Exhibit 10.20
Final Execution Copy
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is entered into as of July
__, 2007 by and between Scope Metals Trading & Technical Services Limited, an
Israeli corporation (the "COMPANY"), (Company No. 520037425), and FIMSCO,
Limited Partnership, an Israeli limited liability partnership, (the "INVESTOR").
Capitalized terms used herein but not defined herein shall have the respective
meanings assigned to such terms in that certain Share Purchase Agreement between
the Company and the Investor dated March 14, 2006, as amended, modified and/or
supplemented from time to time, (the "SPA").
RECITALS:
In the SPA, approved by the Company's Audit Committee, Board of Directors
and General Meeting of Shareholders prior to the consummation of the
transactions contemplated in the therein, the Company undertook that if at any
time following the Closing, the Company shall register its shares on any stock
exchange other than the TASE, and the applicable laws and regulations relating
to the sale of shares on such stock exchange require shares to be registered
prior to their sale, the Company would grant the Investor such registration
rights as are customary in registration rights agreements.
Accordingly, in anticipation of the consummation of an initial public
offering of the Company's shares on The Nasdaq Global Market (the "IPO"), in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"APPROVED UNDERWRITER" shall have the meaning set forth in Section 2.
"DEMAND REGISTRATION" shall have the meaning set forth in Section 2.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"FIMI OPPORTUNITY I FUND" shall mean FIMI Opportunity Fund, L.P., a
limited partnership formed under the laws of the State of Delaware and FIMI
Israel Opportunity Fund, Limited Partnership, a limited partnership formed under
the laws of the State of Israel.
"FIMI OPPORTUNITY II FUND" shall mean FIMI Opportunity Fund II, L.P.,
a limited partnership formed under the laws of the State of Delaware and FIMI
Israel
Opportunity Fund II, Limited Partnership, a limited partnership formed under the
laws of the State of Israel.
"FORM F-3" shall mean Form F-3 under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC, which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"FORM F-3 REGISTRATION" shall have the meaning set forth in Section 4.
"HOLDER" shall mean the Investor or any of its Permitted Transferees
holding Registrable Securities, and any subsequent holder of outstanding
Registrable Securities received from the Investor or such Permitted Transferee
and to whom registration rights have been assigned by the Investor in accordance
herewith.
"INCIDENTAL REGISTRATION" shall have the meaning set forth in Section
3.
"INITIATING HOLDERS" shall mean Holders holding in the aggregate no
less than 50% of the Registrable Securities held at such time by the Holders.
"INVESTOR" shall mean FIMSCO, Limited Partnership, an Israeli limited
liability partnership established by the entities comprising FIMI Opportunity I
Fund and FIMI Opportunity 11 Fund.
"ORDINARY SHARES" shall mean Ordinary Shares NIS 1.00 par value each
of the Company.
"PERMITTED TRANSFEREE" shall mean (i) FIMI Opportunity I Fund, FIMI
Opportunity II Fund, or (ii) any affiliated fund of FIMI Opportunity I Fund
and/or FIMI Opportunity II Fund managed by the same management company or by an
affiliate of FIMI Opportunity I Fund, FIMI Opportunity II Fund, or (iii) the
investors of FIMSCO, Limited Partnership, FIMI Opportunity I Fund or FIMI
Opportunity II Fund, or (iv) an entity controlled by, controlling, or under
common control with FIMSCO, Limited Partnership or any of the entities set forth
in (i)-(iii).
"REGISTER", "REGISTERED" and "REGISTRATION" shall mean and refer to a
registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such Registration
Statement by the SEC.
"REGISTRATION EXPENSES" shall have the meaning set forth in Section 8.
"REGISTRABLE SECURITIES" shall mean (i) any Ordinary Shares of the
Company held now or in the future by a Holder and (ii) any Ordinary Shares of
the
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Company issuable upon exercise of any warrant, option or other right of the
Holder. Notwithstanding the foregoing, Registrable Shares shall not include
otherwise Registrable Shares (i) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (ii)
which could be disposed of, under applicable law, within six (6) months without
registration, pursuant to Rule 144 of the Securities Act.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company in compliance with the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SEC" shall mean the Securities and Exchange Commission.
