAC by the ASSAC
Shareholder expressly for use therein, or to the extent that such information
relates to the ASSAC Shareholder or the ASSAC Shareholder’s proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by the ASSAC Shareholder expressly for use in a Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto (it being understood that the ASSAC Shareholder has approved
Annex A hereto for this purpose) or (ii) in the case of an occurrence of an
event of the type specified in Section 3(d)(iii)-(vi), the use by the ASSAC
Shareholder of an outdated or defective Prospectus after ASSAC has notified the
ASSAC Shareholder in writing that the Prospectus is outdated or defective and
prior to the receipt by the ASSAC Shareholder of the Advice contemplated in
Section 6(d). ASSAC shall notify the ASSAC Shareholder promptly of the
institution, threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which ASSAC is
aware.
(b) Indemnification by the ASSAC
Shareholder. The ASSAC Shareholder shall indemnify and hold
harmless ASSAC, and each of its directors, officers, agents and employees, each
Person who controls ASSAC (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such
title or any other title, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based
solely upon: (x) the ASSAC Shareholder’s failure to comply with the prospectus
delivery requirements of the Securities Act or (y) any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading (i) to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by the ASSAC Shareholder to ASSAC
specifically for inclusion in such Registration Statement or such Prospectus or
(ii) to the extent that such information relates to the ASSAC Shareholder’s
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by the ASSAC Shareholder expressly for use in a
Registration Statement (it being understood that the ASSAC Shareholder has
approved Annex A hereto for this purpose), such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (iii) in the case of an
occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use
by the ASSAC Shareholder of an outdated or defective Prospectus after ASSAC has
notified the ASSAC Shareholder in writing that the Prospectus is outdated or
defective and prior to the receipt by the ASSAC Shareholder of the Advice
contemplated in Section 6(d). In no event shall the liability of the ASSAC
Shareholder hereunder be greater in amount than the dollar amount of the net
proceeds received by the ASSAC Shareholder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “Indemnified Party”),
such Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and counsel to the Indemnified Party shall
reasonably believe that a material conflict of interest is likely to exist if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification hereunder.
(d) Contribution. If
the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses, then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in this Section was available to such party in accordance with its
terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), the
ASSAC Shareholder shall not be required to contribute, in the
aggregate, any amount in excess of the amount by which the net proceeds actually
received by the ASSAC Shareholder from the sale of the Registrable Securities
subject to the Proceeding exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, except in the case of fraud by the
ASSAC Shareholder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Rule 144
As
long as the ASSAC Shareholder owns Registrable Securities, ASSAC covenants to
timely file (or obtain extensions in respect thereof and file within any
applicable grace period) all reports required to be filed by ASSAC with the SEC
as a foreign private issuer. As long as the ASSAC Shareholder owns
Ordinary Shares, if ASSAC is not required to file reports under the Exchange
Act, it will prepare and furnish to the ASSAC Shareholder and make publicly
available in accordance with Rule 144(c) promulgated under the Securities Act
annual and quarterly financial statements, together with a discussion and
analysis of such financial statements in form and substance substantially
similar to those that would otherwise be required to be included in reports
required to be filed by foreign private issuers under the Exchange Act, as well
as any other information required thereby, in the time period that such filings
would have been required to have been made under the Exchange
Act. ASSAC further covenants that it will take such further action as
the ASSAC Shareholder may reasonably request, all to the extent reasonably
required from time to time to enable the ASSAC Shareholder to sell Conversion
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 promulgated under the Securities Act,
including providing any legal opinions relating to such sale pursuant to Rule
144. Upon the request of the ASSAC Shareholder, ASSAC shall deliver
to the ASSAC Shareholder a written certification of a duly authorized officer as
to whether it has complied with such requirements.
7. Miscellaneous.
(a) Remedies. In
the event of a breach by ASSAC or by the ASSAC Shareholder, of any of their
respective obligations under this Agreement, the ASSAC Shareholder or ASSAC, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. ASSAC and the ASSAC
Shareholder agree that monetary damages would not provide adequate compensation
for any losses incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall not assert or shall
waive the defense that a remedy at law would be adequate.
(b) Compliance. The
ASSAC Shareholder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to a Registration
Statement.
(c) Discontinued
Disposition. The ASSAC Shareholder agrees by its acquisition
of Registrable Securities that, upon receipt of a notice from ASSAC of the
occurrence of any event of the kind described in Section 3(d)(iii) through (vi),
the ASSAC Shareholder will forthwith discontinue disposition of such Registrable
Securities under a Registration Statement until it is advised in writing (the
“Advice”) by
ASSAC that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. ASSAC will use its best efforts to
ensure that the use of the Prospectus may be resumed as promptly as is
practicable. ASSAC agrees and acknowledges that any periods during which the
ASSAC Shareholder is required to discontinue the disposition of the Registrable
Securities hereunder shall be subject to the provisions of Section
2(b).
(d) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by ASSAC and the ASSAC
Shareholder.
(e) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the Subscription
Agreement.
