REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of October __, 2007, among XTL Biopharmaceuticals
Ltd.,
a public company limited by shares organized under the laws of the State of
Israel (the “Company”),
and
the purchasers’ signatory hereto (each such purchaser is a “Purchaser”
and
all
such purchasers are, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date hereof among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers hereby agree as follows:
1. Definitions
Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Commission”
means
the United States Securities and Exchange Commission.
“Effectiveness
Date”
means,
with respect to the Registration Statement registering for resale the
Registrable Securities, the 90th
calendar
day following the Closing Date (105th
calendar
day in the event of a full review by the Commission); provided,
however,
in the
event that the Company is notified by the Commission that the Registration
Statement will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Date as to the Registration Statement shall be
the
fifth Trading Day following the date on which the Company is so notified if
such
date precedes the dates required above.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Filing
Date”
means,
with respect to the Registration Statement registering for resale the
Registrable Securities, the 30th
day
following the Closing Date.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
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“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
all of the Shares issued
or
issuable as a result of any stock split, dividend or other distribution,
recapitalization exchange or similar event with respect to the
foregoing.
“Registration
Statement”
means
the registration statements required to be filed hereunder, including (in each
case) the Prospectus, amendments and supplements to the Registration Statement
or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be incorporated
by reference in the registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Shares”
means
the Ordinary Shares purchased by the Purchasers under the Purchase
Agreement.
2. Shelf
Registration
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(a) The
Company shall prepare and, as soon as practicable, but in no event later than
the Filing Date, file with the Commission a “Shelf” Registration Statement
covering the resale of all of the Registrable Securities for an offering to
be
made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form F-3, or other appropriate form, and shall contain (unless
otherwise directed by the Holders and except to the extent the Company
determines that modifications thereto are required under applicable law)
substantially the “Plan of Distribution” attached hereto as Exhibit
A.
Subject
to the terms of this Agreement, the Company shall use its best efforts to cause
the Registration Statement to be declared effective under the Securities Act
as
promptly as possible after the filing thereof, but in any event prior to the
Effectiveness Date, and shall use its best efforts to keep the Registration
Statement continuously effective under the Securities Act until the date which
is two years after the date that the Registration Statement is declared
effective by the Commission or such earlier date when all Registrable Securities
covered by the Registration Statement have been sold or may be sold without
volume restrictions pursuant to Rule 144(k) as determined by the counsel to
the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (the
“Effectiveness
Period”).
The
Company shall immediately notify the Holders via facsimile or email of the
effectiveness of the Registration Statement on the same day that the Company
receives notification of the effectiveness from the Commission.
(b) If:
(i)
the Registration Statement is not filed on or prior to its Filing Date (if
the
Company files the Registration Statement without affording the Holders the
opportunity to review and comment on the same as required by Section 3(b),
the
Company shall not be deemed to have satisfied clause (i)), or (ii) the Company
fails to file with the Commission a request for acceleration in accordance
with
Rule 461 promulgated under the Securities Act, within five Trading Days of
the
date that the Company is notified (orally or in writing, whichever is earlier)
by the Commission that the Registration Statement will not be “reviewed,” or not
subject to further review, or (iii) prior to the Effectiveness Date, the Company
fails to file a pre-effective amendment and otherwise respond in writing to
comments made by the Commission in respect of the Registration Statement within
ten Trading Days after the receipt of comments by or notice from the Commission
that such amendment is required in order for the Registration Statement to
be
declared effective, or (iv) the Registration Statement filed or required to
be
filed hereunder is not declared effective by the Commission by the Effectiveness
Date, or (v) after the Effectiveness Date, the Registration Statement ceases
for
any reason to remain continuously effective as to all Registrable Securities
for
which it is required to be effective, or the Holders are not permitted to
utilize the Prospectus therein to resell such Registrable Securities for ten
consecutive Trading Days or in any individual case an aggregate of fifteen
Trading Days during any twelve month period (which need not be consecutive
Trading Days) (any such failure or breach being referred to as an “Event”,
and
for purposes of clause (i) or (iv) the date on which such Event occurs, or
for
purposes of clause (ii) the date on which such five Trading Day period is
exceeded, or for purposes of clause (iii) the date which such ten Trading Day
period is exceeded, or for purposes of clause (v) the date on which such ten
or
fifteen Trading Day period, as applicable, is exceeded being referred to as
“Event
Date”),
then,
on each such Event Date and every monthly anniversary thereof until the
applicable Event is cured, the Company shall pay to each Holder an amount in
cash, as liquidated damages and not as a penalty, equal to 1.0%
per
month
of the Subscription Amount paid by such Holder pursuant to the Purchase
Agreement for Registrable Securities then held by such Holder and covered (or
to
be covered) by the Registration Statement. If the Company fails to pay any
liquidated damages pursuant to this Section in full within seven days after
the
date payable, the Company will pay interest thereon at a rate of 15%
per
annum (or such lesser maximum amount that is permitted to be paid by applicable
law) to the Holder, accruing daily from the date such liquidated damages are
due
until such amounts, plus all such interest thereon, are paid in full. The
liquidated damages pursuant to the terms hereof shall apply on a pro-rata basis
for any portion of a month prior to the cure of an Event.