2. Demand Registration.
(a) Request for Demand Registration. At any time following the IPO,
the Initiating Holder shall be entitled to request in writing that the Company
use its commercially reasonable best efforts to effect the registration under
the Securities Act of all or part of the Registrable Securities of the
Initiating Holder and other Holders wishing to participate, in accordance with
this Section 2 (each, a "DEMAND REGISTRATION"). Any such request for a Demand
Registration shall specify the amount of Registrable Securities proposed to be
sold and the intended method of disposition thereof and must request the
registration of Registrable Securities with an aggregate market value at the
time of the Initiating Holder's request of at least five million United States
dollars ($5,000,000). Upon receiving a request for a Demand Registration, the
Company will, as provided in this Section 2, use its commercially reasonable
best efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been so requested by the Initiating
Holder to register; provided, however, that the Company shall not be required to
effect any registration under this Section 2 within a period of one hundred and
eighty (180) days following the effective date of a previous registration.
(b) Limitation on Demand Registrations. Notwithstanding anything to
the contrary set forth in Section 2(a) but subject to Section 7, the Company
shall not be obligated to file a Registration Statement with respect to more
than one (1) Demand Registration under Section 2(a).
(c) Effective Demand Registration. A registration shall not constitute
a Demand Registration until the Registration Statement has become effective and
remains continuously effective for the lesser of (i) the period during which all
Registrable Securities registered in the Demand Registration are sold and (ii)
one hundred and eighty (180) days; provided, however, that (1) a registration
shall not constitute a Demand Registration if (x) after such Demand Registration
has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of the Securities and Exchange
Commission or
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other governmental agency or court for any reason not attributable to the
Holders and such interference is not thereafter eliminated or (y) the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such Demand Registration are not satisfied or waived, other than
by reason of a failure by the Holders and (2) a registration shall constitute a
Demand Registration if the Registration Statement is abandoned by the Holders
prior to the effective date for reasons other than a material adverse event
affecting the Company.
(d) Underwriting Procedures. If the Initiating Holder so elects, the
offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of a firm commitment underwritten offering and the managing underwriter
or underwriters selected for such offering shall be the Approved Underwriter(s)
(as defined herein) selected in accordance with Section 2(e). With respect to
any firm commitment underwritten offering, the Company shall enter into a
reasonable and customary underwriting agreement with the Approved Underwriter.
If the Approved Underwriter advises the Company that marketing factors require a
limitation of the number of shares to be underwritten, then the number of shares
that may be included in such offering shall be allocated as follows: (i) first,
the Initiating Holder and the other Holders shall be permitted to include all
Registrable Securities to be registered thereby; and (ii) second, the Company
and any other shareholder exercising piggyback registration rights shall be
allowed to include such amount of Ordinary Shares as the Approved Underwriter
deems appropriate; provided, however, that the amount of Ordinary Shares to be
sold by the Company and any other shareholders under clause (ii) and intended to
be included in such offering shall be reduced in its entirety prior to any
reduction of the number of Holders' Registrable Securities.
(e) Selection of Underwriters. If any Demand Registration is in the
form of a firm commitment underwritten offering, the Initiating Holder shall
select and obtain one or more investment banking firms of national reputation to
act as the managing underwriters of the offering (collectively, the "APPROVED
UNDERWRITER"); provided, however, that the Approved Underwriter shall, in any
case, be acceptable to the Company in its reasonable judgment.