(f) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of the ASSAC Shareholder. ASSAC may not assign
(except by merger) its rights or obligations hereunder without the prior written
consent of the ASSAC Shareholder. The rights of the ASSAC Shareholder
hereunder shall be assignable without the consent of ASSAC.
(g) No Inconsistent
Agreements. Neither ASSAC nor any of its Subsidiaries has
entered, as of the date hereof, nor shall ASSAC or any of its Subsidiaries, on
or after the date of this Agreement, enter into any agreement with respect to
its securities, that would have the effect of impairing the rights granted to
the ASSAC Shareholder in this Agreement or otherwise conflicts with the
provisions hereof. Except as set forth on Schedule 7(g), neither ASSAC nor any
of its subsidiaries has previously entered into any agreement granting any
registration rights with respect to any of its securities to any Person that
have not been satisfied in full.
(h) Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf’ format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf’ signature page were an original
thereof.
(i) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Acquisition Agreement.
(j) Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.
(k) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(l) Headings. The
headings in this Agreement are for convenience only, do not constitute a part of
this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
**********************
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
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ASIA
SPECIAL SITUATION ACQUISITION CORP.
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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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SCHEDULE
7(g)
ANNEX
A
Plan of
Distribution
The ASSAC
Shareholder and/or any of their shareholders, pledgees, assignees and
successors-in-interest (the “Selling Stockholders”) may, from time to
time, sell any or all of their Ordinary Shares on the NYSE Amex Exchange or any
other stock exchange, market or trading facility on which the shares are traded
or in private transactions. These sales may be at fixed or negotiated prices.
The Selling Stockholders may use any one or more of the following methods when
selling shares:
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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privately
negotiated transactions;
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settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
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• broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per share;
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through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
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a
combination of any such methods of sale;
or
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any
other method permitted pursuant to applicable
law.
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The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”), if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in compliance with
applicable FINRA rules (including FINRA rules applicable in the case of a
principal transaction a markup or markdown).
In
connection with the sale of Ordinary Shares or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of Ordinary
Shares in the course of hedging the positions they assume. The
Selling Stockholders may also sell Ordinary Shares short and deliver these
securities to close out their short positions, or loan or pledge Ordinary Shares
to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each Selling Stockholder has informed ASSAC
that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute Ordinary Shares. In no event shall
any broker-dealer receive fees, commissions and markups which, in the aggregate,
would exceed eight percent (8%).
ASSAC is
required to pay certain fees and expenses incurred by them incident to the
registration of the shares. ASSAC has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act, including Rule 172 thereunder. In addition, any
securities covered by this prospectus which qualifies for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting in connection
with the proposed sale of the resale shares by the Selling
Stockholders.
We agreed
to keep this prospectus effective until the earlier of (i) the date on which the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale shares will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares may not be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934, any
person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to the Ordinary Shares for the
applicable restricted period, as defined in Regulation M, prior to the
commencement of the distribution. In addition, the Selling Stockholders will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing of
purchases and sales of Ordinary Shares by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the Selling
Stockholders and have informed them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
Annex
B
ASIA
SPECIAL SITUATION ACQUISITION CORP.
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of Ordinary Shares (the “Registrable
Securities”) of Asia Special Situation Acquisition Corp., a Cayman
Islands corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “SEC”) a registration
statement (the “Registration.
Statement”) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy of the Registration
Rights Agreement is available from the Company upon request at the address set
forth below. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Registration Statement and
the related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Securityholder”) of Registrable
Securities hereby elects to include the Registrable Securities owned by it in
the Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
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(a)
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Full
Legal Name of Selling
Securityholder
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___________________________________________________________________
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(b)
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Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities are
held:
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___________________________________________________________________
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(c)
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Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by the
questionnaire):
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2. Address
for Notices to Selling Securityholder:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Telephone: _____________________________________________________________________
Fax: __________________________________________________________________________
Contact
Person: _________________________________________________________________
3. Broker-Dealer
Status:
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(a)
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Are
you a broker-dealer?
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Yes No
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(b)
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if
“yes” to Section 3(a), did you receive your Registrable Securities as
compensation for investment banking services to the
Company.
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Yes No
Note:
If no, the SEC’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
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(c)
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Are
you an affiliate of a
broker-dealer?
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Yes No
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(d)
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If
you are, an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and at the
time of the purchase of the Registrable Securities to be resold, you had
no agreements or understandings, directly or indirectly, with any person
to distribute the Registrable
Securities?
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Yes No
Note:
If no, the SEC’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
4. Beneficial
Ownership of Other Securities of the Company Owned by the
SellingSecurityholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the securities
issuable pursuant to the Subscription Agreement.
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(a)
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Type
and Amount of other securities beneficially owned by the Selling
Securityholder:
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_________________________________________________________________________
_________________________________________________________________________
5. Relationships
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any
exceptions here:
_________________________________________________________________________
_________________________________________________________________________
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 5 and the inclusion of such
information in the Registration Statement and the related prospectus and any
amendments or supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
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Beneficial
Owner: ____________________________
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By:
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Name:
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Title:
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PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO: