UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
6-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the
month of March 2010
HAMBRECHT ASIA ACQUISITION
CORP.
(Translation
of registrant’s name into English)
13/F
Tower 2
New World
Tower
18 Queens
Road Central
Hong
Kong
(Address
of Principal Executive Offices)
Indicate
by check mark whether the registrant files or will file annual reports under
cover of Form 20-F or Form 40-F. Form 20-F
x
Form 40-F
o
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1):
o
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7):
o
Indicate
by check mark whether the registrant by furnishing the information contained in
this Form is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes
o
No
x
If “Yes”
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82-_______________.
IMPORTANT
NOTICE
This
Report of Foreign Private Issuer on Form 6-K, including the exhibits filed
herewith, contains forward-looking statements that involve substantial risks and
uncertainties. Other than statements of historical facts, all statements
included in this report regarding the issuer’s strategy, future operations,
future financial position, prospects, plans and objectives of management, are
forward-looking statements. The words “anticipate,” “believe,” “estimate,”
“expect,” “intend,” “may,” “plan,” “predict,” “project,” “will,” “would” and
similar expressions are intended to identify forward-looking statements,
although not all forward-looking statements contain these identifying words. The
issuer may not actually achieve the plans, intentions or expectations disclosed
in the forward-looking statements, and investors should not place undue reliance
on the forward-looking statements. Actual results or events could differ
materially from the plans, intentions and expectations disclosed in the
forward-looking statements made by the issuer. Important factors that could
cause actual results or events to differ materially from the forward-looking
statements, include among others: changing principles of generally accepted
accounting principles; outcomes of government reviews, inquiries, investigations
and related litigation; compliance with government regulations; legislation or
regulatory environments, requirements or changes adversely affecting the LCD
market in China; fluctuations in customer demand; management of rapid growth;
changes in government policy; the fluctuations in sales of LCD products in
China; China’s overall economic conditions and local market economic conditions;
the issuer’s ability to expand through strategic acquisitions and establishment
of new locations; and geopolitical events. Further, the forward-looking
statements do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures, collaborations or investments made by the
issuer. The issuer does not assume any obligation to update any forward-looking
statements.
Completion
of Acquisition
On March
11, 2010, the shareholders of the issuer Hambrecht Asia Acquisition Corp.
approved the proposed acquisition of all of the outstanding shares of Honesty
Group Holdings Ltd. (“Honesty Group”), discussed in the Report of Foreign
Private Issuer filed by the Company on February 18, 2010, and the proxy
statement, dated February 17, 2010 (which we refer to as the “proxy statement”),
filed as an exhibit to that Report with respect to a extraordinary general
meeting of the holders of the ordinary shares of Hambrecht Asia. The
shareholders also approved a change in the name of the issuer to SGOCO
Technology Ltd. The vote of shareholders was 3,128,488 shares (or
59.04% of the outstanding) in favor of the transaction, 1,263,189 shares (or
23.84%) against, with 404,795 shares abstaining. Holders of 3,252,888
shares (or 67.82% or the outstanding) voted in favor of the name change,
1,020,689 shares (or 21.28%) against, with 522,895 shares
abstaining. We sometimes refer to the issuer as “Hambrecht Asia”
prior to completion of the transactions and “SGOCO Technology”
afterward. Pursuant to the terms of the issuer’s Amended and Restated
Memorandum of Association, public shareholders who voted against the transaction
were entitled to elect to have their shares redeemed at $7.98 per
share. Holders of 1,263,189 shares (or 29.80% of the outstanding)
elected to have their shares redeemed.
In
addition, at the meeting, holders of the issuer’s outstanding warrants to
purchase ordinary shares approved the amendment to the warrant agreement under
which the warrants were issued to increase the exercise price per share of the
warrants from $5.00 to $8.00 and to extend by one year the exercise period, and
to provide for the redemption of the publicly-held warrants, at the option of
the holder, for $0.50 per share upon the closing of the
acquisition. Holders of 4,450,050 of the warrants (or 76.87% of the
outstanding) voted to approve the amendment to the warrants, 335,800 voted
against, and 186,900 abstained. Holders of approximately 1.9 million
of the warrants elected to retain their warrants, as amended, with the new
exercise price of $8.00 per share and March 12, 2014 expiration
date.
Shareholders
holding 1,263,189 of the outstanding ordinary shares (29.80% of the then
outstanding publicly-held shares) elected to have their shares redeemed at the
redemption price of $7.98 per share. Approximately 2.9 million
warrants will be redeemed at $0.50 each. Shareholders and warrantholders who
chose to have their securities redeemed holders have until April 12, 2010 to
surrender their securities with completed transmittal letters.
On March
12, 2010 (the “Closing Date”), the acquisition by the issuer of the outstanding
capital stock of Honesty Group was completed, pursuant to the terms of the Share
Exchange Agreement, dated as of February 12, 2010, as amended by Amendment No. 1
to Share Exchange Agreement, dated as of March 11, 2010 (together,
the “Share Exchange Agreement”). The acquisition resulted
in the issuance of: (i) 8,500,000 of the ordinary shares of Hambrecht Asia
(the “Acquisition Shares”) to former shareholders of Honesty Group, and (ii)
5,800,000 of the ordinary shares of Hambrecht Asia (the “Escrow Shares”) to the
former shareholders of Honesty Group, to be held in escrow and released if
certain income milestones are met by the combined company. The former
shareholders of Honesty Group are Sun Zone Investments Limited (“Sun Zone”), a
company organized under the laws of the British Virgin Islands, and Mr. Sze Kit
Ting, a resident of Hong Kong. We sometimes refer to Sun Zone and Mr.
Ting as the “Honesty Shareholders.
As
previously reported, in connection with the transactions, Hambrecht Asia entered
into a variety of other agreements. Hambrecht Asia entered into agreements to
purchase 2,147,143 ordinary shares from the holders thereof in a series of
transactions for an aggregate price of $17,285,810.79. In addition,
as previously reported, the original shareholders of Hambrecht (referred to as
the “Sponsors”) who acquired ordinary shares (“Sponsor Shares”) and warrants to
acquire ordinary shares (“Sponsor Warrants”) prior to Hambrecht Asia’s initial
public offering agreed to forfeit 124,738 of their Sponsor Shares and 1,300,000
of their Sponsor Warrants to purchase ordinary shares, constituting all of the
outstanding Sponsor Warrants, other than the Sponsor Warrants to purchase
250,000 ordinary shares which were transferred without consideration to Pope
Investments II, LLC. Mr. Burnette Or, the President of SGOCO
Technology as of the Closing Date, granted Pope Investments II, LLC a put
option, guaranteed by Messrs. Robert Eu (former Chairman of the Board and
current director) and John Wang (former Chief executive Officer) to purchase
250,000 ordinary shares at $8.00 exercisable for a three month period commencing
February 15, 2011. In addition, 766,823 Sponsor Shares were placed in
escrow pending satisfaction of certain conditions described in Amendment No. 1
to the Share Exchange Agreement (filed as Exhibit 2.1 to Hambrecht Asia’s Form
6-K Current Report filed with the Securities and Exchange Commission on March
11, 2010).
In
addition, the transaction resulted in various other changes in the business,
operations and management of SGOCO Technology, including: (i) the approval of
the name change to SGOCO Technology; (ii) the resignation of the prior officers
and directors of Hambrecht Asia, other than Robert Eu and David Hao Wu, who will
remain as directors of SGOCO Technology; and (iii) the appointment of new
directors and officers of SGOCO Technology, all as described in the proxy
statement.
The
current officers and directors of SGOCO Technology are listed
below. Brief biographies of each of them can be found in the proxy
statement.
|
Name
|
|
Age
|
|
Position
|
|
Robert
Lu
|
|
47
|
|
Chief
Executive Officer
|
|
Burnette
Or
|
|
43
|
|
President
and Director
|
|
Tin
Man Or
|
|
67
|
|
Director
|
|
Weiwei
Shangguan
|
|
37
|
|
Director
|
|
Frank
Wu
|
|
38
|
|
Director
|
|
PikYue
Teresa Hon
|
|
37
|
|
Director
|
|
David,
Hao Wu
|
|
35
|
|
Director
|
|
Robert
Eu
|
|
47
|
|
Director
|
Entry
into a Material Definitive Agreement
In
connection with and as a condition to the completion of the acquisition,
Hambrecht Asia entered into the amendment to the Warrant Agreement with
Continental Stock Transfer & Trust Company approved by the warrantholders at
the special meeting of warrantholders on March 11, 2010. As
previously disclosed, the amendment to warrant agreement increased the exercise
price per share of the outstanding warrants to $8.00 and extended the exercise
time for the warrants to March 12, 2014. The amendment to Warrant
Agreement is filed herewith as Exhibit 4.1.
As
described in the proxy statement and the Share Exchange Agreement, the Sponsors,
the Honesty Shareholders and Hambrecht Asia entered into a Sponsor Agreement,
dated as of February 12, 2010, which was amended by Amendment No. 1 to Sponsor
Agreement, dated March 11, 2010, pursuant to which the Sponsors agreed to
forfeit 124,736 ordinary shares and all of their 1,550,000 warrants other than
250,000 warrants transferred to an investor without consideration to the
transferring Sponsor. In addition, the Sponsors agreed to escrow
766,823 of their remaining 935,089 ordinary shares pending satisfaction of
certain conditions set forth therein. Those conditions include SGOCO
Technology reaching certain milestones for “Income from Exiting Operations” as
defined in the Share Exchange Agreement, as well as: (i) Messrs. Robert Eu and
John Wang providing 30 hours per month in services to SGOCO Technology in
connection with investor relations, listing on the Nasdaq Global Stock Market or
Nasdaq Global Select Stock Market, introducing investors and advisors; (ii)
listing of SGOCO Technology on such stock markets if the issuer acts in good
faith to obtain such a listing once the listing criteria are met; and (iii)
providing the opportunity for the issuer to raise an additional $15 million in
equity subject to meeting certain prescribed pricing criteria. The
Sponsor Agreement and Amendment No. 1 to Sponsor Agreement are filed herewith as
Exhibits 10.2 and 10.3.
In
connection with the issuance of the Escrow Shares and the escrow of the escrowed
Sponsors Shares, Hambrecht Asia, the Sponsors, and the Honesty Shareholders
entered into an escrow agreement (“Escrow Agreement”) with Grand Pacific
Investment Limited as escrow agent, pursuant to which the escrow agent will hold
the Escrow Shares and the escrowed Sponsor Shares pending satisfaction of
certain conditions within the applicable time periods. If the
conditions are not met, some or all of the Escrow Shares and/or the escrowed
Sponsor Shares, will be delivered to SGOCO Technology and canceled and returned
to the status of authorized and unissued ordinary shares. The Escrow Agreement
is filed as Exhibit 10.1 to this Current Report on Form 6-K.