3. Incidental Registration. If the Company shall determine to register any
Ordinary Shares, or any securities convertible into or exchangeable or
exercisable for Ordinary Shares, for its own account or for the account of any
shareholder (other than (i) a registration relating solely to the sale of
securities to participants in a Company benefit plan in Form S-8 or any
replacement, (ii) a registration relating to a corporate reorganization or other
transaction described under Rule 145 of the Securities Act, or (iii) other
transaction registrable on Form F-4 or a registration on any form that does not
permit secondary sales or does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of the Registrable Securities), the Holders shall be entitled to include
Registrable Securities in such registration (and related underwritten offering,
if any) (each, an "INCIDENTAL REGISTRATION") on the following terms and
conditions:
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(a) The Company shall promptly give written notice of such
determination to the Holders, and the Holders shall have the right to request,
by written notice given to the Company within fourteen (14) days of the receipt
by the Holders of such notice of determination, that a specific number of
Registrable Securities held by the Holders be included in such Registration
Statement;
(c) If the proposed registration relates to a firm commitment
underwritten offering, the notice called for by Section 3(a) shall specify the
name of the managing underwriter for such offering and the number of securities
to be registered for the account of the Company and for the account of any other
shareholder of the Company;
(d) If the proposed registration relates to a firm commitment
underwritten offering, the Holders must (i) sell all or a portion of their
Registrable Securities on the same basis provided in the underwriting
arrangements approved by the Company and (ii) complete and execute all
questionnaires, powers of attorney, customary indemnities, lock up agreements,
underwriting agreements and other documents on the same basis as other similarly
situated selling shareholders (or, if there are no other selling shareholders,
as would be customary in a transaction of this type) required under the terms of
such underwriting arrangements or by the SEC;
(e) If the managing underwriter for the underwritten offering under
the proposed registration to be made by the Company determines that marketing
factors require a limitation of the number of shares to be underwritten, the
number of shares that may be included in such registration in such offering
shall be allocated as follows: (i) first, the Company or the selling shareholder
exercising demand registration rights, as the case may be, shall be permitted to
include all Ordinary Shares to be registered thereby; and (ii) second, the
Holders and any other selling shareholder exercising piggyback registration
rights shall be allowed to include such amount of Registrable Securities as the
managing underwriter(s) deems appropriate (on a pro rata basis with one another
but only to the extent that such pro rata basis applies to the number of
Ordinary Shares still retained at the time of such cutback);
(f) Holders shall have the right to withdraw their Registrable
Securities from the Registration Statement at any time prior to the effective
date thereof, but if the same relates to an underwritten offering, they may only
do so after the initial filing thereof during the time period and on the terms
deemed appropriate by the underwriters for such underwritten offering; and
(g) The Company shall have the right to terminate or withdraw any
registration statement filing under this Section 3 prior to the effective date
of such registration for any reason without liability to the Holders as a result
thereof, whether or not the Holders elected to include such securities in such
registration.
4. Form F-3 Registration.
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(a) At any time following the consummation of the IPO, the Initiating
Holder shall, subject to the provisions of this Section 4, be entitled to
request that the Company effect a registration of the Initiating Holder's
Registrable Securities and the Registrable Securities of other Holders wishing
to participate, comprising at least 100,000 Ordinary Shares, on Form F-3 as
shall be specified in such request (a "FORM F-3 REGISTRATION").
(b) As soon as practicable after receipt of any written request
pursuant to Section 4(a), the Company shall use commercially reasonable best
efforts to file a Form F-3 Registration Statement covering the Registrable
Securities and shall effect such registration as would permit or facilitate the
sale and distribution of all or such portion of the Initiating Holder's and
other participating Holders' Registrable Securities as are specified in such
request.
(c) At all times during which the Company is subject to the reporting
requirements of the Exchange Act, the Company shall use its commercially
reasonable best efforts to make registrations on Form F-3 available for the sale
of Registrable Securities.
(d) If the Initiating Holder so elects, the offering of Registrable
Securities pursuant to a Form F-3 Registration shall involve a managing
underwriter or underwriters selected for such offering by the Initiating Holder;
provided, however, that such managing underwriter shall be acceptable to the
Company in its reasonable judgment. If the managing underwriter advises the
Company that marketing factors require a limitation of the number of shares to
be underwritten, then the number of shares that may be included in such
registration in such offering shall be allocated as follows: (i) first, the
Holders shall be permitted to include all Registrable Securities to be
registered thereby; and (ii) second, the Company and any other shareholder
exercising piggyback registration rights shall be allowed to include such amount
of Ordinary Shares as the managing underwriter deems appropriate; provided,
however, that, the amount of Ordinary Shares to be sold by the Company and any
other shareholders under clause (ii) and intended to be included in such
offering shall be reduced in its entirety prior to any reduction of the number
of the Holders' Registrable Securities.