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(c) The
Holders holding at least a majority of the Registrable Securities shall have
the
right to select one legal counsel to review, comment and oversee any
registration pursuant to this Section 2 (“Legal Counsel”), which shall be
XxXxxxxxx Will & Emory, or such other counsel as thereafter designated by
the holders of at least a majority of the Registrable Securities.
3. Registration
Procedures
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Permit
Legal Counsel to review and comment upon a Registration Statement or any
related
Prospectus or any amendment or supplement thereto (including any document
that
would be incorporated or deemed to be incorporated therein by reference)
at
least five Trading Days prior to its filing with the Commission and Company
shall not file any Registration Statement or any related Prospectus or any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference) in a form
to
which Legal Counsel reasonably objects in writing; provided that the liquidated
damages set forth in Section 2(b) shall not accrue as a result of such
objection. The Company shall promptly furnish to Legal Counsel, without charge,
(i) copies of any correspondence between the Commission or the staff of the
Commission, on one hand, and the Company or its representatives, on the other,
relating to any Registration Statement and (ii) upon effectiveness of any
Registration Statement, one copy of Prospectus or Prospectuses (including
each
form of prospectus) and each amendment or supplement thereto. The Company
shall
reasonably cooperate with Legal Counsel in performing the Company’s obligations
pursuant to this Section 3.
(b) Not
less
than three Trading Days prior to the filing of the Registration Statement or
any
related Prospectus or any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein by
reference), the Company shall, (i) furnish to each Holder copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of
such
Holders, and (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary
to conduct a reasonable investigation within the meaning of the Securities
Act.
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(c) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period; (ii) cause the related Prospectus to be amended or supplemented by
any
required Prospectus supplement (subject to the terms of this Agreement), and
as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond
as
promptly as reasonably possible, and in any event within ten Trading Days,
to
any comments received from the Commission with respect to the Registration
Statement or any amendment thereto and as promptly as reasonably possible
provide the Holders true and complete copies of all correspondence from and
to
the Commission relating to the Registration Statement; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange
Act
with respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance (subject
to
the terms of this Agreement) with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in
such
Prospectus as so supplemented.
(d) Notify
the Holders of Registrable Securities to be sold and Legal Counsel (which
notice, pursuant to clauses (ii) through (vi) hereof, shall be accompanied
by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made) as promptly as reasonably possible and (if requested by any
such
Person) confirm such notice in writing no later than two Trading Days following
the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a “review” of the
Registration Statement and whenever the Commission comments in writing on the
Registration Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to each of the Holders); and (C)
with
respect to the Registration Statement or any post-effective amendment, when
the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement covering any or all of the Registrable Securities 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
or exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; (v) of the occurrence of any event or passage of time that makes the
financial statements included in the Registration Statement ineligible for
inclusion therein or any statement made in the Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
the
Registration Statement, Prospectus or other documents so that, in the case
of
the Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
(vi) the occurrence or existence of any pending corporate development with
respect to the Company that the Company believes may be material and that,
in
the determination of the Company, makes it not in the best interest of the
Company to allow continued availability or the Registration Statement or
Prospectus; provided that the Company shall not disclose the nature of such
information to the Holder.
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(e) Promptly
deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request. Subject to the terms
of this Agreement, the Company hereby consents to the use of such Prospectus
and
each amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities covered
by
such Prospectus and any amendment or supplement thereto.
(f) Use
commercially reasonable efforts to register or qualify the resale of such
Registrable Securities as required under applicable securities or Blue Sky
laws
of each State within the United States as any Holder requests in writing, to
keep each the Registration or qualification (or exemption therefrom) effective
during the Effectiveness Period; provided, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is
not
then so qualified or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
(g) Cooperate
with the Holders to facilitate the timely preparation and delivery of ADRs
representing Registrable Securities to be delivered to a transferee pursuant
to
the Registration Statement, which shall be free, to the extent permitted by
the
Purchase Agreement, of all restrictive legends, and to enable such ADRs to
be in
such denominations and registered in such names as any such Holders may
request.