As a
condition to the completion of the transactions under the Share Exchange
Agreement, Hambrecht Asia entered into a Registration Rights Agreement, dated
March 12, 2010, with the Honesty Shareholders pursuant to which the issuer
agreed to register for resale on request shares issued to the Honesty
Shareholders. The Registration Rights Agreement is filed as Exhibit
10.4 to this Current Report on Form 6-K.
Unregistered
Sales of Equity Securities
The
Acquisition Shares and the Escrow Shares were issued to the Honesty Shareholders
were issued in a transaction exempt from the registration requirements of the
Securities Act of 1933, as amended, in reliance on Section 4(2) of that
Act.
Where
to Find Additional Information
The
issuer is a foreign private issuer. As such, the proxy statement and
other proxy materials with respect to the acquisition was not subject to
preliminary review and comment by the Securities and Exchange Commission (the
“SEC”). The proxy statement with respect to the proposed acquisition contains
risk factor disclosures alerting its shareholders to the fact that its proxy
materials have not been reviewed by the SEC and may not have all of the material
disclosures required to be included under the SEC’s rules. In
addition, the issuer has filed various Current Reports on Form 6-K with the SEC
containing important disclosures regarding the acquisition and the business of
the issuer.
Copies of
the proxy statement, the Current Reports on Form 6-K and other documents filed
by Hambrecht are available at the website maintained by the SEC at www.sec.gov.
Copies of such filings can also be obtained, without charge, by directing a
request to Hambrecht Asia Acquisition Corp., c/o Guanke (Fujian) Technological
Industry Co. Ltd., SGOCO Technology Park, Luoshan, Jinjiang City, Fujian, China
362200, Attn. Jessie Hsia, telephone +86-595-8200-5598.
Exhibits
|
Exhibit
No
|
|
Description
|
|
|
|
|
|
4.1
|
|
Amendment
No. 1 to Warrant Agreement, dated as of March 12, 2010, between Hambrecht
Asia Acquisition Corp. and Continental Stock Transfer & Trust Company,
as warrant agent
|
|
10.1
|
|
Escrow
Agreement, dated March 12, 2010, by and among Sun Zone Investments
Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC, Hambrecht
1980 Revocable Trust, AEX Enterprises Limited, John Wang, Marbella Capital
Partners LLC., Cannon Family Irrevocable Trust and Shea Ventures LLC., and
Grand Pacific Investment Limited, as escrow agent*
|
|
10.2
|
|
Sponsors
Agreement, dated as of February 12, 2010, among Sun Zone Investments
Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC, Hambrecht
1980 Revocable Trust, AEX Enterprises Limited, John Wang, Marbella Capital
Partners LLC., Cannon Family Irrevocable Trust and Shea Ventures LLC., and
Hambrecht Asia Acquisition Corp.*
|
|
10.3
|
|
Amendment
No. 1 to Sponsors Agreement, dated as of February 12, 2010, among Sun Zone
Investments Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC,
Hambrecht 1980 Revocable Trust, AEX Enterprises Limited, John Wang,
Marbella Capital Partners LLC., Cannon Family Irrevocable Trust and Shea
Ventures LLC*
|
|
10.4
|
|
Registration
Rights Agreement, dated March 12, 2010, between Hambrecht Asia Acquisition
Corp. and Sun Zone Investments Limited and Sze Kit
Ting
|
*
Certain
exhibits or schedules to these agreements have been omitted and will be
furnished supplementally to the Securities and Exchange Commission on
request.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
|
|
|
|
Dated: March
15, 2010
|
HAMBRECHT
ASIA ACQUISITION CORP.
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Burnette
Or
|
|
|
|
|
Name:
Burnette Or
|
|
|
|
|
Title:
President
|
|
|
|
|
|
|
Exhibit
Index
|
Exhibit
No
|
|
Description
|
|
|
|
|
|
4.1
|
|
Amendment
No. 1 to Warrant Agreement, dated as of March 12, 2010, between Hambrecht
Asia Acquisition Corp. and Continental Stock Transfer & Trust Company,
as warrant agent
|
|
10.1
|
|
Escrow
Agreement, dated March 12, 2010, by and among Sun Zone Investments
Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC, Hambrecht
1980 Revocable Trust, AEX Enterprises Limited, John Wang, Marbella Capital
Partners LLC., Cannon Family Irrevocable Trust and Shea Ventures LLC., and
Grand Pacific Investment Limited, as escrow agent*
|
|
10.2
|
|
Sponsors
Agreement, dated as of February 12, 2010, among Sun Zone Investments
Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC, Hambrecht
1980 Revocable Trust, AEX Enterprises Limited, John Wang, Marbella Capital
Partners LLC., Cannon Family Irrevocable Trust and Shea Ventures LLC., and
Hambrecht Asia Acquisition Corp.*
|
|
10.3
|
|
Amendment
No. 1 to Sponsors Agreement, dated as of February 12, 2010, among Sun Zone
Investments Limited, Sze Kit Ting, Robert Eu, W.R. Hambrecht + Co., LLC,
Hambrecht 1980 Revocable Trust, AEX Enterprises Limited, John Wang,
Marbella Capital Partners LLC., Cannon Family Irrevocable Trust and Shea
Ventures LLC*
|
|
10.4
|
|
Registration
Rights Agreement, dated March 12, 2010, between Hambrecht Asia Acquisition
Corp. and Sun Zone Investments Limited and Sze Kit
Ting
|
*
Certain
exhibits or schedules to these agreements have been omitted and will be
furnished supplementally to the Securities and Exchange Commission on
request.
Each of the Exhibits is filed herewith.
AMENDMENT
NO.1 TO THE WARRANT AGREEMENT
This
Amendment No.1, dated as of March 12, 2010 (this "Amendment"), to the Warrant
Agreement, dated as of March 7, 2008 (the "Warrant Agreement"), is entered into
by and between Hambrecht Asia Acquisition Corp., a corporation organized under
the laws of the Cayman Islands (the "Company"), with offices at 13/F Tower 2,
New World Tower, 18 Queens Road Central, Hong Kong, and Continental Stock
Transfer & Trust Company, a New York corporation ("Warrant Agent"), with
offices at 17 Battery Place, New York, New York, 10004.
WHEREAS,
the Company consummated its initial public offering in March 2008, pursuant to
which the Company issued, after giving effect to the exercise of a portion of
the overallotment option, 4,239,300 units;
WHEREAS,
each unit consisted of one share of ordinary share, par value $0.001 per share,
of the Company (the "Ordinary Share") and one warrant to purchase one Ordinary
Share at an exercise price of $5.00 per share (the "Public
Warrants");
WHEREAS,
in conjunction with its initial public offering, the Company privately placed
1,150,000 warrants (the "Insider Warrants"), to certain investors named in the
Registration Statement, with each Insider Warrant exercisable into one Ordinary
Share at $5.00; and
WHEREAS,
the Company also issued an option to Broadband Capital Management, Inc.
(“Broadband”) to purchase 280,000 units each consisting of one Ordinary Share
and one warrant to purchase One Ordinary Share at $5.00 per share (the
“Representative Warrants”, and together with the Public Warrants and the Insider
Warrants, the “Warrants”);
WHEREAS,
the terms of the Warrants are governed by the Warrant Agreement and capitalized
terms used, but not defined, herein shall have the meaning given to such terms
in the Warrant Agreement;
WHEREAS,
the Company has entered into that certain Share Exchange Agreement ,dated
February 11, 2010 (the "Share Exchange Agreement"), by and among the
Company, Honesty Group Holdings Limited, a company organized under the laws of
Hong Kong (“Honesty Group”), and each of the shareholders signatories thereto,
pursuant to which the shareholders of Honesty Group will contribute all of the
outstanding capital stock of Honesty Group to the Company in exchange for
11,000,000 newly issued Ordinary Shares of the Company, subject to upward
adjustment as described in the Share Exchange Agreement (the
“Acquisition”);
WHEREAS,
pursuant to the Share Exchange Agreement, the Company agreed to seek the
approval of the holders of its outstanding Warrants to amend the Warrant
Agreement to provide that : (i) the exercise price for each Ordinary Share for
which the Warrant is exercised is increased from $5.00 to $8.00; (ii) the term
of each warrant is extended by one year to expire on the earlier of March 7,
2014 or the redemption of the Warrant in accordance with the Warrant Agreement;
and (iii) the holders of Public Warrants shall have the right to demand
redemption of their public Warrant by the Company at $0.50 per share upon the
consummation of the Acquisition (collectively, the "Warrant Redemption
Proposal");
WHEREAS,
pursuant to Section 9.8 of the Warrant Agreement, the Warrant Agreement may be
amended upon written consent of Broadband and registered holders of a majority
of the outstanding Warrants;
WHEREAS,
a majority of the outstanding Public Warrants and Insider Warrants has approved
the Warrant Redemption Proposal and given their written consent at to this
Amendment, and Broadband has given its written consent to this Amendment;
and
WHEREAS,
the conditions precedent to the consummation of the transactions contemplated by
the Share Exchange Agreement other than this Amendment have been or
simultaneously herewith are satisfied and the Closing of the
Acquisition will constitute a Business Combination within the meaning of Section
3.2 of the Warrant Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
to amend the Warrant Agreement as set forth herein:
1.
Amendment of Warrant
Agreement
.
(a) The first sentence of Section 3.1
of the Warrant Agreement is hereby amended to read in its entirety as
follows:
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of Ordinary Shares, at the
price of $8.00 per Ordinary Share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1.
(b) The
first sentence of Section 3.2 of the Warrant Agreement is hereby amended to read
in its entirety as follows:
A Warrant
may be exercised only during the period (“Exercise Period”) commencing on the
later of the consummation by the Company of a stock exchange, asset acquisition
or other similar business combination (“Business Combination”) (as described
more fully in the Company’s Registration Statement) or March 7, 2009, and
terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
March 7, 2014 or (ii) the date fixed for redemption of the Warrants as provided
in Section 6 of this Agreement (“Expiration Date”).
(c) A new
Section 6A is hereby added to the Warrant Agreement:
6A.
Special Redemption in Connection with a Business Combination
6A.1 Redemption of Public
Warrants. Subject to the consummation of the Business Combination as
provided in Section 6A.2 hereof, any Public Warrants may be redeemed, at the
option of the holder thereof, at the office of the Warrant Agent at a price of
$0.50 per Warrant, by notice given to the Company at any time prior to the
special meeting of Warrantholders to be held on March 8, 2010, and any
adjournment thereof (the “Special Meeting”), provided, however, that if any
holder of Public Warrants fails to attend, in person or by proxy, the Special
Meeting, or fails to give written notice prior to the Special Meeting of such
holder’s intention to continue to hold Public Warrants on the terms of the
Warrant Agreement, as amended from time to time, such holder shall be deemed to
have demanded redemption of all the Public Warrants held by such holder on the
terms of this Section 6A. The Company may, at its sole election and without
notice to any holder, extend the period of time for an holder to elect to redeem
a Public Warrant pursuant to this Section 6A.
