Exhibit 4.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of May 14, 2001 by and among (i) Havas Advertising (separately,
and together with its successors and assigns, the "Company"), a societe anonyme
duly incorporated and legally existing under the laws of the Republic of France,
and (ii) (a) Acacia ISP, S.L., a company duly incorporated and validly existing
under the laws of Spain, (b) Banco Santander Central Hispano, S.A. ("BSCH"), a
company duly incorporated and validly existing under the laws of Spain, (c)
Compania de Cartera e Inversiones S.A., a limited liability company duly
incorporated and legally existing under the laws of Spain, (d) Deya S.A., a
limited liability company duly incorporated and legally existing under the laws
of Luxembourg and (e) Xx. Xxxx Xxxxxxxx-Xxxxxx Xxxxx, Xxx. Xxxxx Xxxxx Xxxxx
Xxxxxxx, Mrs. Xxxxxxxx Xxxxxxxx-Xxxxxx Xxxxx and Mrs. Xxxxxx Xxxxxxxx-Xxxxxx
Xxxxx, each an individual of Spanish nationality, all parties to that certain
Agreement to Contribute dated as of January 20, 2001 (the "Contribution
Agreement") (each such entity, separately, a "MPG Founder" and collectively, the
"MPG Founders"), each duly represented as described in Schedule I attached
hereto. Unless otherwise defined, capitalized terms used herein shall have the
respective meanings ascribed to them in the Contribution Agreement.
WHEREAS, pursuant to the Contribution Agreement, the MPG Founders
have agreed to sell (by means of a contribution in kind) (the "Contribution")
their shares of Media Planning Group, S.A. ("MPG") to the Company in exchange
for 28,800,000 ordinary shares, nominal value of 0.40 per share, of the Company
(the "New HA Shares") and cash;
WHEREAS, the Company, BSCH and MPG are parties to the Amendment to
"Contrato entre Socios" dated January 20, 2001 pursuant to which BSCH has the
right to swap certain shares it holds in Arena Communications Network, S.L. for
378,182 ordinary shares of the Company (the "Put HA Shares");
WHEREAS, in connection with the Contribution, the Company has agreed
to grant to the MPG Founders the Registration Rights (as defined in Section 1
hereof) with respect to the Registrable Securities (as defined in Section 4.11
hereof);
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
Section 1. Registration Rights
Subject to the terms and conditions set forth herein, each Holder (as
defined in Section 4.11 hereof) shall be entitled to offer and sell the
Registrable Securities pursuant to a registration under the Securities Act of
1933, as amended (the "Securities Act") on a Registration Statement (as defined
in Section 4.11 hereof) as provided in this Agreement (the "Registration
Rights").
For the purposes of this Agreement, any Registrable Securities shall
cease to be Registrable Securities on the earlier of (i) the date on which the
Holder holding such Registrable Securities shall have sold such Registrable
Securities pursuant to an effective Registration Statement, (ii) the date on
which such Registrable Securities shall have been distributed to the public in
accordance with Rule 144 or Regulation S under the Securities Act, and (iii) in
the case of Shelf Registration (as defined in Section 1.2(a) hereof) as
contemplated by Section 1.2 hereof, the date on which the Holder holding such
shares is no longer an "affiliate" of the Company as defined in Rule 144 under
the Securities Act.
1.1 Demand Registration Rights.
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(a) Demand Registration Statement. Subject to Section 1.3, if
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any Holder or Holders make a written request pursuant to Section 1.1(b) for the
registration of Registrable Securities pursuant to the Securities Act in
connection with an underwritten public offering (a "Demand Registration"), then
the Company shall cause a Registration Statement covering such Registrable
Securities to be filed with the Securities and Exchange Commission ("SEC")
within a reasonable period of time (including reasonable time required to
prepare any necessary financial statements for inclusion therein) after such
request; provided that the reasonably anticipated aggregate price to the public
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of the Registrable Securities to be offered pursuant to such underwritten public
offering is equal to at least seventy-five million Euro (75,000,000) at the time
of such request and at the time of any withdrawal pursuant to Section 1.1(b)
below; provided, further, that the Company shall not be required to effect any
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such Demand Registration (i) within one hundred fifty (150) days following a
Piggyback Registration as contemplated by Section 1.4 hereof so long as the
number of Registrable Securities requested to be included in such Piggyback
Registration by any Holder was not cut back under Section 1.7(d) below or (ii)
so long as such Demand Registration has been suspended or postponed in
accordance with Section 1.3. Subject to Section 1.1(b) hereof, the Company shall
not be obligated to effect more than a total of four (4) such Demand
Registrations during the Effective Period (as defined in Section 4.11 hereof)
and not more than one (1) such Demand Registration in any twelve (12) month
period; provided, however, that a Demand Registration requested pursuant to this
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Section 1.1(a) shall not be deemed to have been effected unless (x) it has been
declared effective by the SEC or become effective in accordance with the
Securities Act and the rules and regulations thereunder and (y) it has remained
effective for the period of distribution contemplated therein. For the
avoidance of doubt and subject to this Agreement, any request by a Holder or
Holders that the Company effect the Shelf Registration (as defined in Section
1.2(a) hereof) in connection with an underwritten public offering shall count as
a Demand Registration, but if the request by a Holder or Holders that the
Company effect the Shelf Registration is not in connection with an underwritten
public offering, such request shall not count as a Demand Registration.
The Registration Statement filed in connection with a Demand
Registration shall be on the appropriate form, and shall otherwise comply as to
form in all material respects with the requirements of the Securities Act and
the rules and regulations promulgated thereunder. The Company will use its
reasonable best efforts to cause such Registration Statement to be declared
effective by the SEC as promptly as practicable and shall promptly notify each
Holder registering Registrable Securities thereunder when such Registration
Statement has become effective. From time to time and upon the reasonable
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request of any Holder registering Registrable Securities thereunder or of the
Representative (as defined in Section 4.11 hereof), if any, the Company shall
promptly notify such Holder or the Representative, as the case may be, of the
anticipated date of effectiveness of such Registration Statement.
