AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT By and among ASHMORE ENERGY INTERNATIONAL AND THE INVESTORS IDENTIFIED HEREIN Dated as of December 29, 2006
Exhibit 2.1
EXECUTION COPY
AMENDED AND RESTATED
By and among
XXXXXXX ENERGY INTERNATIONAL
AND
THE INVESTORS IDENTIFIED HEREIN
Dated as of December 29, 2006
Exhibit 2.1
EXECUTION COPY
AMENDED AND RESTATED
By and among
XXXXXXX ENERGY INTERNATIONAL
AND
THE INVESTORS IDENTIFIED HEREIN
Dated as of December 29, 2006
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
1.
|
Requested Registrations | 1 | ||||
(a) Registration Requests | 1 | |||||
(b) Limitations on Requested Registrations | 2 | |||||
(c) Registration Statement Form | 2 | |||||
(d) Registration Expenses; Withdrawal | 2 | |||||
(e) Priority in Cutback Registrations | 3 | |||||
(f) Preemption of Requested Registration | 3 | |||||
2.
|
Piggyback Registrations | 3 | ||||
(a) Right to Include Registrable Securities | 3 | |||||
(b) Registration Expenses | 4 | |||||
(c) Priority in Cutback Registrations | 4 | |||||
3.
|
Shelf Registration | 4 | ||||
4.
|
Registration Procedures | 5 | ||||
5.
|
Underwritten Offerings | 9 | ||||
(a) Underwritten Requested and Shelf Offerings | 9 | |||||
(b) Underwritten Piggyback Offerings | 9 | |||||
6.
|
Holdback Agreements | 10 | ||||
7.
|
Indemnification | 11 | ||||
(a) Indemnification by the Company | 11 | |||||
(b) Indemnification by Investor | 12 | |||||
(c) Notices of Claims, etc. | 12 | |||||
(d) Contribution | 13 | |||||
(e) Other Indemnification | 13 | |||||
(f) Indemnification Payments | 14 | |||||
8.
|
Covenants Relating to Rule 144 | 14 | ||||
9.
|
Reports Under Securities Exchange Act 1934 | 14 | ||||
10.
|
Other Registration Rights | 15 | ||||
(a) No Existing Agreements | 15 | |||||
(b) Future Agreements | 15 | |||||
11.
|
Mergers, Etc. | 15 | ||||
12.
|
Definitions | 15 | ||||
13.
|
Miscellaneous | 19 | ||||
(a) Notices | 19 |
-ii-
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
(b) Entire Agreement; Amendments and Waiver | 20 | |||||
(c) Severability | 20 | |||||
(d) Binding Effect; Assignment | 20 | |||||
(e) No Third Party Beneficiary | 21 | |||||
(f) Table of Contents and Headings | 21 | |||||
(g) Specific Performance | 21 | |||||
(h) Governing Law | 21 | |||||
(i) Counterparts | 21 | |||||
(j) Several Obligations | 21 | |||||
(k) Limitation of Liability | 22 | |||||
(l) Aggregation of Stock | 22 |
-iii-
XXXXXXX ENERGY INTERNATIONAL
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of
December 29, 2006, and entered into by and among Xxxxxxx Energy International, a Cayman Islands
exempted company, and the shareholders of the Company (defined below) listed on Appendix A hereto
(together with any other Person who agrees to be bound by the terms of this Agreement (other than
the Company), the “Investors”).
WHEREAS,
Xxxxxxx Energy International Limited, a Cayman Islands exempted
company (“AEI”) was
the sole shareholder of Prisma Energy International Inc. (“Prisma”);
WHEREAS, on the date hereof, AEI was amalgamated with and into Prisma (the
“Amalgamation”), with Prisma being the surviving entity in the Amalgamation;
WHEREAS, effective as of the date hereof, Prisma changed its name to Xxxxxxx Energy
International (the “Company”);
WHEREAS, prior to the Amalgamation, AEI was a party to that certain Registration Rights
Agreement, dated as of May 25, 2006 (the “Original Registration Rights Agreement”), by and
among AEI and the shareholders of AEI party thereto;
WHEREAS, upon confirmation of the Amalgamation, the Company as a matter of law assumed all of
AEI’s obligations under the Original Registration Rights Agreement;
WHEREAS, the Company and the Investors desire to amend and restate the Original Registration
Rights Agreement in its entirety as hereinafter provided.