6A.2
Conditions to Redemption. The obligation of the Company to redeem any
Public Warrant as provided in Section 6A.1 above is conditioned upon the Company
consummating a Business Combination by March 12, 2010, or such later date as
maybe provided in the Company’s Amended and Restated Articles of Incorporation,
and receipt from the holder of the certificate representing the Public Warrant
and a properly completed letter of transmittal within twenty (20) business days
after consummation of the Business Combination.
2.
Form of
Warrant
. After the effective date of this Amendment, the terms
of each Public Warrant shall be amended without further action on the part of
any holder and notwithstanding the terms of any certificate representing such
Warrant, each Warrant shall have the terms set forth in the Warrant Agreement as
amended by this Amendment.
3.
Miscellaneous
.
(a)
Governing Law. The validity, interpretation, and performance of this
Amendment and of the Public Warrants shall be governed in all respects by the
laws of the State of New York, without giving effect to conflicts of law
principles. The parties agree that all actions and proceedings arising out of
this Amendment or any of the transactions contemplated hereby shall be brought
in the United States District Court for the Southern District of New York or in
a New York State Court in the County of New York and that, in connection with
any such action or proceeding, submit to the jurisdiction of, and venue in, such
court. Each of the parties hereto also irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of this Amendment or
the transactions contemplated hereby.
(b)
Binding Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns.
(c)
Entire Agreement. This Amendment sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and merges
and supersedes all prior discussions, agreements and understandings of any and
every nature among them. Except as set forth in this Amendment, provisions of
the Warrant Agreement which are not inconsistent with this Amendment shall
remain in full force and effect.
(d)
Severability. This Amendment shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Amendment 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 part of this Amendment a provision as similar in terms to such invalid
or unenforceable provision as may be possible and be valid and
enforceable.
(e)
Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall constitute but one and the same
instrument.
(f)
Indemnification. The
Company agrees to indemnify and save harmless the Warrant Agent from and against
all claims, liabilities, losses, damages, charges, expenses, actions or causes
of action that may be incurred by or brought against the Warrant Agent related
to the execution of this Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned have executed this First Amendment to the
Warrant Agreement as of the date first set forth below.
|
|
HAMBRECHT
ASIA ACQUISITION CORP.
|
|
|
|
|
|
|
|
By:
|
/s/ Hao Wu
|
|
|
|
|
Name:
|
Hao
Wu
|
|
|
|
|
Title:
|
CFO
|
|
|
|
|
|
|
|
|
|
Date:
2010.3.12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Steven Nelson
|
|
|
|
|
Name:
|
Steven
Nelson
|
|
|
|
|
Title
|
President
|
|
|
|
|
|
|
|
|
|
Date:
3/12/10
|
|
Acknowledged
and Agreed:
BROADBAND
CAPITAL MANAGEMENT, INC.
|
By:
|
/s/ Mike Rapp
|
|
|
|
Name:
|
Mike
Rapp
|
|
|
|
Title:
|
Chairman
|
|
Date:
3/12/10
Signature
Page to the Amendment
ESCROW
AGREEMENT
This
Escrow Agreement (this “
Agreement
”) is dated
as of March 12, 2010, and is by and among Sun Zone Investments Limited, a
company organized under the laws of the British Virgin Islands (“
Sun Zone
”), and Sze
Kit Ting (collectively with Sun Zone, “
Sellers
”), SGOCO
Technology Ltd. (f/k/a Hambrecht Asia Acquisition Corp.), a company organized
under the laws of the Cayman Islands (the “
Company
”), and
certain holders of securities of the Company, who execute a counterpart
signature page hereto (each a “
Sponsor
” and
collectively “
Sponsors
”), and Grand
Pacific Investment Limited as escrow agent (the “
Escrow
Agent
”). The Company, Sellers, Sponsors and Escrow Agent are
referred to collectively herein as the “
Parties
”). Capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in the Exchange Agreement (as defined below).
RECITALS
WHEREAS
, the Company has
entered into that certain Share Exchange Agreement (the “
Exchange Agreement
”),
dated as of February 12, 2010, as amended, by and among the Company, Honesty
Group Holdings Limited (“
Honesty Group
”), and
Sellers, who collectively own all of the outstanding shares of Honesty Group
(the “
Honesty Group
Shares
”), pursuant to which Sellers will exchange all of the Honesty
Group Shares for up to 14,300,000 ordinary shares of the Company (the “
HMAUF Shares
”);
and
WHEREAS
, pursuant to the
Exchange Agreement, Sellers will be entitled to receive 5,800,000 of the HMAUF
Shares (the “
Seller
Earn-Out Shares
”) only if certain operating results described in the
Exchange Agreement (“
Earn-Out Milestones
”)
are met and, until such conditions are met, the Company and Sellers have agreed
that the Seller Earn-Out Shares will be held in escrow in accordance with the
terms of this Agreement; and
WHEREAS
, in connection with
entering into the Exchange Agreement, and as a condition to the execution by
Sellers of the Exchange Agreement, Sponsors have entered into that certain
Sponsor Agreement with Sellers, dated as of February 12, 2010, as amended by
Amendment No. 1 to Sponsor Agreement, dated March 11, 2010 (as so amended, the
“
Sponsor
Agreement
”), pursuant to which each Sponsor agreed to deposit in escrow
certain HMAUF Shares owned by such Sponsor subject to the Company meeting the
Earn-Out Milestones (the “
Sponsor Earn-Out
Shares
”), and each Sponsor agreed to deposit in escrow certain HMAUF
Shares owned by such Sponsor subject to fulfillment of certain conditions (the
“Conditions”) set forth in the Sponsor Agreement, each as set forth opposite
such Sponsor’s name on
Exhibit A
hereto to
be held in escrow in accordance with the terms of this Agreement (the
“
Sponsor Conditional
Shares
” and the Seller Earn-Out Escrow Shares, the Sponsor Earn-Out
Escrow Shares and the Sponsor Conditional Shares, collectively, the “
Escrow Shares
”);
and
WHEREAS
, the Company, Sponsors
and Sellers desire that the Escrow Agent accept the Escrow Shares, in escrow, to
be held and disbursed as hereinafter provided; and
WHEREAS,
certain of the
Sponsors, consisting of John Wang, Robert J. Eu, Cannon Family Irrevocable
Trust, AEX Enterprises Limited, W.R. Hambrecht + Co., LLC, Hambrecht 1980
Revocable Trust, Shea Ventures LLC, and Marbella Capital Partners Ltd (the
“
Initial
Sponsors
”) have entered into a Securities Escrow Agreement (the “
IPO Escrow
Agreement
”), dated as of March 7, 2008, with Continental Stock Transfer
& Trust Company, as escrow agent (the “
IPO Escrow Agent
”),
pursuant to which the Initial Sponsors have deposited in escrow their HMAUF
Shares to be held for a period of one year following the Closing of the
transactions contemplated by the Exchange Agreement or another Business
Combination as described in the IPO Escrow Agreement.
AGREEMENT
NOW, THEREFORE
, in
consideration of the premises and the mutual covenants hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which hereby is acknowledged, the Parties hereto agree as follows:
1.
Appointment
of Escrow Agent
.
The Company,
Sponsors and Sellers hereby appoint the Escrow Agent to act in accordance with
and subject to the terms of this Agreement, and the Escrow Agent hereby accepts
such appointment and agrees to act in accordance with and subject to such
terms.
2.
Deposit
of Escrow Shares
.
(a)
At the Closing, the
Company shall deliver to the Escrow Agent certificates representing the Seller
Escrow Shares issued in the names of Sellers and in the denominations set forth
on
Exhibit
B
.
(b)
At the Closing, each
Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent shall deliver to
the Escrow Agent certificate(s) representing such his or its Sponsor Earn-Out
Shares and Sponsor Conditional Shares. At the Closing, each Sponsor
whose HMAUF Shares are held by the IPO Escrow Agent shall deliver irrevocable
instructions to the IPO Escrow Agent to deliver to the Escrow Agent his or its
Sponsor Earn-Out Shares and Sponsor Conditional Shares at the time such Shares
would otherwise be delivered to such Sponsor under the IPO Escrow Agreement (the
“
Release
Date
”).
(c)
At the Closing, each
Seller and each Sponsor shall deliver to the Escrow Agent all stock powers,
assignments and related documents as may be necessary to effect the transfer to
the Company and cancellation of such Seller’s Seller Escrow Shares or such
Sponsor Earn-Out Shares and Sponsor Conditional Shares.
3.
Escrow
Period
.
The term of this
Agreement (the “
Escrow
Period
”) is from the Closing Date to the date on which the Escrow Agent
disburses all of the Escrow Shares according to the terms and conditions
herein.
4.
Disbursement
of the Earn-Out Shares
.
(a)
Within ten (10) Business
Days (as hereinafter defined) after each of the First Earn-Out Milestone Date
and the Second Earn-Out Milestone Date, the Company shall give notice to the
other Parties to this Agreement specifying whether the applicable Earn-Out
Milestone has been met (a “
Satisfaction
Notice
”); provided, however, that no notice pursuant to this Section 4
shall be required to be given to, or permitted to be given by, Sponsors with
respect to the Second Earn-Out Milestone Date if the First Earn-Out Milestone
has been met for purposes of this Agreement. In the event the Company
fails to timely deliver a Satisfaction Notice, any Seller or Sponsor may give
notice that the Applicable Earn-Out Milestone has been met (an “
Earn-Out Notice
”) to
each of the other parties to this Agreement. For purposed of this Agreement, the
term “Business Days” shall mean Monday through Friday of each week other than
any days when banks generally and federal or central government offices in New
York, U.S.A., China or Hong Kong are authorized or required to be
closed.
(b)
The Satisfaction Notice
shall include a calculation of the Income from Existing Operations for the year
ended December 31, 2010 (in the case of the Satisfaction Notice given after the
First Earn-Out Milestone Date) or the year ended December 31, 2011 (in the case
of the Satisfaction Notice given after the Second Earn-Out Milestone
Date).
(c)
Within fifteen (15)
Business Days after the giving of any Satisfaction Notice or Earn-Out Notice,
any Seller or Sponsor or, in the case of an Earn-Out Notice, the Company, may
dispute the determination set forth in the Satisfaction Notice or Earn-Out
Notice (the “
Dispute
Period
”), by written notice to the other parties (the “
Dispute
Notice
”). If no Dispute Notice is given during the Dispute
Period: (i) any determination in the Satisfaction Notice that an Earn-Out
Milestone has not been met, and (ii) any determination in a Satisfaction Notice
or an Earn-Out Notice that the applicable Earn-Out Milestone has been met, shall
be final for all purposes under this Agreement.
(d)
If any party timely gives
a Dispute Notice, the Company shall make available to the Sellers, the Sponsors
and their respective advisors all books and records or copies thereof used by
the Company or that are reasonably necessary to determine whether the First
Earn-Out Milestone or the Second Earn-Out Milestone, as applicable, has been met
(the “
Applicable
Records
”). The Applicable Records will be made available upon
written request, at the offices of the Company where they are customarily
maintained, during normal business hours. Review of the Applicable
Records shall be conducted in a manner which is not unreasonably disruptive of
the business operations of the Company and its subsidiaries. The
provisions of Section 9.2 [Confidentiality] of the Exchange Agreement shall
apply to the Sellers and the Sponsors and the respective advisors with respect
to the information in the Applicable Records to the same extent as if such
Section were included herein.