Notwithstanding anything to the contrary in this Agreement, the
Company shall be permitted to satisfy its obligations under this Section 1.1 by
amending (to the extent permitted by applicable law) any Registration Statement
(including any Shelf Registration) previously filed by the Company under the
Securities Act so that such Registration Statement (as amended) shall permit the
disposition in an underwritten public offering of all of the Registrable
Securities for which a demand for registration has been made under this Section
1.1. If the Company shall so amend a previously filed Registration Statement,
it shall be deemed to have effected a Demand Registration for purposes of this
Section 1.1; provided that such Registration Statement (x) is declared effective
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by the SEC or becomes effective in accordance with the Securities Act and the
rules and regulations thereunder and (y) remains effective for the period of
distribution contemplated therein.
(b) Demand Registration Notices. During the Effective Period and
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subject to Section 1.3, if any Holder or Holders desire to offer and sell its or
their Registrable Securities pursuant to a Demand Registration as described in
Section 1.1(a), such Holder or Holders (the "Initiating Demand Holders") shall
deliver to the Company, through the Representative, if any, a written notice
that it is or they are exercising the Registration Rights set forth in Section
1.1(a) (a "Demand Registration Notice"). Any such Demand Registration Notice
shall in any event be subject to revocation or withdrawal by such Initiating
Demand Holders, acting through the Representative, if any, by delivery of a
subsequent written notice delivered to the Company by no later than the tenth
(10/th/) day prior to the anticipated effectiveness of the Registration
Statement; provided, however, that a revoked or withdrawn Demand Registration
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Notice (other than the first two (2) such revoked or withdrawn Demand
Registration Notices, provided the Initiating Demand Holders shall have paid all
of the Company's out-of-pocket expenses incurred in connection therewith) shall
be treated the same as a Demand Registration Notice that is not revoked or
withdrawn for purposes of calculating the remaining number of Demand
Registrations to which the Holders are entitled under Section 1.1(a)(iii) above.
Any Demand Registration Notice that is revoked or withdrawn following its
postponement and/or suspension by the Company pursuant to Section 1.3 hereof
shall not be counted as a Demand Registration Notice for purposes of calculating
the remaining number of Demand Registrations to which the Holders are entitled
under Section 1.1(a)(iii) above; provided the Demand Registration Notice is
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revoked or withdrawn by no later than the tenth (10/th/) day following the
termination of such postponement or suspension.
Each Demand Registration Notice shall specify the number of
Registrable Securities which the Initiating Demand Holders desire to offer and
sell, the anticipated per share price range for such offering, and the lead
managing underwriter selected by the Initiating Demand Holders as contemplated
by Section 1.6.
Subject to the last sentence of this Section 1.1(b), upon receipt of a
Demand Registration Notice, the Company shall, within fifteen (15) days, give
written
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notice to the other Holders of the Company's receipt of the Demand Registration
Notice and provide them with a copy of such Demand Registration Notice. Within
seven (7) days of receipt of such notice, any other Holder desiring to offer and
sell any of its Registrable Securities in such an offering of the type described
in the Demand Registration Notice shall give written notice of such desire to
each of the Company, the Initiating Demand Holders, and the lead managing
underwriter that has been selected, specifying the number of Registrable
Securities which such Holder desires to offer and sell. The Representative may
deliver a Demand Registration Notice containing such information on behalf of
all Holders desiring to offer and sell Registrable Securities pursuant to such
Demand Registration, in which case the Company shall not be obligated to give
written notice of such Demand Registration Notice to the other Holders, the
other Holders shall not be obligated to give the Company such notice of their
desire to so offer and sell, and the relevant other registration procedures
shall proceed without regard to such fifteen (15) and seven (7) day periods.
1.2 Shelf Registration Rights.
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(a) Shelf Registration Statement. In addition to the demand
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Registration Rights contained in Section 1.1 hereof and subject to Section 1.3,
so long as the Company is permitted to use SEC Form F-3, if any Holder or
Holders make a written request pursuant to Section 1.2(b) for the registration
of Registrable Securities in connection with an offering to be made on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act (the "Shelf
Registration"), then the Company shall cause a Registration Statement covering
such Registrable Securities to be filed with the SEC within a reasonable period
of time (including reasonable time required to prepare any necessary financial
statements for inclusion therein) after such request; provided, that (i) the
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Company shall not be required to effect any such Shelf Registration within one
hundred fifty (150) days following a Piggyback Registration as contemplated by
Section 1.4 hereof so long as the number of Registrable Securities requested to
be included in such Piggyback Registration by any Holder was not cut back under
Section 1.7(d), (ii) the Company shall not be obligated to effect such Shelf
Registration for so long as such Shelf Registration has been suspended or
postponed as contemplated by Section 1.3, and (iii) the Company shall not be
obligated to effect any more than one (1) such Shelf Registration during the
Effective Period, except that any Shelf Registration which is suspended by the
Company pursuant to Section 1.3 hereof shall not be counted as a request for
Shelf Registration unless such Shelf Registration is completed and declared
effective following the termination of such suspension. Such Registration
Statement shall be on SEC Form F-3 or the equivalent form then in use, and shall
otherwise comply as to form in all material respects with the requirements of
the Securities Act and the rules and regulations promulgated thereunder,
permitting registration of such Registrable Securities for resale by any of the
Holders in the manner or manners designated by them.
The Company shall use its reasonable best efforts to cause the
Registration Statement in connection with the Shelf Registration to be declared
effective by the SEC as promptly as practicable and shall notify each Holder
registering Registrable Securities thereunder when such Registration Statement
has become effective. From time to time and upon the reasonable request of any
Holder registering Registrable Securities thereunder or of the Representative,
the Company shall promptly notify such Holder or the
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Representative, as the case may be, of the anticipated date of effectiveness of
such Registration Statement. The Company agrees (subject to Section 1.3 hereof)
to use its reasonable best efforts to keep the Registration Statement
continually updated and effective (including the preparation and filing of any
amendments and supplements necessary for that purpose) during the Effective
Period. If the Registration Statement ceases to be effective for any reason at
any time during the Effective Period (other than because of the sale of all of
the securities registered thereunder or as permitted by Section 1.3 hereof), the
Company shall use its reasonable best efforts to cause such Registration
Statement to become effective, including, if necessary, obtaining the prompt
withdrawal of any order suspending the effectiveness thereof.