NOW, THEREFORE, the parties hereby agree as follows:
The parties hereby agree as follows:
1. Requested Registrations.
(a) Registration Requests. If the Company shall receive (i) at any time six
months after the effective date of an initial Public Offering, a written request from the
holders of 10% or more of the Registrable Securities then outstanding or (ii) provided a
Public Offering has not previously occurred, at any time after May 25, 2009, a written
request from holders of a majority of the outstanding Company Shares not owned (legally or
beneficially) by the Xxxxxxx Funds or Affiliates thereof, requesting that the Company file a
registration statement under the Securities Act covering the registration of all or part of
the Registrable Securities held by such Investor or Investors (each, an “Initiating
Investor”) and specifying the number of Registrable Securities to be registered and the
intended method and place of disposition thereof (provided that (i) in the case of a
request for registration made pursuant to Section 1(a)(i), the anticipated aggregate
offering price, before underwriting discounts and commissions, of the securities to be
registered must exceed $75,000,000 and (ii) in the case of a request for registration made
pursuant to Section 1(a)(ii), following the offering the Company Shares shall be listed on a
Specified Exchange), then the Company shall, within ten days of the receipt thereof give
written notice of
such
request to the other Investors and shall, subject to the limitations of this Section 1(a) and
Section 1(b), use its reasonable efforts to effect as soon as practicable, following the receipt of
such request, the registration under the Securities Act of all Registrable Securities which the
Initiating Investors and all other participating Investors request to be registered (which request
must be made within 20 days of the mailing of such notice by the Company), all to permit the
disposition (in accordance with the intended methods thereof) of the Registrable Securities so to
be registered. Notwithstanding the foregoing, the Company may postpone taking action with respect
to a Requested Registration for a reasonable period of time after receipt of the original request
(not exceeding 90 days) if, in the good faith opinion of the Company’s Board of Directors,
effecting the registration would adversely affect a material financing, acquisition, disposition of
assets or stock, merger or other comparable transaction (or is prohibited under the terms of any
such transaction) or would require the Company to make public disclosure of information the public
disclosure of which would have a material adverse effect upon the Company; provided that
the Company shall not delay such action pursuant to this sentence more than once in any
twelve-month period.
(b) Limitations on Requested Registrations. Notwithstanding anything herein to the
contrary, the Company shall not be required to honor a request for a Requested Registration
pursuant to clause (i) of Section 1(a) if:
(i) with respect to a request made by any Xxxxxxx Fund or any of its Affiliates
pursuant to this Section 1, the Company has previously effected two Effective
Registrations pursuant to this Section 1 for any Xxxxxxx Fund or any of its Affiliates;
(ii) with respect to a request made by any Investors other than an Xxxxxxx Fund (or
any Affiliate thereof) pursuant to this Section 1, the Company has previously effected two
Effective Registrations pursuant to this Section 1 for Investors other than an Xxxxxxx
Fund (or any Affiliate thereof);
(iii) such request is received from the Initiating Investors with respect to
Registrable Securities that may immediately be sold under Rule 144(k) during any 90 day
period;
(iv) such request is made with respect to shares of Registrable Securities that may
be immediately registered pursuant to a request made pursuant to Section 3 below; or
(v) such request is received by the Company less than twelve months following the
effective date of any previous registration statement filed in connection with a Requested
Registration or a Piggyback Registration.
(c) Registration Statement Form. Requested Registrations shall be on such
appropriate registration form promulgated by the Commission as shall be selected by the Company,
and shall be reasonably acceptable to the Initiating Investors holding a majority of the
Registrable Securities the Initiating Investors have requested to be registered and shall permit
the disposition of such Registrable Securities in accordance with the intended method or methods
specified in its request for such registration.
(d) Registration Expenses; Withdrawal. All Registration Expenses incurred in
connection with any Requested Registration shall be paid by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any registration
proceeding
2
begun if the Requested Registration is subsequently withdrawn at the request of Investors holding
a majority of the Registrable Securities to be included in such registration (in which case the
Investors participating in such offering shall bear all such expenses proportionately based on the
amount of Registrable Securities each Investor requested to be included in such offering and shall
not be deemed to have used one of their registration rights pursuant to this Section 1) for any
reason other than a change, circumstance or event materially adversely effecting the Company
unless such Investors agree to forfeit their rights to one such registration.
(e) Priority in Cutback Registrations. If a Requested Registration becomes a
Cutback Registration, the Company shall first reduce any securities to be included in such offering
that are not Registrable Securities and thereafter include in such registration the maximum number
of Registrable Securities which in the opinion of the Managing Underwriter can be sold in such
offering, which number shall be allocated among all participating Investors, in proportion (as
nearly as practicable) to the amount of Registrable Securities such Investors requested to be
included in such offering.
(f) Preemption of Requested Registration. Notwithstanding anything to the contrary
contained herein, at any time within 30 days after receiving a written request for a Requested
Registration, the Company may elect to effect an underwritten primary registration in lieu of the
Requested Registration if the Company’s Board of Directors believes in good faith that such primary
registration would be in the best interests of the Company or if the Managing Underwriter for the
Requested Registration advises the Company in writing that in its opinion, in order to sell the
Registrable Securities to be sold, the Company should include its own securities. If the Company so
elects to effect a primary registration, the Company shall give prompt written notice to Investors
of its intention to effect such a registration and shall afford Investors the rights contained in
Section 2 with respect to Piggyback Registrations. In the event that the Company so elects to
effect a primary registration after receiving a request for a Requested Registration, the requests
for a Requested Registration shall be deemed to have been withdrawn and such primary registration
shall not be deemed to be an Effective Registration, and all Registration Expenses for such
withdrawn Requested Registration shall be paid by the Company. Notwithstanding anything to the
contrary herein, the Company shall not be entitled to preempt a Requested Registration pursuant to
this Section 1(f) more than once in any twelve-month period.