(e)
If any of the Company, a
Seller or a Sponsor timely gives a Dispute Notice (in each case, creating an
“
Earn-Out
Dispute
”), the Company, the Sellers and the Sponsors shall use reasonable
business efforts to resolve the dispute within a period of 30 days following the
Dispute Notice. If the Earn-Out Dispute has been resolved, a joint
notice of the resolution by the Company and any Sellers or Sponsors who have
timely delivered a Dispute Notice shall be given to all of the parties to this
Agreement. If no resolution has been reached in such 30-day period,
then the Company or any Seller or Sponsor may submit the Earn-Out Dispute (a
“
Dispute
Submission
”) to a firm of independent accountants located in China with
expertise in U.S generally accepted accounting principles applicable to public
companies (the “
Accountants
”) and
shall provide a copy of the Dispute Submission to the Company (if the Dispute
Submission is made by a Seller or Sponsor), the Sellers and the Sponsors;
provided, a Dispute Submission with respect to the Second Earn-Out Milestone may
not be made by a Sponsor if the First Earn-Out Milestone has been met for
purposes of this Agreement and a copy of any Dispute Submission with respect to
the Second Earn-Out Milestone need not be given to the Sponsors if the First
Earn-Out Milestone has been met for purposes of this Agreement. The
Company shall, following reasonable notice and during regular business hours,
make available to the Accountants all Applicable Records. The
Accountants’ sole review shall be to calculate the Income from Existing
Operations in accordance with U.S. GAAP, consistently applied, and to confirm
that, based on reasonable testing conducted consistently with U.S. generally
accepted auditing standards, the Applicable Records used to calculate the Income
from Existing Operations have been maintained in accordance with U.S. GAAP,
consistently applied. The Accountants shall give notice specifying
the amount of Income from Existing Operations as calculated by the Accountants
(the “
Accountants’
Determination
”) to each of the Parties. The Accountants’
Determination shall be final and binding upon the Parties for all purposes of
this Agreement. If the Earn-Out Dispute relates to the First Earn-Out
Milestone and the Accountants’ Determination is that the Income from Existing
Operations for the year ended December 31, 2010 is greater than US $15,000,000,
then the First Earn-Out Milestone shall be deemed to have been met; otherwise,
the First Earn-Out Milestone shall be deemed not to have been met. If
the Earn-Out Dispute relates to the Second Earn-Out Milestone and the
Accountants’ Determination is that the Income from Existing Operations for the
year ended December 31, 2011 is greater than US $20,000,000, then the Second
Earn-Out Milestone shall be deemed to have been met; otherwise, the Second
Earn-Out Milestone shall be deemed not to have been met.
(f)
For purposes of this
Agreement, the “
Determination Date
”
shall be:
(i)
If the Company gives a
Satisfaction Notice and no Seller or Sponsor gives an Earn-Out Notice during the
Dispute Period, the last day of the Dispute Period;
(ii)
If (x) the Company does
not timely give a Satisfaction Notice, (y) a Seller or Sponsor gives an Earn-Out
Notice, and (z) the Company does not give a Dispute Notice during the Dispute
Period, the last day of the Dispute Period; or
(iii)
If there is an Earn-Out
Dispute, the date on which the Accountants give notice of the Accountants’
Determination.
(g)
Within ten (10) Business
Days after the applicable Determination Date, the Escrow Agent shall disburse
the Seller and Sponsor Earn-Out Shares held in escrow as follows:
(i)
In the event that the
First Earn-Out Milestone is met, the Escrow Agent shall (x) deliver 5,000,000 of
the Seller Earn-Out Shares to Sellers in the amounts set forth on
Exhibit B
attached
hereto; and (y) if a Notice of Conditions (as defined below) has been issued and
such Notice confirms the Conditions have been met on or prior to the
Determination Date, deliver to each Sponsor the appropriate Sponsor Earn-Out
Shares.
(ii)
In the event that the
First Earn-Out Milestone is not met, no Escrow Shares shall be disbursed as a
result of the occurrence of a Determination Date with respect to the First
Earn-Out Milestone.
(iii)
In the event the Second
Earn-Out Milestone is met: (x)(1) if the First Earn-Out Milestone was met, the
Escrow Agent shall deliver the remaining 800,000 Seller Earn-Out Shares to
Sellers in the amounts set forth on
Exhibit B
attached
hereto, or (2) if the First Earn-Out Milestone was not met, the Escrow Agent
shall deliver all 5,800,000 Seller Earn-Out Shares to Sellers in the amounts set
forth on
Exhibit
B
attached hereto; and (y) if the Sponsors’ Earn-Out Shares were not
delivered pursuant to Section 4(g)(i)(y) above and if a Notice of Conditions (as
defined below) has been issued and confirms the Conditions have been met on or
prior to the Determination Date, deliver to each Sponsor the appropriate Sponsor
Earn-Out Shares.
(iv)
In the event that the
Second Earn-Out Milestone is not met but the First Earn-Out Milestone was met,
the Escrow Agent shall: (x) deliver the remaining 800,000 Seller Earn-Out Shares
to the Company, and (y) if the Sponsors’ Earn-Out Shares were not delivered
pursuant to Section 4(g)(i)(y) above and if a Notice of Conditions has been
issued and confirms the Conditions have been met on or prior to the
Determination Date, deliver to each Sponsor the appropriate Sponsor Earn-Out
Shares, if any, remaining in escrow. All Escrowed Shares returned to
the Company will be returned to the status of authorized but unissued
shares as of the Second Earn-Out Milestone Date.
(v)
If neither Earn-Out
Milestone is met and the Determination Date has occurred with respect to both
the First Earn-Out Milestone and the Second Earn-Out Milestone, the Escrow Agent
shall (i) deliver all 5,800,000 Seller Earn-Out Shares to the Company and such
shares will be returned to the status of authorized but unissued shares as of
the Second Earn-Out Milestone Date; and (ii) deliver all Sponsor Earn-Out Shares
to the Company and such shares will be returned to the status of authorized but
unissued shares as of the Second Earn-Out Milestone Date.
(vi)
If, as of any
Determination Date, a Notice of Conditions has been issued which states that the
Conditions have not been met, or if no Notice of Conditions has been given, no
Sponsor Earn-Out Shares shall be delivered to Sponsor and such Sponsor Earn-Out
Shares shall remain in escrow until disbursed as provided in Section 5
below.
(h)
The Escrow Agent shall
deliver to the Company all stock powers, assignments and related documents as
may be necessary to effect the transfer to the Company and cancellation of any
Escrow Shares delivered to the Company pursuant to Section 4(g). All
other stock powers, assignments and related documents shall be returned to the
Seller or Sponsor who delivered such documents to the Escrow Agent promptly
after all of the Escrow Shares have been disbursed by the Escrow
Agent.
5.
Disbursement
of the Sponsor Conditional Shares
.
(a)
Within ten (10) Business
Days after the earlier of satisfaction of the Conditions or December 31, 2011,
the Company shall give notice to the other Parties to this Agreement specifying
whether the Conditions to release of the Sponsor Conditional Shares have been
met (a “
Notice of
Conditions
”).
(b)
If the Notice of
Conditions states that the Conditions to the rights of the Sponsors to the
return of the Sponsor Conditional Shares have been met, within ten (10) Business
Days after the Notice of Conditions is delivered, the Escrow Agent shall
disburse the Sponsor Conditional Shares held in escrow to the appropriate
Sponsors together with the Sponsor Earn-Out Shares, if the First Earn-Out
Milestone has been met.
(c)
If the Notice of
Conditions states that the Conditions to the rights of the Sponsors to the
return of the Sponsor Conditional Shares have not been met, the Notice of
Conditions shall specify which of the Conditions have not been
met. The Sponsors shall have ten (10) Business Days after the Notice
of Conditions is delivered to dispute the Notice of Conditions by written notice
(the “
Conditions
Dispute Notice
”) to the Escrow Agent and the Company, setting forth with
particularity the facts demonstrating satisfaction of the
Conditions. If no Conditions Dispute Notice is received by the Escrow
Agent within such ten (10) Business Days, the Escrow Agent shall deliver all of
the Sponsor Conditional Shares and Sponsor Earn-Out Shares to the Company and
such shares will be returned to the status of authorized but unissued shares as
of the date of the Notice of Conditions.
(d)
Any disputes set forth in
a timely Conditions Dispute Notice shall be resolved in the manner provided in
the Sponsor Agreement. Upon receipt by the Escrow Agent of joint
written instructions from the Company and each of the Sponsors or a final
arbitral award under the Sponsor Agreement, the Escrow Agent shall deliver the
Sponsor Conditional Shares as set forth in the joint instructions or arbitral
award.
6.
Rights of Sponsors and
Sellers in Escrow Shares
.
(a) Adjustment of Escrow
Shares
.
The
number of HMAUF Shares deliverable upon meeting any Earn-Out Milestone or
Conditions will be proportionately increased or decreased, or subject to such
other adjustment, in the event of any stock dividend, stock split, or other
recapitalization of the Company as may be necessary or appropriate so that the
capital stock of the Company delivered to Sponsors and Sellers with respect to
any Earn-Out Milestone or satisfaction of Conditions provides Sponsors and
Sellers with the same economic and other benefits of ownership as they would
have received if the number of HMAUF Shares delivered with respect to such
Earn-Out Milestone or satisfaction of Conditions had been delivered to them at
Closing.
(b) Distributions in Respect of the
Escrow Shares
. Any capital stock of the Company or other
consideration payable with respect to the HMAUF Shares held by the Escrow Agent
in connection with any stock dividend, stock split, or other recapitalization of
Company shall be issued or paid by the Company to the Escrow Agent at the same
time that capital stock of the Company or other consideration is issued or paid
to other shareholders of the Company in connection with such stock dividend,
stock split, or other recapitalization of the Company.
(c) Voting Rights as a
Shareholder
. Except as herein provided, Sponsors and Sellers shall retain
all of their rights as shareholders of HMAUF during the Escrow Period with
respect to the Escrow Shares, including, without limitation, the right to vote
such shares.
(d) Restrictions on Transfer
.
During the Escrow Period, no sale, transfer or other disposition may be made of
any or all of the Escrow Shares except (i) by gift to an affiliate or a member
of the Sponsor or Seller’s immediate family or to a trust or other entity, the
beneficiary of which is such Sponsor or Seller or a member of such Sponsor or
Seller’s immediate family, (ii) by virtue of the laws of descent and
distribution upon death of any Sponsor or Seller, or (iii) pursuant to a
qualified domestic relations order; provided, however, that such permissive
transfers may be implemented only upon the respective transferee’s written
agreement to be bound by the terms and conditions of this Agreement and the
Sponsor Agreement, as amended. During the Escrow Period, Sponsors and
Sellers shall not pledge or grant a security interest in the Escrow Shares or
grant a security interest in their rights under this Agreement.
