FORM OF RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
Exhibit
10.8
FORM
OF RIGHT OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
RIGHT
OF
FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “Agreement”)
is
made as of [•],
2007
by and between BBV Vietnam S.E.A. Acquisition Corp., a ▇▇▇▇▇▇▇▇ Islands
corporation (the “Company”),
and
Bantry Bay Ventures-Asia, LLC., a private
equity limited liability company primarily focused on investments in China
and
Vietnam (“Bantry
Bay Ventures”)
in
connection with the Company’s proposed public offering of Units in the United
States pursuant to the Company’s Registration Statement, on Form S-1 (File No.
333-146829), under the Securities Act of 1933, as amended (the “Registration
Statement”).
RECITALS
WHEREAS,
Bantry
Bay Ventures
and the
Company share certain officers and directors; and
WHEREAS,
because each of the Company and Bantry
Bay Ventures will
be
seeking business opportunities in Asia, the parties have made this Agreement
to
clarify the business opportunities for which each party shall have the right
of
first refusal.
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. Right
of First Refusal.
For the
term specified in Section
2
of this
Agreement, each party agrees to grant
to
such
other party (i) in its articles of incorporation or equivalent document, or
(ii)
by action of its board of directors, a right of first refusal to any corporate
opportunities belonging to it that concern a Business Combination (as defined
herein) as follows:
(a) Bantry
Bay Ventures
shall
have a right of first refusal for corporate
opportunities with respect to target
businesses that
have
a fair market value reasonably estimated to be less than $28 million;
and
(b) The
Company shall have a right of first refusal with respect to corporate
opportunities of target businesses that have a fair market value reasonably
estimated to be $28 million
or
more.
Decisions
by the Company to release Bantry
Bay Ventures
to
pursue any corporate
opportunity
of
target businesses that have a fair market value reasonably estimated to be
$28
million or more
will be
made by a majority of the Company’s independent directors.
As
used
herein, the term “Business
Combination”
(as
described more fully in the Registration Statement) shall mean any acquisition,
or acquisition of control, of one or more operating businesses through a merger,
capital stock exchange, asset acquisition, stock purchase or other similar
business combination, or
contractual
arrangements.
Any
party
whose directors, officers or employees become aware of a corporate opportunity
which is subject to this Agreement (such party, the “Grantor”)
shall
provide written notice of the business opportunity
to the party to whom it has the duty to grant the right of first refusal (the
“Grantee”)
within
5 (five) business days of its identification of the corporate opportunity.
Any
right
of
first refusal granted shall expire ninety
(90)
days
from the date of the written notice, provided
that,
during
such ninety
(90)-day
period the Grantee has
failed to commence discussions with any
third
party
regarding a Business Combination.
1
2. Term.
This
Agreement shall become effective on its execution and shall remain in effect
for
a period to expire upon the earlier of (i) the consummation by the Company
of a
Business Combination, or (ii) the Company’s liquidation,
each
in
the
circumstances and in the manner described in the Registration
Statement.
3. Notices.
All
notices or communications hereunder shall be in writing, addressed as follows:
To
the
Company:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇, President
with
copies to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇, Esq.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If
to
Bantry
Bay Ventures:
Bantry
Bay Ventures-Asia, LLC.
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇. ▇▇▇, Managing Partner
with
copies to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇, Esq.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any
such
notice or communication shall be delivered by hand or by courier or sent
certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
a
notice delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was given.
4. Severability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and effect.
2
5. Assignment.
Neither
this Agreement nor any rights or obligations hereunder shall be assignable
or
otherwise subject to hypothecation by either party hereto.
6. Amendment.
This
Agreement may only be amended by written agreement of the parties hereto.
7. Survival.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this Section
7
are in
addition to the survivorship provisions of any other section of this Agreement.
8. Governing
Law and Jurisdiction.
This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the State of New York, without reference to rules relating to conflicts
of law. The undersigned hereby agrees that any action, proceeding or claim
against the undersigned 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.
The undersigned hereby waives any objection to such exclusive jurisdiction
and
that such courts represent an inconvenient
forum. The
Company hereby appoints, without power of revocation, Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, P.C,
with an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇
▇.
▇▇▇▇, Esq., as its agent to accept and acknowledge on its behalf service of
any
and all process which may be served in any action, proceeding or counterclaim
in
any way relating to or arising out of this letter agreement..
9. Effect
on Prior Agreements.
This
Agreement contains the entire understanding between the parties hereto and
supersedes in all respects any prior or other agreement or understanding
concerning the subject matter hereof between the Company and Excel.
10. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which, taken together, shall be deemed one
document
11. Mutual
Waiver of Jury Trial.
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST BENEFITS OF THE JUDICIAL SYSTEM,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
12. Waiver.
Each
party acknowledges and permanently and irrevocably waives any and all claims
against the other parties hereto in respect of any business opportunities not
received by it pursuant to the terms of this Agreement.
(Remainder
of page intentionally left blank. Signature pages to follow.)
3
IN
WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
above.
|
BANTRY
BAY VENTURES-ASIA, LLC
|
BBV
VIETNAM S.E.A. ACQUISITION, CORP.
|
|
By:
__________________________________
|
By:
__________________________________
|
|
Name: ▇▇▇▇▇▇
▇. ▇. ▇▇▇
|
Name: ▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title: Managing
Partner
|
Title:
President
|
|
By:
__________________________________
|
|
|
Name: ▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Title: Managing
Partner
|
|