(b) Shelf Registration Notices. During the Effective Period and
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subject to Section 1.3, if any Holder or Holders desire to offer and sell its or
their Registrable Securities pursuant to a Shelf Registration as described in
Section 1.2(a), such Holder or Holders (the "Initiating Shelf Holders") shall
deliver to the Company a written notice that they are exercising the
Registration Rights set forth in Section 1.2(a) (a "Shelf Registration Notice"),
which notice shall specify the number of Registrable Securities which the
Initiating Shelf Holders desire to offer and sell pursuant to the Shelf
Registration and the desired manner or manners of such offers and sales.
Subject to the last sentence of this paragraph, upon receipt of a
Shelf Registration Notice, the Company shall within fifteen (15) days give
written notice to the other Holders of the Company's receipt of the Shelf
Registration Notice and provide such other Holders with a copy of the Shelf
Registration Notice. Within seven (7) days of receipt of such notice, any other
Holder desiring to offer and sell any of its Registrable Securities pursuant to
the Shelf Registration shall give written notice of such desire to the Company
specifying the number of Registrable Securities which such Holder desires to
offer and sell. The Representative may deliver a Shelf Registration Notice
containing such information on behalf of all Holders desiring to offer and sell
Registrable Securities pursuant to the Shelf Registration, in which case the
Company shall not be obligated to give written notice of such Shelf Registration
Notice to the other Holders, the other Holders shall not be obligated to give
the Company such notice of their desire to so offer and sell, and the relevant
other registration procedures shall proceed without regard to such fifteen (15)
and seven (7) day periods.
All offers and sales by each Holder under the Registration Statement
referred to in this Section 1.2 shall be completed within the Effective Period,
and upon expiration of such period no Holder shall be entitled to offer or sell
any Registrable Securities under such Registration Statement and the Company
shall be entitled to terminate the effectiveness thereof; provided that if,
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during the last one hundred eighty (180) days of the Effective Period, any
Holder or Holders notify the Company of their intention to sell Registrable
Securities having a reasonably anticipated aggregate sale price of at least
seven million five hundred thousand dollars ($7,500,000) under such Registration
Statement, and if such sale cannot be consummated within the Effective Period
because sales under such Registration Statement are suspended by the Company
pursuant to Section 1.3, then (i) such Holder or Holders shall be entitled to
complete such sale (but not other sales) under such Registration Statement after
the Effective Period during a period (the "Shelf Extension Period") ending on
the earlier of (A) the completion of
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such sale or (B) the one hundred eightieth (180/th/) day following termination
of such suspension pursuant to Section 1.3, and (ii) the Company shall not be
entitled to terminate the effectiveness of such Registration Statement with
respect to such Holder or Holders until the expiration of the Shelf Extension
Period. If directed by the Company, each Holder shall return all undistributed
copies of the Prospectus in its possession upon the expiration of the Effective
Period, or in the case of any Holder permitted to complete a sale after the
Effective Period, upon the expiration of the Shelf Extension Period.
1.3 Suspension of Offering; Lock-Ups.
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(a) At any time during the Effective Period, if the Company
determines in good faith that the offering and distribution of Registrable
Securities (i) would require disclosure of material non-public information that
the executive committee of the Company in good faith has deemed advisable to
keep confidential and the nondisclosure of which in the Registration Statement
would reasonably be expected to cause the Registration Statement to fail to
comply with applicable disclosure requirements, or (ii) would materially impede,
delay, interfere with or otherwise materially adversely affect the negotiation
or consummation of a financing, registration of securities, acquisition,
corporate reorganization or other significant transaction involving the Company
or any its subsidiaries that is pending or the subject of firm plans, then the
Company may elect to postpone the filing or effectiveness of a Registration
Statement or suspend the offering of Registrable Securities pursuant to an
effective Registration Statement for a period of time not to exceed ninety (90)
days with respect to matters covered by (i) above or one hundred eighty (180)
days with respect to matter covered by (ii) above; provided, however, that the
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Company shall not be so entitled to postpone the filing or effectiveness of a
Registration Statement or suspend the offering of Registrable Securities
pursuant to an effective Registration Statement at any time within one hundred
twenty (120) days following the termination of any postponements or suspensions
pursuant to (i) above or one hundred eighty (180) days following the termination
of any postponement or suspensions pursuant to (ii) above; and provided,
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further, that any such postponement or suspension pursuant to this Section 1.3
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shall not extend more than seven (7) days after the conditions permitting a
postponement on suspension under (i) on (ii) above, as applicable, cease to
exist. The Company shall provide written notice to the Holders promptly upon any
such cessation.
Promptly after making an election pursuant to this Section 1.3(a) to
suspend offers and sales under an effective Registration Statement, the Company
shall give written notice thereof (a "Suspension Notice") to all applicable
Holders, upon receipt of which each Holder agrees that it will immediately
discontinue offers and sales of the Registrable Securities under the
Registration Statement until (w) in the case of a Suspension Notice delivered
pursuant to clause (i) above, such Holder receives copies of a supplemented or
amended Prospectus that corrects the misstatement(s) or omission(s) referred to
above and receives notice that any post-effective amendment has become effective
or (x) in the case of a Suspension Notice delivered pursuant to clause (ii)
above, such Holder receives a subsequent notice from the Company that revokes or
otherwise withdraws such Suspension Notice. If so directed by the Company, each
Holder shall deliver to the Company all copies of the current Prospectus
covering the Registrable Securities at the time of receipt of a Suspension
Notice.
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Promptly after making a determination to postpone the filing or
effectiveness of a Registration Statement, the Company shall give written notice
thereof (a "Postponement Notice") to all applicable Holders, and the lead
managing underwriter, in the case of a Registration Statement effecting an
underwritten offering.
(b) During the Effective Period, if requested by the lead managing
underwriter of any offering of securities of the Company, each Holder shall
enter into a lock-up agreement with the applicable underwriters pursuant to
which such Holder will agree not to offer, sell, pledge or otherwise dispose of
or transfer any ordinary shares (or American Depositary Shares representing
ordinary shares) of the Company held by such Holder or such Holder's affiliates,
during any reasonable period established by such lead managing underwriter, but
not to exceed ninety (90) days from the effective date of such offering, in
connection with any sale or distribution by the Company of ordinary shares (or
American Depositary Shares representing ordinary shares) of the Company;
provided, however, that all executive officers and directors of the Company
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shall also have agreed to enter into substantially similar lock-up arrangements
if so requested by such lead managing underwriter.