(h) Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
If the
Company notifies the Holders in accordance with clauses (ii) through (vi) of
Section 3(d) above to suspend the use of any Prospectus until the requisite
changes to such Prospectus have been made, or the Company otherwise notifies
the
Holders of its election to suspend the availability of the Registration
Statement and Prospectus pursuant to clause (vi) of Section 3(d), then the
Holders shall suspend use of such Prospectus. The Company will use its best
efforts to ensure that the use of the Prospectus may be resumed as promptly
as
is practicable, except that in the case of suspension of the availability of
the
Registration Statement and Prospectus pursuant to clause (vi) of Section 3(d),
the Company shall not be required to take such action until such time as it
shall determine that the continued availability of the Registration Statement
and Prospectus is no longer not in the best interests of the Company. The
Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement and Prospectus, subject
to the payment of liquidated damages pursuant to Section 2(b), for a period
not
to exceed 60 consecutive days or for multiple periods not to exceed 90 days
in
any 12 month period.
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(i) Comply
with all applicable rules and regulations of the Commission.
(j) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order suspending the effectiveness of the Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification)
of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(k) The
Company may require, at any time prior to the third Trading Day prior to the
Filing Date, each Holder to furnish to the Company a statement as to the number
of Ordinary Shares beneficially owned by such Holder and, if requested by the
Commission, the controlling person thereof, within three Trading Days of the
Company’s request. During any periods that the Company is unable to meet its
obligations hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to furnish such information within
three Trading Days of the Company’s request, any liquidated damages that are
accruing at such time shall be tolled, until such information is delivered
to
the Company.
4. Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
Trading Market on which the ADRs are then listed for trading, and (B) in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination
of
the eligibility of the Registrable Securities for investment under the laws
of
such jurisdictions as requested by the Holders)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses requested by the Holders),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements
of
counsel for the Company, and (v) reasonable fees and disbursements of Legal
Counsel, and (vi) fees and expenses of all other Persons retained by the Company
in connection with the consummation of the transactions contemplated by this
Agreement. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries
and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit and the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange as
required hereunder. In no event shall the Company be responsible for any broker
or similar commissions or, except to the extent provided for in the Transaction
Documents, any legal fees or other costs of the Holders.
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5. Indemnification
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, members, partners, agents,
brokers (including brokers who offer and sell Registrable Securities as
principal as a result of a pledge or any failure to perform under a margin
call
of ADRs), investment advisors and employees of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act) and the officers, directors, members,
partners, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs (including,
without limitation, costs of preparation and reasonable attorneys’ fees) and
expenses (collectively, “Losses”),
as
incurred, arising out of or relating to (i) any breach of applicable securities
laws or untrue or alleged untrue statement of a material fact contained in
the
Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising
out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case
of
any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (1) such untrue statements or omissions or alleged
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in
the Registration Statement, such Prospectus or such form of Prospectus or in
any
amendment or supplement thereto or (2) in the case of an occurrence of an event
of the type specified in Section 3(d)(ii)-(vi), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder
in
writing that the Prospectus is outdated or defective and prior to the receipt
by
such Holder of the Advice contemplated in Section 6(e); (ii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state securities
laws, or any rule or regulation thereunder relating to the offer or sale of
the
Registrable Securities pursuant to a Registration Statement; or (iii) any
material violation of this Agreement by the Company, its agents or
representatives.
The
Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions
contemplated by this Agreement of which the Company is aware.
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(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review) arising out of or based
upon any untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or any form of prospectus, or in any amendment or
supplement thereto, arising solely out of or based solely upon: (i) such
Holder’s failure to comply with the prospectus delivery requirements of the
Securities Act or (ii) any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading to the
extent, but only to the extent, such untrue statement or omission is contained
in any information so furnished in writing by such Holder to the Company
specifically for inclusion in the Registration Statement or such Prospectus
or
to the extent that (1) such untrue statements or omissions are based upon
information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, or to the extent such information relates
to
such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form
of
Prospectus or in any amendment or supplement thereto or (2) in the case of
an
occurrence of an event of the type specified in Section 3(d)(ii)-(vi), the
use
by such Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or defective
and
prior to the receipt by such Holder of the Advice contemplated in Section 6(e).
In no event shall the liability of any selling Holder hereunder be greater
in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities covered by such Registration Statement
giving rise to such indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party
and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that such failure
shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume
the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a material conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying Party
(in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense
thereof and the expense of one such counsel for each Holder shall be at the
expense of the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of
such Proceeding.