6.
Concerning the Escrow
Agent
.
(a) Good Faith Reliance
.
The Escrow Agent shall
not be liable for any action taken or omitted by it in good faith and in the
exercise of its own best judgment, and may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Escrow Agent), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and acceptability of any information therein contained) which is believed by the
Escrow Agent to be genuine and to be signed or presented by the proper person or
persons. The Escrow Agent shall not be bound by any notice or demand,
or any waiver, modification, termination or rescission of this Agreement unless
evidenced by a written document delivered to the Escrow Agent signed by the
proper Party or Parties and, if the duties or rights of the Escrow Agent are
affected, unless it shall have given its prior written consent
thereto.
(b)
Indemnification
. The Escrow Agent shall be indemnified and
held harmless by the Company from and against any expenses, including counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with
any action, suit or other proceeding involving any claim which in any way,
directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other
than expenses or losses arising from the gross negligence or willful misconduct
of the Escrow Agent. Promptly after the receipt by the Escrow Agent
of notice of any demand or claim or the commencement of any action, suit or
proceeding, the Escrow Agent shall notify the other Parties hereto in
writing. In the event of the receipt of such notice, the Escrow
Agent, in its sole discretion, may commence an action in the nature of
interpleader in an appropriate court to determine ownership or disposition of
the Escrow Shares or it may deposit the Escrow Shares with the clerk of any
appropriate court or it may retain the Escrow Shares pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the Parties
hereto directing to whom and under what circumstances the Escrow Shares are to
be disbursed and delivered. The provisions of this Section 6(b) shall
survive in the event the Escrow Agent resigns or is discharged pursuant to this
Agreement.
(c)
Compensation.
The Escrow Agent shall be entitled to reasonable
compensation from the Company for all services rendered by it hereunder, as set
forth on
Exhibit
C
hereto. The Escrow Agent shall also be entitled to reimbursement from
the Company for all expenses paid or incurred by it in the administration of its
duties hereunder including, but not limited to, all counsel, advisors’ and
agents’ fees and disbursements and all taxes or other governmental
charges.
(d) Further
Assurances.
From time to time on and after the date hereof,
the Company, Sponsors and Sellers shall deliver or cause to be delivered to the
Escrow Agent such further documents and instruments and shall do or cause to be
done such further acts as the Escrow Agent shall reasonably request to carry out
more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
(e)
Resignation.
The Escrow Agent may resign at any time and be
discharged from its duties as escrow agent hereunder by its giving the other
Parties hereto written notice and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such
time that the Escrow Agent shall turn over to a successor escrow agent,
appointed by the Company and approved by Sponsors and Sellers, the Escrow Shares
held hereunder. If no new escrow agent is so appointed within the 60
day period following the giving of such notice of resignation, the Escrow Agent
may deposit the Escrow Shares with any court it reasonably deems
appropriate.
(f) Discharge of Escrow
Agent.
The Escrow Agent shall resign and be discharged from
its duties as escrow agent hereunder if so requested in writing at any time by
all the other Parties hereto, jointly, provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor escrow
agent as provided in Section 6(e).
(g)
Liability.
Notwithstanding anything herein to the contrary,
the Escrow Agent shall not be relieved from liability hereunder for its own
gross negligence or its own willful misconduct.
7.
Miscellaneous
.
(a) Governing
Law.
This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the State of
New York. Except as otherwise expressly provided in the Sponsor
Agreement or Section 4 hereof, 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.
(b) Successors and
Assigns
. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns;
provided
that the
Escrow Agent may only assign any of its rights or delegation of any of its
obligations hereunder in accordance with Section 6(e) hereof.
(c) Notices.
Any
notice or other communication required or which may be given hereunder shall be
in writing and either be delivered personally or by private national courier
service, or be mailed, certified or registered mail, return receipt requested,
postage prepaid, and shall be deemed given when so delivered personally or, if
sent by private international courier service, four Business Days after delivery
to the courier, or, if mailed, ten Business Days after the date of mailing, as
follows:
If to the
Company, to:
SGOCO
Technology Ltd.
SGOCO
Technology Park
Loushan,
Jinjiang City
Fujian,
China 32200
Attn: Burnette
Or, President
If to a
Sponsor or a Seller, to its address set forth
on the
applicable signature page hereto, and
If to the
Escrow Agent, to:
Grand
Pacific Investment Limited
50th
Floor, Bank of China Tower
1 Garden
Road, Central, Hong Kong
Attn:
Cheng Hoo, Executive Director
A copy of
any notice sent hereunder shall be sent to:
Nixon
Peabody LLP
One
Embarcadero Center
Suite
1800
San
Francisco, California 94111
Attn:
David Cheng, Esq.
and
Loeb
& Loeb LLP
345 Park
Avenue
New York,
New York 10154
Attn:
Giovanni Caruso, Esq.
The
Parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in the
manner provided herein for giving notice.
(d)
Counterparts.
This Agreement may be executed in several
counterparts each one of which shall constitute an original and may be delivered
by facsimile transmission and together shall constitute one
instrument.
(e)
Amendments.
This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by written instrument signed by each of the Parties (or any
successor thereto), or, in the case of a waiver, by the Party or Parties waiving
compliance. No delay on the part of any Party hereof in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any Party of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise hereof or the exercise of any
other rights, power or privilege hereunder.
(f) Entire
Agreement.
This Agreement, the Exchange Agreement and the
Sponsor Agreement contain the entire agreement among the Parties with respect to
the subject matter hereof and supersede all prior agreements, written or oral,
with respect hereof.
(g) Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and
year first above written.
|
HAMBRECHT
ASIA ACQUISITION CORP.
(to
be known as SGOCO TECHNOLOGY LTD.)
|
|
|
|
|
|
By:
|
/s/
John Wang
|
|
|
Name:
John
Wang
|
|
|
Title:
CEO
|
|
|
|
|
|
|
SUN
ZONE INVESTMENTS LIMITED
|
|
|
|
|
|
By:
|
/s/
Or Tin
Man
|
|
|
Name:
Tin Man Or
|
|
|
Title:
Owner
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
/s/Ting
Sze Kit
|
|
|
SZE
KIT TING
|
|
|
|
|
|
|
Address:
|
|
Signature
Page to Escrow Agreement
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and
year first above written.
|
For
individual Sponsors:
|
|
|
For
Sponsors other than individuals:
|
|
|
|
|
|
|
|
|
/s/
John Wang
|
|
|
Cannon
Family Irrevocable Trust
|
|
|
John
Wang
|
|
|
|
|
|
|
|
|
By:
|
/s/
Stephen N. Cannon
|
|
|
|
|
|
Name:
Stephen
N. Cannon
|
|
|
/s/
Robert Eu
|
|
|
Title:
Trustee
|
|
|
Robert
Eu
|
|
|
|
|
|
|
|
|
AEX
Enterprises Limited
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Robert Eu
|
|
|
|
|
|
|
|
|
|
|
|
|
W.E.
Hambrecht + Co.,LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
W.R. Hambrecht
|
|
|
|
|
|
|
|
|
|
|
|
|
Hambrecht
1980 revocable trust
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
W.R. Hambrecht
|
|
|
|
|
|
|
|
|
|
|
|
|
Shea
Ventures LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Ronald Lakey
|
|
|
|
|
|
Roanld
Lakey, Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
Marella
Capital Partners, Ltd.
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
John
Wang
|
|
|
|
|
|
John Wang
|
|
|
Address(for
all Sponsors):
Address:
13/F Tower 2
New
World tower
18
Queens Road Central
Hong
Kong
|
|
SPONSOR
AGREEMENT
THIS SPONSOR AGREEMENT
(the
“
Agreement
”) is
made as of February 12, 2010, by and among Sun Zone Investments Limited, a
company organized under the laws of the British Virgin Islands (“
Sun Zone
”), and Sze
Kit Ting (collectively with Sun Zone, the “
Sellers
”) and certain
holders of securities of Hambrecht Asia Acquisition Corp., a Cayman Islands
company (the “
Company
”), who
execute a counterpart signature page hereto (each a “Sponsor” and collectively,
the “
Sponsors
”). Capitalized
terms not otherwise defined in this Agreement have the same meaning as such
capitalized terms have in the Exchange Agreement (as defined
below).
The
Sellers have entered into a share exchange agreement (the “
Exchange Agreement
”)
with Honesty Group Holdings Limited (“
Honesty Group
”) and
the Company pursuant to which the Sellers agreed to sell the Company all of
their outstanding interests in Honesty Group. In connection with
entering into the Exchange Agreement, and as a condition to the execution by
Sellers of the Exchange Agreement, the Sellers have requested that the Sponsors
enter into this Agreement.
Certain
of the Sponsors, consisting of John Wang, Robert J. Eu, Cannon Family
Irrevocable Trust, AEX Enterprises Limited, W.R. Hambrecht + Co., LLC, Hambrecht
1980 Revocable Trust, Shea Ventures LLC, and Marbella Capital Partners Ltd (the
“
Initial
Sponsors
”) have entered into a Securities Escrow Agreement (the “
IPO Escrow
Agreement
”), dated as of March 7, 2008, with Continental Stock Transfer
& Trust Company, as escrow agent (the “
IPO Escrow Agent
”),
pursuant to which the Initial Sponsors have deposited in escrow their HMAUF
Shares to be held for a period of one year following the Closing of the
transactions contemplated by the Exchange Agreement or another Business
Combination as described in the IPO Escrow Agreement.
NOW, THEREFORE,
in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
I.
Earn-Out
.
A. Each
Sponsor agrees that the number of HMAUF Shares owned by such Sponsor and set
forth opposite such Sponsor’s name in the column captioned “Earn-Out Shares” on
Exhibit A (the “
Earn-Out Shares
”)
shall be forfeited and cancelled unless the First Earn-Out Milestone is met or
the Second Earn-Out Milestone is met. Each Sponsor agrees to enter
into the Escrow Agreement with the Escrow Agent, the Sellers and the Company
simultaneously with the Closing.
B. At the
Closing, each Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent
shall transfer and deliver to the Escrow Agent under the Escrow Agreement such
Sponsor’s Earn-Out Shares. At the Closing, each Sponsor whose HMAUF
Shares are held by the IPO Escrow Agent shall deliver irrevocable instructions
to the IPO Escrow Agent to deliver to the Escrow Agent such Sponsor’s Earn-Out
Shares at the time such Earn-Out Shares would otherwise be delivered to such
Sponsor under the IPO Escrow Agreement. At the Closing, each Sponsor
shall deliver to the Escrow Agent all stock powers, assignments and related
documents as may be necessary to effect the transfer to the Company and
cancellation of such Sponsor’s Earn-Out Shares.