1.4 Piggyback Registration.
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(a) If, at any time during the Effective Period, the Company
proposes to register any of its ordinary shares (or American Depository Shares
representing ordinary shares) for sale under the Securities Act in an
underwritten public offering, except as otherwise described in Sections 1.1 and
1.2 hereof, whether or not for sale for the Company's own account, on a form and
in a manner that would also permit registration of Registrable Securities for
sale under the Securities Act, the Company shall give written notice of the
Company's intention to effect such registration to each Holder at least twenty
(20) days prior to the anticipated filing of such registration statement,
setting forth the date on which the Company proposes to file such registration
statement and advising each such Holder of its right to have Registrable
Securities included in such registration. If, within ten (10) days after the
giving of such notice by the Company, any such Holder shall deliver to the
Company a written request specifying the number of Registrable Securities such
Holder desires to offer and sell, and the intended disposition thereof, the
Company shall use its reasonable best efforts to effect the registration of all
such Registrable Securities that the Company has been requested to register;
provided:
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(i) if, at any time after giving written notice of its
intention to register any securities and prior to the effectiveness of
the Registration Statement filed in connection therewith, the Company
shall determine for any reason not to register any such securities,
the Company may, at its election, give written notice of such
determination to each Holder who made a request as provided in this
Section 1.4, and thereupon the Company shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligations under Section 1.5
hereunder), without prejudice, however, to the Registration Rights of
Holders generally under this Agreement;
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(ii) all Holders requesting to be included in the
Company's registration must (A) sell their Registrable Securities to
the underwriters of the offering on the terms and conditions provided
in the underwriting arrangements approved by the Company, and (B)
complete and execute all customary questionnaires, powers of attorney,
custody arrangements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements; and
(iii) if, at any time after a Holder gives written notice
of its intention to register any Registrable Securities pursuant to
this Section 1.4, a Registration Statement is not declared effective
within thirty (30) days of such written notice, such Holder shall, for
a period of five (5) days following such thirty (30) day period, be
entitled to withdraw such notice of its intention.
All registrations requested by any Holder or Holders pursuant to this Section
1.4 are referred to herein as "Piggyback Registrations."
(b) The Company shall not be obligated to effect any
registration of Registrable Securities under this Section 1.4 as a result of a
registration of ordinary shares of the Company pursuant to a registration
statement (i) filed in connection with an offer, sale or other disposition of
securities solely to employees of the Company or any subsidiary pursuant to an
employee or similar benefit plan, (ii) relating to a merger, acquisition or
other transaction of the type described in Rule 145 under the Securities Act or
a comparable or successor rule (other than registrations and sales of ordinary
shares of the Company for cash in connection with any such merger, acquisition
or other transaction), or (iii) in connection with an exchange offer or an
offering of securities solely to existing stockholders of the Company or
dividend reinvestment plans.
1.5 Expenses. The Company shall pay all out-of-pocket expenses
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incident to the performance by it of its registration obligations under this
Section 1, including (i) all stock exchange, SEC registration, listing and
filing fees, (ii) all expenses incurred in connection with the preparation,
printing and distribution of the Registration Statement and Prospectus and any
other document or amendment thereto and the mailing and delivery of copies
thereof to the Holders and any underwriters and dealers, (iii) fees and
disbursements of counsel for the Company and of the independent public
accountants and other experts of the Company; (iv) the cost of printing or
producing any agreement(s) among underwriters, underwriting agreement(s) and
blue sky or legal investment memoranda, any selling agreements and any other
documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of; (v) all expenses in connection with the
qualification of Registrable Securities to be disposed of for offering and sale
under state securities laws, including the reasonable fees and disbursements of
counsel for the underwriters, if any, in connection with such qualification and
in connection with any blue sky and legal investment surveys (but not for any
other fees or disbursements of counsel for the underwriters); (vi) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of Registrable Securities to
be disposed of; (vii) fees and expenses incurred in connection with the listing
of Registrable Securities on each U.S. securities exchange or
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quotation system on which the ordinary shares of the Company (or American
Depositary Shares representing the ordinary shares of the Company) are then
listed; and (viii) fees and expenses incurred in connection with any investor
road shows. Any Holder offering and selling Registrable Securities hereby shall
only be responsible for the payment of (a) any underwriting discounts or
commissions, brokerage and sales commissions, and fees and disbursements of such
Holder's counsel (other than the reasonable fees and disbursements, which in any
event shall not exceed US$20,000, relating to the delivery, if any, by the
Holders of any "disclosure letter" under U.S. federal securities laws, which
shall be borne by the Company), and any transfer taxes relating to the sale or
disposition of the Registrable Securities, and (b) any out-of-pocket expenses
incurred by the Company in connection with any revoked or withdrawn Demand
Registration unless the Initiating Demand Holders thereof elect to have such
revoked or withdrawn Demand Registration count as a Demand Registration under
Section 1.1 hereof.
1.6 Selection of Underwriters. If Registrable Securities are being
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offered and sold pursuant to a Demand Registration, the Initiating Demand
Holders shall have the right to select the lead managing underwriter of the
offering, which shall be an investment banking firm of nationally recognized
standing in the United States reasonably satisfactory to the Company; provided,
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however, that the Company shall have the right to select a co-managing
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underwriter or underwriters (but not a co-lead managing underwriter) for such
offering, which co-managing underwriter or underwriters shall be an investment
banking firm of nationally recognized standing in the United States reasonably
satisfactory to the Initiating Demand Holders and the lead managing underwriter;
provided, further, that (i) all of the representations and warranties by, and
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the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holders
participating in such Demand Registration, (ii) any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement shall be conditions precedent to the obligations of such Holders, and
(iii) no Holder shall be required to make any representations or warranties to
or agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, the Registrable Securities of
such Holder and such Holder's intended method of distribution and any other
representations required by law or reasonably required by the underwriters.