(e) The Holders shall have the right to withdraw their Registrable
Securities from the Registration Statement at any time prior to the effective
date thereof, but if the same relates to an underwritten offering, they may only
do so after the initial filing thereof during the time period and on terms
deemed appropriate by the underwriters for such underwritten offering.
(f) Notwithstanding anything to the contrary in Section 4(a) but
subject to Section 8, the Company shall not be obligated to file a Registration
Statement with respect to a Form F-3 Registration within a period of one hundred
and eighty (180) days following the effective date of a previous registration.
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(g) Notwithstanding anything to the contrary set forth in Section 4,
the Company shall not be obligated to file a Registration Statement with respect
to more than three (3) F-3 Registrations under Section 4.
5. Blockage Periods. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated to file any Registration Statement under
Section 2 or Section 4, and shall be permitted to suspend its use, at any time
that the Company's Board of Directors determines in good faith, as certified to
the Holders in writing by the Company's President or Chief Executive Officer,
that the filing or use of such a Registration Statement would be significantly
detrimental to the Company. The Company may decline to file, or may suspend the
use of, any Registration Statement for this reason only once in any twelve (12)
month period and only for a maximum period of one hundred and twenty (120) days
at any one time.
5A. Right to Delay Demand Registration. If, at any time when a Demand is
received by the Company, (i) the Company has undertaken to prepare a
registration statement which is intended to be filed within one hundred and
twenty (120) days from the date the Demand was received, or (ii) the Company's
Board of Directors determines in good faith, as certified to the Holders in
writing by the Company's President or Chief Executive Officer, that the filing
or use of such a Registration Statement in response to such Demand Registration
either (A) would require the Company to make a public disclosure of information
which would have a material adverse effect upon the Company or would be
significantly disadvantageous to the Company or its shareholders or (B) could
interfere with, or would require the Company to accelerate public disclosure of,
any material financing, acquisition, disposition, corporate reorganization or
other material transaction involving the Company or its subsidiaries, then the
Company may, at its sole option, cause the registration requested pursuant to
the Demand to be delayed for a period not in excess of one hundred and twenty
(120) days from the effective date of the registration statement which the
Company is preparing or from the date such Demand was received (such right to
delay a request pursuant to clause (ii) if this Section 5A may be exercised by
the Company not more than twice in any calendar year).
6. Restrictions on Public Sale by the Holders of Registrable Securities. If
requested by the managing underwriter(s) of an underwritten public offering, the
Holders will not effect any public sale or distribution of securities of the
same class (or securities exchangeable or exercisable for or convertible into
securities of the same class) as the securities included in such offering
(including, but not limited to, a sale pursuant to Rule 144 of the Securities
Act) during the 10 day period prior to and the one hundred and eighty (180) day
period beginning on the effective date of, such offering (the "Lock-up Period").
Notwithstanding the foregoing, if (1) during the last seventeen (17) days of the
Lock-up Period the Company issues an earnings release or material news of a
material event relating to the Company occurs or (2) prior to the expiration of
the Lock-up Period, the Company announces that it will release earnings results
during the seventeen (17) day period beginning on the last day of the Lock-up
Period, then the Lock-up Period shall continue to
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apply until the expiration of the seventeen (17) day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
7. Registration Procedures. In connection with the Company's registration
obligations pursuant to Sections 2 and 3 hereof, the Company will use its
commercially reasonable best efforts to effect such registration to permit the
sale of the Registrable Securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company will act as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its commercially reasonable best
efforts to cause such Registration Statement to become effective and with
respect to a registration, pursuant to Section 2 only, shall before filing any
Registration Statement or any amendments or supplements thereto, furnish to the
Holders and its counsel, copies of all such documents proposed to be filed at
least five (5) days prior thereto;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement as may be necessary to
comply with the provisions of the Securities Act and the rules and regulations
thereunder with respect to the disposition of all securities covered by such
Registration Statement;
(c) promptly notify the Holders of Registrable Securities covered by
such registration statement (i) when the prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus or for additional information, (iii) of
the issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (v) of the occurrence of any event which makes any statement made in the
Registration Statement, the prospectus or any document incorporated therein by
reference untrue or which requires the making of any changes in the Registration
Statement, the prospectus or any document incorporated therein by reference in