C. If the
First Earn-Out Milestone is met, each Sponsor shall be entitled to receive such
Sponsor’s Earn-Out Shares on the First Earn-Out Milestone Date. If
the First Earn-Out Milestone is not met but the Second Earn-Out Milestone is
met, each Sponsor shall be entitled to receive such Sponsor’s Earn-Out Shares on
the Second Earn-Out Milestone Date. If neither the First Earn-Out
Milestone nor the Second Earn-Out Milestone is met, all of the Earn-Out Shares
shall be forfeited to the Company and cancelled. The Earn-Out Shares
shall be released to the Sponsors or the Company at the times and in the manner
provided in the Escrow Agreement.
II.
Forfeited
Shares
. Each Sponsor agrees that the number of HMAUF Shares
owned by such Sponsor and set forth opposite such Sponsor’s name in the column
captioned “Forfeited Shares” on Exhibit A (the “
Forfeited Shares
”)
shall be forfeited and cancelled effective as of the Closing. At the
Closing, each Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent
shall transfer and deliver to the Company such Sponsor’s Forfeited
Shares. Each Sponsor whose HMAUF Shares are held by the IPO Escrow
Agent shall deliver irrevocable instructions to the IPO Escrow Agent to deliver
to the Company such Sponsor’s Forfeited Shares at the time such Forfeited Shares
would otherwise be delivered to such Sponsor under the IPO Escrow
Agreement. At the Closing, each Sponsor shall deliver to the Company
all stock powers, assignments and related documents as may be necessary to
effect the transfer to the Company and cancellation of such Sponsor’s Forfeited
Shares.
III.
Lock
Up
.
A.
Each Sponsor agrees to not offer, sell,
contract to sell, pledge or otherwise dispose of or enter into any transaction
which is designed to, or might reasonably be expected to result in the
disposition
(whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or indirectly, of or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act and the
rules and regulations of the SEC promulgated thereunder with respect to
(collectively, a “
Disposition
”) any HMAUF Shares owned by such
Sponsor on the date hereof for a period commencing on the date hereof and ending
on the second anniversary of the Closing Date, inclusive, without the prior
written consent of the Company;
provided,
however
, that the Sponsor
may transfer: (1) any HMAUF Shares to any partner, sponsor or member of the
Sponsor if, prior to such transfer, such partner, sponsor or member agrees in
writing to be bound by the restrictions set forth herein; (2) any HMAUF Shares
to any controlled affiliate of the Sponsor if, prior to such transfer, such
affiliate agrees in writing to be bound by the restrictions set forth herein,
(3) any HMAUF Shares for estate planning purposes if, prior to such transfer,
the person receiving such Shares agrees in writing to be bound by the
restrictions set forth herein, or (4) two-thirds of the HMAUF Shares owned by
such Sponsor on the date hereof on or after the one-year anniversary of the
Closing Date, and
further
provided
, that the
one-third of the HMAUF Shares owned by such Sponsor that are subject to the
escrows provided for in the IPO Escrow Agreement or the Escrow Agreement shall
not be Disposed of by such Sponsor so long as such HMAUF Shares are subject to
such escrows.
B.
Each Sponsor hereby consents to the
Company issuing a stop transfer instruction to the transfer agent in accordance
with the terms of this Agreement. Any sale of HMAUF Shares in violation of this
Agreement by a Sponsor without the consent of the Company and Sellers shall
constitute a material breach of this Agreement by such
Sponsor.
C.
Each Sponsor acknowledges that its
breach or impending violation of any of the provisions of this Section III may
cause irreparable damage to the Company and Sellers for which remedies at law
would be inadequate. Each Sponsor further acknowledges and agrees that the
provisions set forth herein are essential terms and conditions of this Agreement
and that the Company or Sellers may seek to enforce this Agreement by, in
addition to any rights or remedies provided under any other agreement, obtaining
a decree or order from any court of competent jurisdiction to enjoin such
impending or actual violation of any of such provisions. Such decree or order,
to the extent appropriate, shall specifically enforce the full performance of
any such provision by the Sponsors. This remedy shall be in addition to all
other remedies available to the Company or Sellers at law or equity.
IV.
Consent to Warrant
Amendment
. Each Sponsor that owns Sponsor Warrants agrees to
consent to the Warrant Amendment.
V.
Notices
. All notices
and other communications provided for herein shall be in writing and shall be
deemed to have been duly given, delivered and received if delivered personally,
if sent by facsimile, registered or certified mail (return receipt requested)
postage prepaid, or by courier guaranteeing next day delivery, in each case to
the party to whom it is directed at the addresses indicated on the signature
pages hereto (or at such other address for any party as shall be specified by
notice given in accordance with the provisions hereof, provided that notices of
a change of address shall be effective only upon receipt thereof). Notices
delivered personally shall be effective on the day so delivered, notices sent by
registered or certified mail shall be effective five days after mailing, notices
sent by facsimile shall be effective when the sender receives a receipt
acknowledging delivery, and notices sent by courier guaranteeing next day
delivery shall be effective on the earlier of the second Business Day after
timely delivery to the courier or the day of actual delivery by the
courier.
VI.
Amendment and
Waiver
. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement shall be effective
against the Company, Sellers or the Sponsors unless such modification, amendment
or waiver is signed by each of the parties hereto. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
VII.
Severability
. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
VIII.
Entire
Agreement
. Except as otherwise expressly set forth herein,
this document and the Escrow Agreement embody the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
IX.
Successors and
Assigns
. Except as otherwise expressly provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company, Sellers and their respective successors and assigns and the Sponsors
and any subsequent holders of HMAUF Shares and the respective successors and
assigns of each of them.
X.
Counterparts
. This
Agreement may be executed simultaneously in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
Agreement.
XI.
Governing
Law
. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any conflict of laws provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
XII.
Descriptive
Headings
. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
SIGNATURE
PAGE TO
SPONSOR
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
|
HAMBRECHT
ASIA ACQUISITION CORP.
|
|
|
|
|
|
|
|
By:
|
/s/
Robet Eu
|
|
|
Name:
Robert Eu
|
|
|
Title:
Chairman
|
|
|
Address:
13/F Tower 2
|
|
|
New
World tower
18
Queens Road Central
|
|
Hong
Kong
|
|
SIGNATURE
PAGE TO
SPONSOR
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
|
SUN
ZONE INVESTMENTS LIMITED
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Or Tin
Man
|
|
|
Name:
Tin Man Or
Title: Owner
|
|
|
|
|
|
|
|
|
Address:
|
|
|
c/o
Guanke (Fujian) Electron
Technological
Industry Co. Ltd.
SGOCO
Technology Park
Loushan,
Jinjiang City
Fujian,
China 32200
Attn: Burnette
Or, President
|
|
|
|
|
|
|
|
|
|
/s/
Ting Sze Kit
|
|
|
SZE
KIT TING
|
|
|
|
|
|
|
|
|
Address:
|
|
|
Room
2101, 21/F., Block B
Healthy
Gardens, No. 560 King’s Road
North
Point, Hong Kong
|
|
SIGNATURE
PAGE TO
SPONSOR
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
|
|
|
|
|
|
|
/s/
Robert Eu
|
|
|
/
s/
W.R. Hambrecht
|
|
|
Robert
Eu
Address
1356
Greenwich Street
San
Francisco, CA 94109 USA
|
|
Name:
W.R. Hambrecht + Co, LLC
Title:
c/o
Jonathan Fayman, Pier 1, Bay 3
San
Francisco, CA 94111 USA
|
|
|
|
|
|
|
|
/s/
John
Wang
|
|
|
/
s/
W.R. Hambrecht
|
|
|
John
Wang
Loft
2-305, 283 West Jianguo Road
XuHiu
District, Shanghai 200031
|
|
Hambrecht
1980 Revocable Trust
c/o
Anna Schweizer, Pier 1, Bay 3
San
Francisco, CA 94111 USA
|
|
|
|
|
|
|
|
/s/
Stephen N. Cannon
|
|
|
/s/
Edward H. Shea
|
|
|
Cannon
Family Irrevocable Trust
2538
Hayward Drive
Burlingame,
CA 94010 USA
|
|
Shea
Ventures LLC
P.O.
Box 489, 655 Brea Canyon Road
Walnut
|
|
|
|
|
|
/s/
Robert Eu
|
|
|
/s/
John Wang
|
|
|
AEX
Enterprises Limited
Rm
802, AIA Tower, 183 Electric Road
North
Point, Hong Kong
|
|
Marbella
Capital Partners Ltd.
Loft
2-305, 283 West Jianguo Road
XuHui
District, Shanghai 200031
|
AMENDMENT
NO. 1
TO
SPONSOR
AGREEMENT
This Amendment No. 1 to Sponsor
Agreement (“
Amendment
”) is made
as of the 11
th
day of
March 2010, by and among Sun Zone Investments Limited, a company organized under
the laws of the British Virgin Islands (“
Sun Zon
e”), and Sze
Kit Ting (collectively with Sun Zone, the “
Sellers
”) and certain
holders of securities of Hambrecht Asia Acquisition Corp., a Cayman Islands
company (the “
Company
”), who
execute a counterpart signature page hereto (each a “
Sponsor
” and
collectively, the “
Sponsors
”) and amends
the Sponsor Agreement (“
Sponsor Agreement
”),
dated as of February 12, 2010, by and among the Sellers, the Company and the
Sponsors. Capitalized terms not otherwise defined in this Amendment
have the same meaning as such capitalized terms have in the Sponsor
Agreement.
WHEREAS, the Company and the Sponsors
have notified the Sellers that the Company may not be able to meet the minimum
Net Trust Proceeds condition to the Sellers’ obligation to close the
Transactions, and the Sellers have agreed to lower the minimum on the terms and
conditions set forth in this Amendment and Amendment No. 1 to the Share Exchange
Agreement (as defined below); and
WHEREAS, to induce the Sellers to amend
the Share Exchange Agreement (“
Exchange Agreement
”),
dated as of February 12, 2010, between the Sellers, Honesty Group Holdings
Limited and the Company and to enter into Amendment No. 1 to the Share Exchange
Agreement (“
Amendment
to Exchange Agreement
”) of even date herewith, the Sponsors have, among
other things, agreed to surrender to the Company for cancellation the Sponsor
Warrants at Closing and to escrow additional the Company Shares held by them
subject to certain additional conditions;
NOW,
THEREFORE, in consideration of the foregoing and the covenants and
agreement of the parties set forth below and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. A new
subsection D is hereby added to Section I to the Sponsor Agreement to read in
its entirety as follows:
D.
Notwithstanding the achievement of an Earn-Out Milestone, all of Sponsor’s
Earn-Out Shares shall remain in escrow until the Conditions (as defined below)
set forth in Section I-1 have been satisfied prior to the Measurement Date (as
defined below) provided, that if the Conditions are not satisfied prior to the
Measurement Date, the Sponsor’s Earn-Out Shares shall be forfeited and return to
the Company for cancelation to the same extent, proportionately, as the
Sponsors’ Conditional Shares (as defined below).
2. A new
Section I-1 is hereby added to the Sponsor Agreement immediately following
Section I to read in its entirety as follows:
I-1
Sponsors’ Conditional
Shares
.