1.7 Registration Procedures.
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(a) If and whenever the Company is required to effect the
registration under the Securities Act of Registrable Securities as provided in
this Agreement, the Company shall:
(i) prepare and file with the SEC a Registration Statement
with respect to such Registrable Securities;
(ii) use its reasonable best efforts to register or qualify
the Registrable Securities by the time the applicable Registration
Statement is declared effective by the SEC under all applicable state
securities or "blue sky" laws of such U.S. jurisdictions as the
Holders shall reasonably request in writing and to do any and all
other acts and things which may be
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reasonably necessary or advisable to enable each Holder to consummate
the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided, however, that the Company
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shall not be required to (x) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction
where it would not otherwise be required to qualify but for the
requirements of this Section 1, (y) subject itself to taxation in any
such jurisdiction, or (z) submit to the general service of process in
any such jurisdiction;
(iii) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus as may be
necessary to keep the Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities until such time as all
Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the Holders set forth in the
Registration Statement;
(iv) furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of the
Registration Statement and of each such amendment and supplement
thereto, such number of copies of the Prospectus included in the
Registration Statement, in conformity with the requirements of the
Securities Act, such documents incorporated by reference in the
Registration Statement or Prospectus, and such other documents as the
Holders or such underwriter may reasonably request;
(v) use its reasonable best efforts to cause the
Registrable Securities to be listed on each national securities
exchange or quotation system in the U.S. on which the ordinary shares
of the Company (or American Depositary Shares representing ordinary
shares of the Company) are then listed, if such Registrable Securities
are not already so listed and if the listing of such securities is
then permitted under the rules of such exchange or quotation system;
(vi) enter into such customary agreements as shall be
reasonably requested by the Holders whose Registrable Securities are
being registered (including, in the case of an underwritten public
offering, an underwriting agreement, and the Holders, on whose behalf
Registrable Securities are to be distributed by such underwriters,
shall also be parties to any such underwriting agreement);
(vii) in the case of an underwritten offering, use its
reasonable best efforts to obtain a customary "cold comfort" letter
dated the effective date of the Registration Statement and a bring-
down thereof dated the closing date of such offering from the
Company's independent public accountants, and furnish a signed
counterpart of a customary legal opinion of outside counsel of the
Company dated the closing date of such offering, in
10
each case, in customary form and substance and addressed to the
underwriters and the Holders selling Registrable Securities in such
offering;
(viii) in the case of the Shelf Registration, provided the
aggregate price to the public of the Registrable Securities registered
in the Shelf Registration exceeds ten million U.S. dollars
($10,000,000), use its reasonable best efforts to obtain a customary
"cold comfort" letter dated the effective date of the Shelf
Registration and furnish a signed counterpart of a customary legal
opinion of outside counsel of the Company dated the effective date of
the Shelf Registration, in each case, in customary form and substance
and addressed to the Holders registering Registrable Securities in
such Shelf Registration;
(ix) in the case of an offering where the aggregate price
to the public of the Registrable Securities offered exceeds ten
million U.S. dollars ($10,000,000), make reasonably available for
inspection by one representative of the Holders designated in writing
by the Holders of a majority of the Registrable Securities being
offered, any underwriter participating in the offering, and any
attorney or other agent retained by such representative or any such
underwriter, all relevant documents and properties of the Company, and
supply all information reasonably requested by any such person, and
respond to such reasonable inquiries reasonably requested by any such
person, in each case as is customary for similar due diligence
examinations; provided, however, that such persons (other than any
-------- -------
attorney or underwriter) shall, if requested by the Company, first
agree in writing with the Company that such information shall be kept
confidential by such persons, unless (A) disclosure of such
information is required by court or administrative order, (B)
disclosure of such information is required by law (including any
disclosure requirements pursuant to federal or state securities laws
in connection with the filing of any Registration Statement or the use
of any Prospectus), (C) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard by any such person, or (D) such information becomes
available to any such person from a source other than the Company and
such source is not bound by a confidentiality obligation;
(x) notify the Holders holding Registrable Securities
covered by such Registration Statement immediately upon the happening
of any event as a result of which a Prospectus included in a
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and, subject to the provisions of Section 1.3 hereof,
at the request of the Holders promptly prepare and furnish to the
Holders as many copies of a supplement to or an amendment of such
Prospectus as the Holders reasonably request so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or
omit to state a
11
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;
(xi) make available for reasonable inspection by, or give
reasonable access to, any underwriter participating in any disposition
to be effected pursuant to the Registration Statement all pertinent
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such underwriter in connection with the offering thereunder;
(xii) otherwise use its reasonable best efforts to comply
with applicable rules and regulations of the SEC;
(xiii) in the event of the issuance of any stop order of
which the Company is aware suspending the effectiveness of the
Registration Statement, or of any order suspending or preventing the
use of any related Prospectus or suspending the qualification of any
Registrable Securities included in the Registration Statement for sale
in any jurisdiction, use its reasonable best efforts promptly to
obtain the withdrawal of such stop order or other order.
(b) In connection with any underwritten public offering of
Registrable Securities, the Company shall take such actions as are reasonably
necessary and useful, including, without limitation, instructing appropriate
members of management to be available in order to expedite and facilitate the
registration, marketing and disposition of the Registrable Securities, upon
reasonable prior notice by the lead managing underwriter of such offering. In
connection with any non-underwritten public offering of Registrable Securities
pursuant to a Registration Statement on Form F-3, the Company shall upon the
reasonable request of the Holders, take such commercially reasonable actions as
are reasonably required to expedite or facilitate disposition of such
Registrable Securities (reasonableness to be determined in light of the size of
the offering, among other things).
(c) As a condition to the Company's obligation under this
Agreement to cause a Registration Statement to be filed and Registrable
Securities of any Holder to be included therein, such Holder shall timely
provide the Company with all of the information required to be provided in the
Registration Statement with respect to such Holder pursuant to Items 507 and 508
of Regulation S-K under the Securities Act or as otherwise may reasonably be
required by the Company in connection with the Registration Statement.