order to make the statements therein not misleading and true in the light of the
circumstances then existing;
(d) furnish to the Holders, without charge, at least one (1) signed
copy of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(e) deliver to the Holders, without charge, such reasonable number of
conformed copies of the Registration Statement (and any post-effective amendment
thereto) and such number of copies of the prospectus (including each preliminary
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prospectus) and any amendment or supplement thereto (and any documents
incorporated by reference therein) as the Holders may reasonably request, all in
full conformity with the Securities Act; the Company consents to the use of the
prospectus or any amendment or supplement thereto by the Holders in connection
with the offer and sale of the Registrable Securities covered by the prospectus
or any amendment or supplement thereto;
(f) prior to any offering of Registrable Securities covered by a
Registration Statement, use its reasonable efforts to register or qualify or
cooperate with the Holders in connection with the registration or qualification
of such Registrable Securities for offer and sale under the securities laws or
blue sky laws of such jurisdictions as the Holders reasonably requests, and use
its commercially reasonable best efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such Registration Statement is required to be kept
effective pursuant to the terms of this Agreement; and do any and all other acts
or take steps necessary or advisable to enable the disposition in all such
jurisdictions reasonably requested by the Holders, provided that under no
circumstances shall the Company be required in connection therewith or as a
condition thereof to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(g) cooperate with the Holders and the managing underwriter or
underwriters to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold, free of any and all
restrictive legends, such certificates to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any, or
as the Holders may request;
(h) upon the occurrence of any event contemplated by Section 7(c)(v)
above, will use its reasonable efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
(i) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by each Registration Statement from and
after a date not later than the effective date of such Registration Statement;
(j) use its commercially reasonable best efforts to cause all
Registrable Securities covered by each Registration Statement to be admitted to
trading on The Nasdaq Global Market, subject to notice of issuance, prior to the
date of the first sale of such Registrable Securities pursuant to such
Registration Statement;
(k) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with the managing
underwriter(s) of such offering, in usual and customary form as approved by the
Company's Audit Committee and
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Board of Directors, and actively participate in the marketing efforts in
cooperation with the managing underwriter(s). Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement; and
(l) furnish, at the request of the Holders requesting registration of
Registrable Securities, on the date that Registrable Securities are delivered to
an underwriter for sale in connection with an underwritten registration, or, in
connection with any other registration, on the date that the registration
statement with respect to such registration becomes effective, (i) an opinion,
dated such date, of the counsel representing the Company for die purpose of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities, and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities, subject to the Holders providing information reasonably
requested by such independent certified public accountants to comply with the
rules governing delivery of such letters.
The Holders agree that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in Section 7(c)(v) hereof, the
Holders will forthwith discontinue disposition of Registrable Securities under
the prospectus related to the applicable Registration Statement until the
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by Section 7(i) hereof, or until they are advised in writing by the
Company that the use of the prospectus may be resumed. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 7 with respect to the Registrable Securities of the Holders that the
Holders shall furnish to the Company such information regarding itself and the
Registrable Securities held by it as shall be required by the Securities Act to
effect the registration of the Holders' Registrable Securities.
8. Registration Expenses. All expenses incident to any registration to be
effected hereunder (whether or not the Registration Statement is filed or
declared effective) and incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, National Association of Securities
Dealers, Inc., stock exchange and qualification fees, fees and disbursements of
the Company's counsel and of independent certified public accountants of the
Company (including the expenses of any special audit required by or incident to
such performance but excluding any Holders' legal fees unless the Holders shall
use the same counsel as the Company), expenses of the underwriters that are
customarily requested in similar circumstances by such underwriters (excluding
discounts, commissions or fees of underwriters, selling brokers, dealer managers
or similar securities industry professionals relating to the distribution of the
Registrable Securities), all such expenses being herein called "REGISTRATION
EXPENSES", will be borne by the Company. The Company will also pay its internal
expenses, the expense of any annual audit and the fees and
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expenses of any person retained by the Company.