A. Each
Sponsor agrees that the number of HMAUF Shares owned by such Sponsor and set
forth opposite such Sponsor’s name in the column captioned “Conditional Shares”
on Exhibit A-1 to the Sponsor Agreement (the “
Conditional Shares
”)
shall be forfeited to the Company and cancelled unless on or before December 31,
2011 or, in the event the First Earn-Out Milestone is not met, December 31,
2012, or such earlier date as the conditions set forth in clauses (2) and (3)
below are met (the “
Measurement Date
”),
each following conditions shall have been met (collectively, the “
Conditions
”),
provided
,
however
, in the event
the Conditions set forth in clauses (1) and (2) have been met but less than $15
million in gross proceeds of equity has been raised, the Conditional Shares
shall not be forfeited to the extent of the equity raised from the efforts of
Sponsor Representatives, on a pro rata basis (e.g., in the event $12 million of
gross proceeds is raised, only 20% of the Conditional Shares shall be
forfeited):
(1) from
the Closing Date until the Measurement Date, Robert Eu and John Wang (together,
the “Sponsor Representatives”) shall have provided to the Company without
compensation to the Sponsor Representatives or their Affiliates (other than the
reimbursement of reasonable business expenses, upon presentation of appropriate
documentation for financial reporting and tax purposes of the incurrence of such
expenses on behalf of the Company), at the Company’s request, the following
services for no fewer than 30 hours per month in the aggregate (it being
understood that if the Company does not request services, the Sponsors shall not
be required to provide services):
·
Investor and
public relations services (including the drafting/review of press releases and
assisting with road shows, including appearing at road shows with members of
management);
·
Assisting with the
coordination of other advisors;
·
Assisting the
Company with listing on the Nasdaq Global Market or the Nasdaq Global Select
market (or, if the Nasdaq Global Market or Global Select Market does not
continue to exist, the global market closest in scope and qualifications to the
Nasdaq Global Market on the date hereof); and
·
Introducing
investors and service providers to the Company;
The
Sponsor Representatives shall perform the foregoing actions in cooperation with
the Company’s other designated advisors.
(2) the
Company being listed on the Nasdaq Global Market or the Nasdaq Global Select
Market (or, if the Nasdaq Global Market does not continue to exist, the global
market closest in scope and qualifications to the Nasdaq Global Market on the
date hereof), provided that the Company acts in good faith to have its ordinary
shares listed promptly after meeting the qualifications of either such market
(which shall include the obligation of the Company to promptly submit an
application and respond to any requests for information from Nasdaq);
and
(3) the
Sponsor Representatives shall have made available to the Company the opportunity
(evidenced by non-binding commitments of investors financially capable of
consummating the transactions) to sell additional common equity with gross
proceeds of at least U.S. $15 million via a public offering at a time when both
the Company and the Sponsor Representatives believe to be advantageous to raise
money at the highest price possible, with pricing determined in accordance with
the pricing model described on
Exhibit B
hereto . To
the extent that the Sponsor Representatives are in compliance with clause (1)
above, all equity capital raised by the Company prior to the Determination Date,
including any amounts received by the Company: (x) upon exercise of the Sponsor
Warrants transferred as provided in Section II-1 below and (y) upon exercise of
any IPO Warrants outstanding after the consummation of the Transactions, will be
included in the calculation of the U.S. $15 million to be raised. If
the Company determines not to accept the offering price determined as provided
herein, the Condition shall be deemed satisfied to the extent of the equity
capital which would have been raised if the offering had been consummated at
such price.
B. At the
Closing, each Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent
shall transfer and deliver to the Escrow Agent under the Escrow Agreement such
Sponsor’s Conditional Shares. At the Closing, each Sponsor whose
HMAUF Shares are held by the IPO Escrow Agent shall deliver irrevocable
instructions to the IPO Escrow Agent to deliver to the Escrow Agent such
Sponsor’s Conditional Shares at the time such Conditional Shares would otherwise
be delivered to such Sponsor under the IPO Escrow Agreement. At the
Closing, each Sponsor shall deliver to the Escrow Agent all stock powers,
assignments and related documents as may be necessary to effect the transfer to
the Company and cancellation of such Sponsor’s Conditional Shares.
C. If the
Conditions are met on or before the Measurement Date, each Sponsor shall be
entitled to receive such Sponsor’s Conditional Shares within 10 business days
after the Measurement Date. If the Conditions are not met by the
latest Measurement Date, all of the Conditional Shares shall be forfeited to the
Company and cancelled. The Earn-Out Shares shall be released to the
Sponsors or the Company at the times and in the manner provided in the Escrow
Agreement.
D. The
Company agrees to use reasonable business efforts to cooperate with the Sponsors
and act in good faith to take such actions as may be reasonably required in the
best interests of the Company to satisfy the Conditions.
3. A new
Section II-1 is hereby added to the Sponsor Agreement immediately following
Section I to read in its entirety as follows:
II-1
Forfeited
Warrants
. Each Sponsor agrees all of the Sponsor Warrants
owned beneficially or of record by such Sponsor shall be forfeited
and cancelled effective as of the Closing, other than Sponsor Warrants to
purchase 250,000 in ordinary shares will be transferred as of the Closing Date,
without charge, to an investor [Pope Investments II, LLC], as directed by the
Company. At the Closing, each Sponsor shall deliver to the Company
all stock powers, assignments and related documents as may be necessary to
effect the transfer to the Company and cancellation of such Sponsor’s Sponsor
Warrants.
4. The
following shall be added to the Sponsor Agreement immediately following the last
sentence of Section XI:
The parties hereto agree that any action, proceeding or claim arising out of or
relating in any way Section I-1 of this Agreement which is not resolved within
30 days by negotiations between the parties shall, on written notice given to
the other parties by either Sponsor or the Company (any such notice, a Notice of
Arbitration”), be resolved through final and biding arbitration conducted in the
City of New York, State of New York in accordance with the rules and regulations
of the American Arbitration Association (AAA), by a panel of three arbitrators
selected from the AAA Commercial Disputes Panel instead of any jury trial and
that the arbitrator panel’s decision shall be final and binding to the fullest
extent permitted by law and enforceable by any court having jurisdiction
thereof. The selection of the arbitrators shall be made within 30
days after the Notice of Arbitration, one by the Sponsors and one by the
Company, and those two shall select a third arbitrator to serve as the chairman
of the panel. The cost of such arbitrators and arbitration services,
together with the prevailing party’s reasonable legal fees of a single law firm
and expenses, shall be borne by the non-prevailing party or as determined by the
equities of the matter by the arbitrators.
5.
Exhibit A to the Sponsor Agreement is hereby replaced in its entirety by Exhibit
A-1 to this Amendment.
6. If any
term or other provision of this Amendment is invalid, illegal or incapable of
being enforced by any Law, or public policy, all other conditions and provisions
of this Amendment shall nevertheless remain in full force and effect so long as
the economic or legal substance of the Transactions is not affected in any
manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify this Amendment so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that Transactions are fulfilled to the extent
possible.
7. This Amendment may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other
parties. Execution and delivery of this Amendment by facsimile or
other electronic transmission evidencing a manual signature is legal, valid and
binding for all purposes.
8. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
9. Except
as amended hereby, the Sponsor Agreement continues in full force and effect as
written.
IN
WITNESS WHEREOF, intending to be legally bound, the parties have executed this
Amendment on the dates set forth opposite their signatures below to be effective
as of the date first above written.
[SIGNATURE
PAGES FOLLOW]
SIGNATURE
PAGE TO
AMENDMENT
No. 1 TO SPONSOR AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
HAMBRECHT
ASIA ACQUISITION CORP.
By: /s/
John Wang
Name:
John Wang
Title:
CEO
Address:
13/F Tower 2
New World
tower
18 Queens
Road Central
Hong
Kong
SIGNATURE
PAGE TO
AMENDMENT
No. 1 TO SPONSOR AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
|
SUN
ZONE INVESTMENTS LIMITED
|
|
|
|
|
|
By:
|
/s/ Or Tin Man
|
|
|
Name:
|
Tin
Man Or
|
|
|
Title:
|
Owner
|
|
|
|
|
|
|
Address:
|
|
|
|
c/o
Guanke (Fujian) Electron
Technological
Industry Co. Ltd.
SGOCO
Technology Park
Loushan,
Jinjiang City
Fujian,
China 32200
Attn: Burnette
Or, President
|
|
|
/s/ Ting Sze Kit
|
|
|
SZE
KIT TING
|
|
|
Address:
|
|
|
Room
2101, 21/F., Block B
Healthy
Gardens, No. 560 King’s Road
North
Point, Hong Kong
|
|
SIGNATURE
PAGE TO
AMENDMENT
No. 1 TO SPONSOR AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
|
For individual Sponsors:
|
|
For Sponsors other than individuals:
|
|
|
|
|
|
|
|
Cannon Family Irrevocable Trust
|
|
/s/ John Wang
|
|
|
|
|
John
Wang
|
|
|
|
|
|
|
By:
|
/s/ Stephen N.
Cannon
|
|
|
|
Name:
|
Stephen
N. Cannon
|
|
/s/ Robert
Eu
|
|
Title:
|
Trustee
|
|
Robert
Eu
|
|
|
|
|
|
|
AEX
Enterprises Limited
|
|
|
|
|
|
|
Address
(for all Sponsors):
|
|
|
|
|
|
|
By:
|
/s/ Robert
Eu
|
|
Address:
13/F Tower 2
|
|
Name:
|
Robert
Eu
|
|
New
World tower
|
|
|
|
|
18
Queens Road Central
|
|
WR
Hambrecht + Co., LLC
|
|
Hong
Kong
|
|
|
|
|
|
|
By:
|
/s/ W.R.
Hambrecht
|
|
|
|
Name:
|
W.R.
Hambrecht
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
Hambrecht
1980 Revocable Trust
|
|
|
|
|
|
|
|
|
By:
|
/s/ W.R.
Hambrecht
|
|
|
|
Name:
|
W.R.
Hambrecht
|
|
|
|
Title:
Trustee
|
|
|
|
|
|
|
|
|
Shea
Ventures LLC
|
|
|
|
By:
|
/s/Ronald L.
Lakey
|
|
|
|
Name:
Ronald L. Lakey
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
|
|
Marbella
Capital Partners Ltd.
|
|
|
|
|
|
|
|
|
By:
|
/s/
John
Wang
|
|
|
|
Name:
John Wang
|
|
|
|
Title:
Director
|
REGISTRATION RIGHTS
AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 12th
day of March, 2010, by and among, Hambrecht Asia Acquisition Corp., a company
organized under the laws of the Cayman Islands (the “Company”), and the
undersigned parties listed under Investors on the signature page hereto (each,
an “Investor” and collectively, the “Investors”).
WHEREAS,
the Investors have and will be issued Ordinary Shares (as defined below) in the
Company pursuant to a Share Exchange Agreement dated as of February 12, 2010, as
amended, between the Company, the Investors and Honesty Group Holdings Limited
(the “Shares Exchange Agreement”); and
WHEREAS,
the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of Ordinary Shares
(as defined below) owned by them;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
DEFINITIONS. 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.