(d) If a registration pursuant to Section 1 involves an
underwritten public offering and the lead managing underwriter of such offering
advises the Company (and the Initiating Demand Holders, if applicable) in
writing that, in its judgment, the number of ordinary shares (or American
Depositary Shares representing
12
ordinary shares) of the Company proposed to be included in such underwritten
public offering by the Company (or the Initiating Demand Holders, if applicable)
and the Holders exceeds the number of the Company's ordinary shares (or American
Depositary Shares representing ordinary shares) which can be sold in such
offering, so as to be likely to have a material adverse effect on the price at
which the Company (or the Initiating Demand Holders, if applicable) and the
Holders can sell their ordinary shares (or American Depositary Shares
representing ordinary shares) of the Company, then the Company will promptly so
advise each other Holder which has requested to offer and sell Registrable
Securities in the offering, and the Company (and the Initiating Demand Holders,
if applicable) and such Holders will include in such offering the number of
shares which, in the opinion of the lead managing underwriter can be sold (the
"Maximum Offering Amount"). The Maximum Offering Amount shall be allocated (i)
in an offering initiated by the Company as described in Section 1.4 hereof,
first, to the full extent of ordinary shares (or American Depositary Shares
-----
representing ordinary shares) of the Company that the Company desires to sell,
and second, if any shares remain under the Maximum Offering Amount, to each
------
Holder and to any other persons possessing similar registration rights to the
Registration Rights, pro rata in accordance with each request for inclusion made
by each such Holders and each such other person, or (ii) in an offering
initiated by Initiating Demand Holders as described in Section 1.1 hereof,
first, to the Initiating Demand Holders, to the full extent of the Registrable
-----
Securities the Initiating Demand Holders desire to sell, and second, if any
------
shares remain under the Maximum Offering Amount, to each other Holder, pro rata
in accordance with each request for inclusion made by each such other Holder,
and third, if any shares remain under the Maximum Offering Amount, to any other
-----
persons possessing similar registration rights to the Registration Rights, pro
rata in accordance with each request for inclusion made by each such other
person. In the event that the underwriting agreement executed in connection with
such offering provides for an overallotment option to be granted to the
underwriters, and if such option is exercised by the underwriters, the
allocation priority established by clause (i) or clause (ii) above, whichever is
applicable, shall govern the allocation with respect to the sale of any ordinary
shares (or American Depositary Shares representing ordinary shares) of the
Company and Registrable Securities pursuant to such exercise by the
underwriters.
(e) Each Holder shall comply with the prospectus delivery
requirements of the Securities Act in connection with the offer and sale of
Registrable Securities made by such Holder pursuant to the Registration
Statement. Upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 1.7(a)(vii) or Section 1.7(a)(ix), each
Holder of Registrable Securities shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Prospectus or Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 1.7(a)(vii) or
the withdrawal of any stop order or other order referred to in Section
1.7(a)(ix), and, if so directed by the Company, shall deliver to the Company all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities at the time of receipt of
such notice.
13
Section 2. Indemnification
2.1 Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless each Holder who participates in any offering or sale of
Registrable Securities, each person (if any) who participates as an underwriter
in any underwritten public offering and sale of Registrable Securities, and each
person, if any, who controls any Holder or such underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and their respective directors,
trustees, officers, partners, agents, employees and affiliates as follows:
(a) against any and all loss, liability, claim, damage and
expense (joint or several) and action or proceeding (whether commenced
or threatened) whatsoever ("Losses"), as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities were
registered under the Securities Act, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company, which consent will
not be unreasonably withheld; and
(c) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any Losses
or any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case whether or not a
party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (a) or (b)
above;
provided, however, that the indemnity provided pursuant to this Section 2.1 does
-------- -------
not apply to any indemnified party with respect to any Loss or expense to the
extent arising out of (i) any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by
14
such indemnified party expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
(ii) such indemnified party's use of any Prospectus after such time as the
obligations of the Company with respect to such indemnified party to keep
effective the Registration Statement of which such Prospectus forms a part has
expired, or (iii) such indemnified party's failure to deliver an amended or
supplemental Prospectus provided to it by the Company if such Loss or expense
would not have arisen had such delivery occurred.
2.2 Indemnification by Holder. Each Holder who participates in
-------------------------
an offering or sale of Registrable Securities jointly and severally with all
other Holders that are affiliates of such Holder (and, otherwise, severally and
not jointly with the other Holders) agrees to indemnify and hold harmless the
Company, each person (if any) who participates as an underwriter in any offering
and sale of Registrable Securities and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and their respective directors, trustees, officers, partners,
agents, employees and affiliates, as follows:
(a) against any and all Loss and expense whatsoever, as
incurred, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which the Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(b) against any and all Loss and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of each such Holder (which consent will not be
unreasonably withheld); and
(c) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any Loss or
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case whether or not a
party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (a) or (b)
above;
15
provided, however, that the indemnity provided pursuant to this Section 2.2
-------- -------
shall only apply with respect to any Loss or expense to the extent arising out
of (i) any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished to
the Company by each such Holder expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto), (ii) each such Holder's use of any Prospectus after such time as the
obligations of the Company with respect to such Holder to keep effective the
Registration Statement of which such Prospectus forms a part has expired, or
(iii) each such Holder's failure to deliver an amended or supplemental
Prospectus provided to it by the Company if such Loss or expense would not have
arisen had such delivery occurred; provided, further, however, that the
-------- -------
liability of each such Holder hereunder shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the net proceeds from the sale of the Registrable Securities
sold by such Holder under such Registration Statement bears to the total net
proceeds from the sale of all securities sold thereunder, but not in any event
to exceed the total proceeds received by such Holder from the sale of
Registrable Securities covered by such Registration Statement.