Notwithstanding the foregoing, the Company will not be obligated to pay
Registration Expenses for more than one Demand Registration effected pursuant
to Section 2 of this Agreement. Registration Expenses incurred in connection
with Registration Statements requested under Section 2 that are not filed or
declared effective by the SEC will be paid by the Company and will not count
against such limit; provided, however, if such Registration Statement not being
filed or declared effective is the result of the actions of the Holders, then
the Holders shall bear the Registration Expenses of such Demand Registration in
which case such registration shall not be counted as a Demand Registration under
Section 2. In the event that the Holders bear the Registration Expenses (and
underwriting discounts and commissions and transfer taxes, if any) in connection
with any Demand Registration requested under Section 2, such Registration
Expenses shall be apportioned among the holders whose Ordinary Shares are then
being registered, on the basis of the respective amounts (by number of Ordinary
Shares) then being registered by them or on their behalf.
9. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder, its officers, directors, partners and employees
and each person who controls such Holder (within the meaning of Section 15 of
the Securities Act) from and against any and all losses, claims, damages and
liabilities (including any investigation, legal or other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) (collectively, "DAMAGES") to which
such Holder may become subject under the Securities Act, the Exchange Act or
other federal or state securities law or regulation, at common law or otherwise,
insofar as such Damages arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement, prospectus or preliminary prospectus or any amendment or supplement
thereto, (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or (iii)
any violation by the Company of the Securities Act, the Exchange Act or any
state securities or blue sky laws in connection with the Registration Statement,
prospectus or preliminary prospectus or any amendment or supplement thereto, all
provided that the Company will not be liable to such Holder to the extent that
such Damages arise from or are based upon any untrue statement or omission (x)
based upon written information furnished to the Company by such Holder expressly
for the inclusion in such Registration Statement, (y) made in any preliminary
prospectus if such Holder failed to deliver a copy of the prospectus with or
prior to the delivery of written confirmation of the sale by such Holder to the
party asserting the claim underlying such Damages and such prospectus would have
corrected such untrue statement or omission and (z) made in any prospectus if
such untrue statement or omission was corrected in an amendment or supplement to
such prospectus and such Holder failed to deliver such amendment or supplement
prior to or concurrently with the sale of Registrable
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Securities to the party asserting the claim underlying such Damages; provided,
however, that the indemnity agreement contained in this Section 9(a) shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability
or action if such settlement is effected without the consent of the Company.
(b) Indemnification by a Holder of Registrable Securities. If
Registrable Securities are sold under a prospectus which is a part of a
Registration Statement, each Holder agrees to indemnify and hold harmless the
Company, its directors and each officer who signed such Registration Statement
and each person who controls the Company (within the meaning of Section 15 of
the Securities Act) and any underwriter of the Company, under the same
circumstances as the foregoing indemnity from the Company to such Holder to the
extent that such Damages or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact that was made in the Registration Statement,
prospectus or preliminary prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with information relating to such Holder
furnished in writing to the Company by such Holder expressly for use therein,
provided that, in the case of an alleged untrue statement or omission (unless it
is ultimately determined that such alleged untrue statement is actually untrue),
the Holder shall not have any indemnification obligation unless such allegation
is the sole basis of the claim, provided further that in no event shall the
aggregate liability of such Holder exceed the amount of the gross proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation. The Company and such Holder shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as customarily furnished by such persons in
similar circumstances.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party, provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person and not of the
indemnifying party unless (1) the indemnifying party has agreed to pay such fees
or expenses, (2) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such person or (3)
in the reasonable judgment of such person and the indemnifying party, based upon
the advice of their respective counsel, a conflict of interest may exist between
such person and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing that such person
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld).
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No indemnified party will be required to consent to the entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by all claimants or plaintiffs to such indemnified party of a
release from all liability in respect to such claim or litigation. Any
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim. As used in this Section 9(c), the terms "indemnifying party",
"indemnified party" and other terms of similar import are intended to include
only the Company (and its officers, directors and control persons as set forth
above) on the one hand, and each Holder (and its officers, directors and control
persons as set forth above) on the other hand, as applicable.