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Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within 10 Trading Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that
an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution.
If a
claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
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The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Miscellaneous
(a) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and all of the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of all of the Registrable Securities
to
which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(b) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has entered, as of the date hereof,
nor
shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. Except as set forth on
Schedule 6(b), neither the Company nor any of its subsidiaries has previously
entered into any agreement granting any registration rights with respect to
any
of its securities to any Person that have not been satisfied in
full.
(c) No
Piggyback on Registrations.
Neither
the Company nor any of its security holders (other than the Holders in such
capacity pursuant hereto) may include securities of the Company in the
Registration Statement other than the Registrable Securities, and the Company
shall not after the date hereof enter into any agreement providing any such
right to any of its security holders. In addition, the Company shall not cause
any other registration statement to become effective prior to the Effective
Date.
(d) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration
Statement.
-11-
(e) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Sections 3(d)(ii) through (vi), such Holder will forthwith
discontinue disposition of such Registrable Securities under the Registration
Statement until such Holder’s receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement contemplated by Section 3(h),
or until it is advised in writing (the “Advice”) by the Company that the use of
the applicable Prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration Statement.
The Company may provide appropriate stop orders to enforce the provisions of
this paragraph.
The
Company agrees and acknowledges that any periods during which the Holder is
required to discontinue the disposition of the Registrable Securities hereunder
shall be subject to the provisions of Section 2(b).
(f) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than a registration
statement relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then the Company
shall send to each Holder written notice of such determination and, if within
ten Trading Days after receipt of such notice, any such Holder shall so request
in writing, the Company shall include in the Registration Statement all or
any
part of such Registrable Securities such holder requests to be registered;
provided, that, the Company shall not be required to register any Registrable
Securities pursuant to this Section 6(f) that are eligible for resale pursuant
to Rule 144(k) promulgated under the Securities Act or that are the subject
of a
then effective Registration Statement.
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Purchase Agreement.
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of all of the Holders of the then-outstanding
Registrable Securities. Each Holder may assign their respective rights hereunder
in the manner and to the Persons as permitted under the Purchase
Agreement.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
-12-
(j) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party hereby irrevocably submits
to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in
any
suit, action or proceeding, any claim that it is not personally subject to
the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to
it
under the Purchase Agreement and agrees that such service shall constitute
good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence a Proceeding
to
enforce any provisions of this Agreement, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorneys fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(n) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
-13-
(o) Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser hereunder is several and not joint with the
obligations of any other Purchaser hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not
be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
********************
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
By:
|
|
|
| Name: |
Xxx
Xxxxxxx
|
|
| Title: |
Chief
Executive Officer
|
|
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
-14-
[SIGNATURE
PAGE OF HOLDERS TO RRA]
|
[PURCHASER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Exhibit
A
Plan
of Distribution
The
selling shareholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their ADRs
on
any stock exchange, market or trading facility on which the ADRs are traded
or
in private transactions. These sales may be at fixed or negotiated prices.
The
selling shareholders may use any one or more of the following methods when
selling ordinary shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the ADRs as
agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
settlement
of short sales created after the date of this
Prospectus;
|
|
·
|
broker-dealers
may agree with the selling shareholders to sell a specified number
of such
ADRs at a stipulated price per ADR;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling shareholders may also sell ADRs under Rule 144 under the Securities
Act,
if available, rather than under this prospectus. Broker-dealers engaged by
the
selling shareholders may arrange for other brokers-dealers to participate in
sales. Broker-dealers may receive commissions or discounts from the selling
shareholders (or, if any broker-dealer acts as agent for the purchaser of
shares, from the purchaser) in amounts to be negotiated. The selling
shareholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.
The
selling shareholder may from time to time pledge or grant a security interest
in
some or all of the ADRs owned by them and, if they default in the performance
of
their secured obligations, the pledgees or secured parties may offer and sell
the ADRs from time to time under this prospectus, or under an amendment to
this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of selling shareholders to include the pledgee,
transferee or other successors in interest as selling shareholders under this
prospectus.
The
selling shareholders also may transfer the ADRs in other circumstances, in
which
case the transferees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The
selling shareholders and any broker-dealers or agents that are involved in
selling the ADRs may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
ADRs purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. The selling shareholders have informed the Company
that none of them have any agreement or understanding, directly or indirectly,
with any person to distribute the ADRs.
The
Company is required to pay all fees and expenses incurred by the Company
incident to the registration of the ADRs. The Company has agreed to indemnify
the selling shareholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