2.3 Conduct of Indemnification Proceedings. The indemnified party
--------------------------------------
shall give prompt notice to the indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify the indemnifying party shall not relieve it from any
liability which it may have under the indemnity agreement provided in Section
2.1 or 2.2 above, unless and to the extent the failure to give notice by the
indemnified party results in the forfeiture by the indemnifying party of
substantial rights and defenses. If the indemnifying party so elects within a
reasonable time after receipt of such notice, the indemnifying party may assume
the defense of such action or proceeding at such indemnifying party's own
expense with counsel chosen by the indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld; provided,
--------
however, that the indemnifying party will not settle any such action or
-------
proceeding without the written consent of the indemnified party (such consent
not to be unreasonably withheld) unless, as a condition to such settlement, the
indemnifying party secures the unconditional release of the indemnified party;
and provided further, that if the indemnified party reasonably determines, based
-------- -------
upon the written opinion of counsel, that a conflict of interest exists where it
is advisable for the indemnified party to be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to it which
are different from or in addition to those available to the indemnifying party,
then the indemnifying party shall not be entitled to assume such defense and the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense, provided that the indemnifying party shall not be liable for
the fees and expenses of (i) more than one counsel for all Holders of
Registrable Securities who are indemnified parties (which choice of counsel
shall be reasonably satisfactory to the Company), (ii) more than one counsel for
the underwriters or (iii) more than one counsel for the Company, in each case in
connection with any one action or separate but similar or related actions. If
the indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence, the
indemnifying party's counsel shall be entitled to conduct the indemnifying
party's defense and counsel for the indemnified party shall be entitled to
16
conduct the defense of the indemnified party, it being understood that both such
counsel will cooperate with each other to conduct the defense of such action or
proceeding as efficiently as possible. If the indemnifying party is not so
entitled to assume the defense of such action or does not assume such defense,
after having received the notice referred to in the first sentence of this
paragraph, the indemnifying party will pay the reasonable fees and expenses of
counsel for the indemnified party. In such event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of the indemnifying party (which consent will not be unreasonably withheld).
Except as expressly stated herein, if an indemnifying party is entitled to
assume, and assumes, the defense of such action or proceeding in accordance with
this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding.
2.4 Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
this Section 2 is unavailable to an indemnified party, the indemnifying party
shall contribute to the aggregate Losses and expenses of the nature contemplated
by such indemnity agreement incurred by any indemnified party, (i) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified parties on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative fault of but also the relative benefits to the
Company on the one hand and each such Holder on the other, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits to the indemnifying party and the indemnified party shall
be determined by reference to, among other things, the total proceeds received
by the indemnifying party and the indemnified party in connection with the
offering to which such losses, claims, damages, liabilities or expenses relate.
The relative fault of the indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, the indemnifying party or the indemnified party, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2.4 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 paragraph.
Notwithstanding the provisions of this Section 2.4, no Holder shall be required
to contribute any amount in excess of the amount of the total proceeds to such
Holder from sales of the Registrable Securities of such Holder under the
Registration Statement.
Notwithstanding the foregoing, 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. For purposes of this Section 2.4, each person, if
any, who controls an
17
indemnified party within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such indemnified party, and each
director of the Company, each officer of the Company who signed a Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the Company.
The indemnity agreements contained in this Section 2 shall be in
addition to any other rights (to indemnification, contribution or otherwise)
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party and shall survive the
termination of this Agreement.
Section 3. Rule 144 Compliance
With a view to making available the benefits of Rule 144 under the
Securities Act, the Company agrees and covenants that during the Effective
Period it will (i) use its reasonable best efforts to timely file with the SEC
the reports required to be filed by the Company under the Securities Act and the
Exchange Act, and (ii) furnish to each Holder of Registrable Securities
forthwith upon reasonable request a written statement by the Company as to its
compliance with the reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of Rule 144.
Section 4. Miscellaneous
4.1 Integration; Amendment; Waiver. This Agreement, together with
------------------------------
the Contribution Agreement, constitutes the entire agreement among the parties
hereto with respect to the matters set forth herein and supersedes and renders
of no force and effect all prior oral or written agreements, commitments and
understandings among the parties with respect to the matters set forth herein.
Except as otherwise expressly provided in this Agreement, no amendment,
modification, waiver or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed by the Company and the Holders of
a majority of the Registrable Securities.
4.2 Assignment; Successors and Assigns. This Agreement and the
----------------------------------
rights granted hereunder may not be transferred or assigned by a Holder without
the prior written consent of the Company; provided, however, that (i) each MPG
-------- -------
Founder may assign its rights and obligations hereunder, following at least five
(5) days prior written notice to the Company, (A) to any other MPG Founder in
connection with a transfer of the Registrable Securities to any other MPG
Founder or MPG Founders, (B) to such MPG Founder's affiliates in connection with
a transfer of the Registrable Securities to such affiliate and (C) to a 5%
Transferee (as such term is defined in the Contribution Agreement), in
connection with a transfer of the Registrable Securities to such 5% Transferee,
and (ii) each 5% Transferee may assign its rights and obligations hereunder,
following at least five (5) days prior written notice to the Company, (A) to any
other 5% Transferee, (B) to any MPG Founder and (C) to any affiliate of any MPG
Founder, if in the case of (i)(A), (B) and (C) and (ii)(A), (B) and (C) above,
such persons or entities agree in
18
writing to be bound by all of the provisions hereof (each, a "Permitted
Transferee"). This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, personal and legal
representatives, successors and, subject to this Section 4.2, Permitted
Transferees.
4.3 Benefits of this Agreement. Except to the extent provided in
--------------------------
Section 2, nothing in this Agreement, expressed or implied, is intended to
confer on any Person other than the parties hereto, the Holders and their
respective successors, heirs and legal representatives, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
4.4 Notices. All notices called for under this Agreement shall be in
-------
writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth in Section 6.5 of the Contribution Agreement, or in the
case of the Representative, to the address designated by the Representative from
time to time by notice to the Company in the manner provided in this Section
4.4, or to any other address or addressee as any party entitled to receive
notice under this Agreement shall designate, from time to time, to others in the
manner provided in this Section 4.4 for the service of notices; provided,
--------
however, that notices of a change of address shall be effective only upon
-------
receipt thereof. Any notice delivered to the party hereto to whom it is
addressed shall be deemed to have been given and received on the day it was
received; provided, however, that if such day is not a business day then the
-------- -------
notice shall be deemed to have been given and received on the business day next
following such day. Any notice sent by facsimile transmission shall be deemed
to have been given and received when sent, if sent during the normal business
hours of the recipient, and if not, then on the business day next following the
transmission.
4.5 Specific Performance. The parties hereto acknowledge that the
--------------------
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
4.6 Governing Law. This Agreement, the rights and obligations of the
-------------
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York, U.S.A.
without giving effect to the conflict of law principles thereof (other than
Section 5-1401 of the New York General Obligations Law).