(d) Contribution. If the indemnification provided for in this Section
9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, each Holder shall not be
required to contribute any amount in excess of the amount such Holder would have
been required to pay to an indemnified party if the indemnity under Section 9(b)
hereof was available. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Timing of Payments. An indemnifying party shall make payments of
all amounts required to be made pursuant to the foregoing provisions of this
Section 9 to or for the account of the indemnified party from time to time
promptly upon receipt of bills or invoices relating thereto or when otherwise
due or payable.
(f) Survival. The indemnity and contribution agreements contained in
this Section 9 shall remain in full force and effect, regardless of any
investigation made by or on behalf of a Holder, its officers, directors,
partners, attorneys, agents or any person, if any, who controls such Holder as
aforesaid, and shall survive the transfer of such Registrable Securities by
Holder.
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10. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of this
Agreement:
(a) the Company shall, with respect to a Registration Statement filed
by the Company, give the Holders, the underwriters, if any, and their respective
counsel and accountants the opportunity to participate in the preparation of
such Registration Statement (other than reports incorporated therein by
reference and lawfully and properly filed with the SEC) and each prospectus
included therein or filed with the SEC, and each amendment thereof or supplement
thereto; and
(b) the Company shall give the Holders, their underwriters, if any,
and their respective counsel and accountants such reasonable access to its books
and records and such opportunities to discuss the business of the Company with
its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of the Holders or
such underwriters, to conduct a reasonable investigation within the meaning of
Section ll(b)(3) of the Securities Act.
11. Rule 144. At all times during which the Company is subject to the
periodic reporting requirements of the Exchange Act, the Company covenants that
it will file, on a timely basis, the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, and it will take such further action as the Holders may
reasonably request (including, without limitation, compliance with the current
public information requirements of Rule 144(c) and Rule 144A under the
Securities Act), all to the extent required from time to time to enable the
Holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the conditions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such Rule may be amended from time to time, or
(iii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of the Holders, the Company will deliver to such holders a written
statement verifying that it has complied with such information requirements.
12. Information from Holder. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be requested by the Company and required to effect the registration of
such Holder's Registrable Securities.
13. Assignment of Rights. A Holder may assign its rights under the
Agreement to its Permitted Transferees or to a lawful permitted transferee of no
less than 250,000 Registrable Securities of such Holder (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations) provided that each transferee has executed this Agreement and
agreed to be bound by the terms hereof.
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14. [Reserved]
15. Notices. All notices required or permitted under the terms of this
Agreement shall be delivered in the manner called for in the SPA.
16. Successors and Assigns. Subject to Section 13, this Agreement shall
inure to the benefit of, and be binding upon the successors and permitted
assigns of the Holders. This Agreement shall inure to the benefit of and be
binding upon the Company and any corporation resulting from any merger or
consolidation of the Company with or into such corporation (in which the Company
is not the surviving corporation) or any corporation whose securities are issued
in exchange for Ordinary Shares.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
18. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and shall supersede and
preempt any prior understandings, agreements or representations, written or
oral, by or among the parties hereto with respect to the subject matter hereof.
19. No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party or its right
to exercise any such or other right, power or remedy or to demand such
compliance.
20. Headings. The Section headings in this Agreement are for convenience of
reference only and are not intended to be a part of this Agreement or to affect
the meaning or interpretations of this Agreement.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
22. Amendment. Any provision of this Agreement may be amended, waived or
modified only by a writing signed by the Company and Holders of a majority of
the Registrable Securities.
23. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Israel; provided, however, that all
matters relating to registration shall be interpreted in accordance with the
federal securities laws of the
00
Xxxxxx Xxxxxx. Any dispute arising under or with respect to this Agreement shall
be resolved exclusively in the appropriate court in Tel Aviv, Israel.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
SCOPE METALS TRADING & TECHNICAL FIMSCO, LIMITED PARTNERSHIP
SERVICES LIMITED
By: /s/ Shiloh Shmuel By: /s/ Xxxxx Xxxx, General Partner
--------------------------------- ------------------------------------
Name: SHILOH SHMUEL Name XXXXX XXXX
Title: C.E.O Title Director
/s/ Xxx Xxxxx
---------------------------------
C.F.O
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