“Demand
Registration” is defined in Section 2.1.1.
“Demanding
Holder” is defined in Section 2.1.1.
“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 2.3.
“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.
“Maximum
Number of Shares” is defined in Section 2.1.4.
“Notices”
is defined in Section 6.3.
“Ordinary
Shares” shall mean ordinary shares of the Company, par value $0.001 per
share.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Purchase
Option” means the option to purchase 280,000 units, each unit consisting of one
Ordinary Share and one Ordinary Share purchase warrant, issued to Broadband
Capital Management, Inc. or its registered assignees in connection with the
Company’s initial public offering of securities (as may be transferred from time
to time in accordance with its terms).
“Register,”
“registered” and “registration” mean a registration with respect to the
Registrable Securities 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 Ordinary Shares issued to the Investors pursuant to
that certain Share Exchange Agreement. Registrable Securities
includes any warrants, Ordinary Shares or other securities of the Company issued
as a dividend or other distribution with respect to or in exchange for or in
replacement of such Ordinary Shares. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) the Registrable Securities are
salable under Rule 144 without volume restrictions, in the opinion of counsel to
the Company.
“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
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.
“Share
Exchange 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
Demand
Registration
.
2.1.1
Request for
Registration
. At any time and from time to time on or after
the date hereof, the holders of not less than 800,000 shares 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 2.1.4 and the provisos set forth in
Section 3.1.1. The Company shall not be obligated to effect more than
an aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect
of Registrable Securities.
2.1.2
Effective
Registration
. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its obligations under this Agreement with respect
thereto; provided, however, that if, after such Registration Statement has been
declared effective, the offering of Registrable Securities pursuant to a Demand
Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement
with respect to such Demand Registration will be deemed not to have been
declared effective, unless and until, (i) such stop order or injunction is
removed, rescinded or otherwise terminated, and (ii) a majority in interest of
the Demanding Holders thereafter elect to continue the offering; provided,
further, that the Company shall not be obligated to file a second Registration
Statement until a Registration Statement that has been filed is counted as a
Demand Registration or is terminated or withdrawn.
2.1.3
Underwritten
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.
2.1.4
Reduction of
Offering
. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises the Company
and the Demanding Holders in writing that the dollar amount or number of 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 sell 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
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.
2.1.5
Withdrawal
. If
a majority in interest of the Demanding Holders disapprove of the terms of any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority in interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority in interest of
the Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration
provided for in this Section 2.1.
2.2
Piggy-Back
Registration
.
2.2.1
Piggy-Back
Rights
. If at any time on or after the Release 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 2.1), other than a Registration Statement (i)
filed in connection with any employee stock option or other benefit plan, (ii)
for an exchange offer or offering of securities solely to the Company’s existing
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.
2.2.2
Reduction of
Offering
. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the
Company and the holders of Registrable Securities in writing that the dollar
amount or number of 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 2.2, 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 sell 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, as to which registration has been
requested pursuant to written contractual piggy-back registration rights which
other shareholders desire to sell that can be sold without exceeding the Maximum
Number of Shares.
2.2.3
Withdrawal
. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company 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.
2.3
Registrations 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 2.3: (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 2.3 shall
not be counted as Demand Registrations effected pursuant to Section
2.1.
3.
REGISTRATION PROCEDURES.
3.1
Filings;
Information
. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company
shall use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof as expeditiously as practicable, and in connection with any such
request:
3.1.1
Filing Registration
Statement
. The Company shall, as expeditiously as possible and
in any event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall use
its 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.
3.1.2
Copies
. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal
counsel, copies of 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.
3.1.3
Amendments and
Supplements
. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and in
compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement (which period shall not exceed the sum of one
hundred eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been
withdrawn.
3.1.4
Notification
. After
the filing of a Registration Statement, the Company shall promptly, and in no
event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing,
and shall further notify such holders promptly and confirm such advice in
writing 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.
3.1.5
State 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.
3.1.6
Agreements for
Disposition
. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations,
warranties and covenants of the Company in any underwriting agreement which are
made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the holders of Registrable Securities
included in such registration statement. No holder of Registrable
Securities included in such registration statement shall be required to make any
representations or warranties in the underwriting agreement except, if
applicable, with respect to such holder’s organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder’s material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished in
writing expressly for inclusion in such Registration
Statement. 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.
3.1.7
Cooperation
. 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.
3.1.8
Records
. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
3.1.9
Opinions and Comfort
Letters
. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed
counterpart, addressed to such holder, of (i) any opinion of counsel to the
Company delivered to any Underwriter and (ii) any comfort letter from the
Company’s independent public accountants delivered to any
Underwriter. In the event no legal opinion is delivered to any
Underwriter, the Company shall furnish to each holder of Registrable Securities
included in such Registration Statement, at any time that such holder elects to
use a prospectus, an opinion of counsel to the Company to the effect that the
Registration Statement containing such prospectus has been declared effective
and that no stop order is in effect.
3.1.10
Earnings
Statement
. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and 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.
3.1.11
Listing
. 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.
3.2
Obligation to Suspend
Distribution
. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in
the case of a resale registration on Form F-3 pursuant to Section 2.3 hereof,
upon any suspension by the Company, pursuant to a written insider trading
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.
3.3
Registration
Expenses
. The Company shall bear all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1, any
Piggy-Back Registration pursuant to Section 2.2, and any registration on Form
S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or “blue sky” laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company’s internal expenses (including, 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) FINRA 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.
3.4
Information
. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
3.5
Holder 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.
4.1
Indemnification by the
Company
. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents, and each person, if any, who controls 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 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 or Purchase Option
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.
4.2
Indemnification by Holders
of Registrable Securities
. Each selling holder of Registrable
Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by
such selling holder, indemnify and hold harmless the Company, each of its
directors and officers and each underwriter (if any), and each other 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.
4.3
Conduct of Indemnification
Proceedings
. Promptly after receipt by any person of any
notice of any loss, claim, damage or liability or any action in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the
“Indemnified Party”) shall, if a claim in respect thereof is to be made against
any other person for indemnification hereunder, notify such other person (the
“Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability
or action; provided, however, that the failure by the Indemnified Party to
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which the Indemnifying Party may have to such Indemnified Party
hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking
indemnification with respect to any claim or action brought against the
Indemnified Party, then the Indemnifying Party shall be entitled to participate
in such claim or action, and, to the extent that it wishes, jointly with all
other Indemnifying Parties, to assume control of the defense thereof with
counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, consent to entry of judgment or
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
4.4
Contribution
.
4.4.1 If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding Section
4.4.1. 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.
5.1
Demanding Holder
Underwritten Offering
. In the case of any registration effected pursuant
to Section 2.1, the Demanding Holders shall have the right to designate a
managing underwriter reasonably acceptable to the Company in any such offering
which is to be an underwritten offering and, to the extent required by the
underwriters, the Company and any other person including securities in such
registration shall be parties to any underwriting agreement relating thereto and
shall make appropriate representations and warranties and other agreements for
the benefit of the underwriters and the Company.
5.2
Company Underwritten
Offering
. In the case of any registration effected pursuant to
Section 2.2, the Company or another group of security holders shall have
the right to designate the managing underwriter in any underwritten offering
and, to the extent required by the underwriters, the holders of the Registrable
Securities shall be a party to any underwriting agreement relating thereto and
shall make appropriate representations and warranties and other agreements for
the benefit of the underwriters and the Company.
5.3
Rule
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.
6.1
Other Registration
Rights
. The Company represents and warrants that , except for
the securities issued to the Sponsors (as such term is defined in the Share
Exchange Agreement) or issuable upon exercise of the Purchase Option or IPO
Warrants (as such term is defined in the Share Exchange Agreement), no person,
other than a holder of the Registrable Securities has any right to require the
Company to register any shares of the Company’s capital stock for sale or to
include shares of the Company’s capital stock in any registration filed by the
Company for the sale of shares of capital stock for its own account or for the
account of any other person.
6.2
Assignment; No Third Party
Beneficiaries
. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties
and obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities by any such
holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns.
6.3
Notices
. All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”) required or permitted to be given hereunder or which
are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by reputable air courier service with charges
prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed
given on the date of service or transmission if personally served or transmitted
by telegram, telex or facsimile; provided, that if such service or transmission
is not on a business day or is after normal business hours, then such notice
shall be deemed given on the next business day. Notice otherwise sent
as provided herein shall be deemed given on the next business day following
timely delivery of such notice to a reputable air courier service with an order
for next-day delivery.
To
the Company:
Hambrecht
Asia Acquisition Corp.
13/F
Tower 2
New
World Tower
18
Queens Road Central
Hong
Kong
Attn:
John Wang, Chief Executive Officer
with
a copy to:
Loeb
& Loeb LLP
345
Park Avenue
New
York, New York 10154
Attn: Mitchell
S. Nussbaum, Esq.
To
an Investor, to:
Sun
Zone Investments Limited
c/o
Guanke (Fujian) Electron Technological Industry Co. Ltd.
SGOCO
Technology Park
Loushan,
Jinjiang City
Fujian,
China 32200
Attn: Burnette
Or, President
and:
Sze
Kit Ting
Room
2101, 21/F.
Block
B, Healthy Gardens, No. 560
King’s
Road, North Point, Hong Kong
6.4
Severability
. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
6.5
Counterparts; 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.
6.6
Entire
Agreement
. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto) constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.7
Modifications and
Amendments
. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such
party.
6.8
Titles and
Headings
. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
6.9
Waivers and
Extensions
. Any party to this Agreement may waive any right,
breach or default which such party has the right to waive, provided that such
waiver will not be effective against the waiving party unless it is in writing,
is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived
has arisen or the breach or default waived has occurred. Any waiver
may be conditional. No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof nor of any other agreement or provision herein
contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10
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
(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.
6.11
Remedies
Cumulative
. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under
this Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.12
Governing
Law
. This Agreement shall be governed by, interpreted under,
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed within the State of New York,
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 (each,
a “New York Court”), 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.
6.13
Waiver of Trial by
Jury
. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other
proceeding (whether based on contract, tort or otherwise) arising out of,
connected with or relating to this Agreement, the transactions contemplated
hereby, or the actions of the Investor in the negotiation, administration,
performance or enforcement hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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.
|
|
HAMBRECHT
ASIA ACQUISITION CORP.
|
|
|
|
|
|
|
By:
|
/s/ John Wang
|
|
|
|
Name:
John Wang
|
|
|
|
Title:
Chief Executive Officer, President
|
|
|
|
and Director
|
|
|
|
|
|
|
INVESTORS:
|
|
|
|
|
|
|
SUN
ZONE INVESTMENTS LIMITED
|
|
|
|
|
|
|
By:
|
/s/ Or Tin Man
|
|
|
Name:
Tin Man Or
|
|
|
Title:
Owner
|
|
|
|
|
|
|
/s/ Ting Sze Kit
|
|
|
Sze
Kit Ting
|