4.7 Headings. Section and subsection headings contained in this
--------
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
19
4.8 Pronouns. All pronouns and any variations thereof shall be
--------
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
4.9 Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
4.10 Severability. If fulfillment of any provision of this
------------
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
4.11. Definitions. For purposes of this Agreement, the following
-----------
terms shall have the following meanings:
"affiliate" has the meaning specified in Rule 12b-2 under the Exchange
---------
Act.
"Effective Period" means, with respect to any Holder, the period
----------------
commencing on the first day following the expiration of the Lock-Up Period (as
defined in the Contribution Agreement) and ending on the earlier of (i) the
fifth anniversary of the expiration of the Lock-Up Period and (ii) the date as
of which all of the Registrable Securities of such Holder cease to be
Registrable Securities in accordance with Section 1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Holder" means each of the MPG Founders and each of their successors
------
and Permitted Transferees.
"Person" means any individual, corporation, partnership, limited
------
liability company, association, trust or other entity or organization, including
a government or a political subdivision or an agency or instrumentality thereof.
"Prospectus" means any prospectus (including, without limitation, any
----------
preliminary prospectus) included in any Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by any
Registration Statement, and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
"Registrable Securities" means, collectively, the New HA Shares, the
----------------------
Put HA Shares, any American Depositary Shares representing the foregoing, and
any securities issued or issuable with respect to such shares to any Holder by
way of a share dividend or share split or in connection with a combination of
shares, recapitalization, merger, consolidation, other reorganization or similar
event or otherwise and any securities issuable upon conversion, exercise or
exchange thereof; provided that no securities shall be
--------
20
considered Registrable Securities unless they are represented by American
Depositary Shares of the Company. Registrable securities will cease to be
Registrable Securities in accordance with Section 1.
"Registration Statement" means any registration statement of the
----------------------
Company filed pursuant to the Securities Act, including any Prospectus,
amendments and supplements to any such registration statement, including post-
effective amendments, and all exhibits and all material incorporated by
reference in any such registration statement.
"Representative" means the person who the Holders shall notify, from
--------------
time to time, the Company as their duly authorized representative for the
purposes of this Agreement.
4.12 Limitation on Registration Rights. Notwithstanding any other
---------------------------------
provisions of this Agreement to the contrary, the Company shall not be required
to register any Registrable Securities under this Agreement with respect to any
request or requests made by any Holder after the date which is the fifth
anniversary of the expiration or termination of the Lock-Up Period.
4.13 Termination. This Agreement shall terminate upon termination of
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the Contribution Agreement pursuant to Section 6.6(i) or (ii) thereof or by
mutual agreement of the parties thereto prior to the Completion Date (as defined
in the Contribution Agreement).
4.14 Consent to Jurisdiction; Submission to Process. Each of the
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Company and each Holder hereby (a) irrevocably agrees that any suit, action or
proceeding between or among the Company and any Holder or Holders, arising out
of or based upon this Agreement or the transactions contemplated hereby may be
instituted only in a competent state or federal court in the State of New York
sitting in the Borough of Manhattan in the City of New York and (b) irrevocably
waive, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
brought in such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in any inconvenient forum, and
irrevocably submits to the exclusive jurisdiction of such courts in any such
suit, action or proceeding. In furtherance of the foregoing, each Holder shall,
on or before the Completion Date (as defined in the Contribution Agreement),
irrevocably designate and appoint CT Corporation, 000 0xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or another authorized entity resident in the State of New York, as
the agent of such Holder to receive service of all process brought against such
Holder with respect to any such suit, action or proceeding in any such court in
the City and State of New York, such service being hereby acknowledged by each
Holder to be effective and binding service in every respect. On or before the
Completion Date, each Holder shall furnish to each other party a consent of CT
Corporation or such other authorized entity agreeing to act hereunder. If for
any reason CT Corporation or such other authorized entity, as the case may be,
shall resign or otherwise cease to act as such agent, each Holder hereby
irrevocably agrees to (1) immediately designate and appoint a new agent resident
in the State of New York to serve in such capacity and, in such event, such new
agent shall be deemed to be substituted for CT Corporation or such other
authorized entity, as the case may be, for all
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purposes hereof and (2) promptly deliver to each other party the written consent
of such new agent agreeing to serve in such capacity.
To the extent that the Company or any Holder has or hereafter may
acquire any immunity (sovereign or otherwise) in respect of its obligations
hereunder from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company and each Holder hereby irrevocably waives such immunity in respect of
its obligations hereunder, and, without limiting the generality of the
foregoing, agrees that the waivers set forth in this Section 4.14 shall have the
fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States and are intended to be irrevocable for purposes of such act.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
COMPANY:
HAVAS ADVERTISING S.A.
. By: ___________________________________________
Name: Xx. Xxxxxxx Xxxxxx
MPG FOUNDERS:
ACACIA ISP, S.L.
. By: ___________________________________________
Name: Xx. Xxxxxxx Xxxxx Vila
BANCO SANTANDER CENTRAL HISPANO, S.A.
. By: ___________________________________________
Name: Xx. Xxxxxxx Xxxxxxxx Surribas
COMPANIA DE CARTERA E INVERSIONES S.A.
. By: ___________________________________________
Name: Mr. Pastor Xxxxxxxx Lago
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DEYA S.A.
. By: _____________________________________
Name: Xx. Xxxxxxx Xxxxx Xxxxx
_____________________________________________
Xx. Xxxx Xxxxxxxx-Xxxxxx Xxxxx
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Schedule I
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Havas Advertising S.A. is duly represented by Xx. Xxxxxxx Xxxxxx.
Acacia ISP, S.L. is duly represented by Xx. Xxxxxxx Xxxxx Vila.
Banco Santander Central Hispano S.A. is duly represented by Xx. Xxxxxxx Xxxxxxxx
Surribas.
Compania de Cartera e Inversiones S.A. is duly represented by Mr. Pastor
Xxxxxxxx Lago.
Deya S.A. is duly represented by Xx. Xxxxxxx Xxxxx Xxxxx.
Xxx. Xxxxx Xxxxx Xxxxx Xxxxxxx, Mrs. Xxxxxxxxx Xxxxxxxx-Xxxxxx Xxxxx and Mrs.
Xxxxxx Xxxxxxxx-Xxxxxx Xxxxx are each duly represented by Xx. Xxxx Xxxxxxxx-
Xxxxxx Xxxxx.
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