2. Piggyback Registrations.
(a) Right to Include Registrable Securities. Notwithstanding any limitation contained
in Section 1, if at any time the Company proposes to effect a Piggyback Registration, including in
accordance with Section l(f), it will give written notice (a “Notice of Piggyback
Registration”) at least 15 days prior to the anticipated filing date, to all Investors of its
intention to do so and of Investors’ rights under this Section 2, which Notice of Piggyback
Registration shall include a description of the intended method of disposition of such securities.
Upon the written request of any Investor made within 15 days after receipt of a Notice of
Piggyback Registration (which request shall specify the number of Registrable Securities intended
to be disposed of by such Investor and the intended method of disposition thereof), the Company
shall, subject to the other provisions of this Agreement, include in the registration statement
relating to such Piggyback Registration all Registrable Securities which the Company has been so
requested to register to permit the disposition of such Registrable Securities in accordance with
the intended method of disposition set forth in the Notice of Piggyback Registration.
Notwithstanding the foregoing, if, at any time after giving a Notice of Piggyback Registration and
prior to the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to delay registration
of such securities, the Company
3
may, at its election, give written notice of such determination to the Investors that elected to
participate in such registration (the “Piggyback Investors”) and, thereupon (i) in the
case of a determination not to register, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from its obligation to pay
the Registration Expenses in connection therewith) without prejudice, however, to the rights of
the Piggyback Investors to request that such registration be effected as a Requested Registration
under Section 1, and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities for the same period as the delay in registering
such other securities. No registration effected under this Section 2 shall relieve the Company of
its obligations to effect a Requested Registration under Section 1.
(b) Registration Expenses. All Registration Expenses incurred in connection with any
Piggyback Registration shall be paid by the Company.
(c) Priority in Cutback Registrations. If a Piggyback Registration becomes a
Cutback Registration, the Company will include in such registration to the extent of the amount of
the securities which the Managing Underwriter advises the Company can be sold in such offering:
(i) if such registration as initially proposed by the Company was solely a primary
registration of its securities (x) first, the securities proposed by the Company
to be sold for its own account, (y) second, any Registrable Securities requested to be
included in such registration by the Investors and (z) third, any other securities
of the Company proposed to be included in such registration; and
(ii) if such registration as initially proposed by the Company was in whole or in
part requested by one or more Investors pursuant to Section 1 hereof (x) first,
securities proposed to be sold by such Investors and any other Investors electing to
participate in such registration pursuant to Section 1(a) above, (y) second, the
securities proposed by the Company to be sold for its own account and (z) third,
any other securities of the Company proposed to be included in such registration;
and any securities so excluded shall be withdrawn from and shall not be included in such Piggyback
Registration.
3. Shelf Registration.
(a) If the Company receives from one or more Investors at any time after the Company is
eligible to register securities on Form F-3 or Form S-3, as applicable, a request that the Company
effect a registration on Form F-3 or Form S-3, as applicable (a “Shelf Registration”),
with respect to all or a part of the Registrable Securities owned by such Investors, the Company
will (i) within ten days of the receipt thereof give written notice of such request to the other
Investors and (ii) as soon as practicable, effect such registration and all such qualifications as
are required to facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion of the Registrable
Securities of any other Investor or Investors joining in such request. Other Investors wishing to
include their Registrable Securities in any Shelf Registration to be effected pursuant to this
Section 3 must notify the Company of the number of Registrable Securities owned by them that are to
be included in such registration within 20 days after receipt of the written notice from the
Company referred to above.
4
(b) The foregoing notwithstanding, the Company shall not be obligated to effect any
such registration or qualification pursuant to this Section 3: (i) if neither Form F-3 nor
Form S-3 is available for such offering; (ii) if Investors propose to sell Registrable
Securities at an aggregate price to the public (before any underwriters’ discounts or
commissions) of less than $25,000,000; (iii) if the Company shall furnish to Investors a
certificate signed by an authorized officer of the Company stating that in the good faith
judgement of the Board of Directors of the Company, effecting the requested registration
would adversely affect a material financing, acquisition, disposition of assets or stock,
merger or other comparable transaction (or is prohibited under the terms of any such
transaction) or would require the Company to make public disclosure of information the
public disclosure of which would have a material adverse effect upon the Company;
provided that the Company shall not delay such action pursuant to this sentence more
than twice in any twelve-month period; (iv) if the Company has, within the twelve month
period preceding the date of such request, already effected two registrations for any
Investors pursuant to this Section 3; (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance; or (vi)
during the period ending 90 days after the effective date of a registration statement
subject to Section 2 (or such longer period, not to exceed 180 days from the effective date
of such registration statement, as the Company may be required to keep such registration
effective pursuant to Section 4(b)).
(c) Subject to the foregoing, the Company shall file a registration statement covering
the Registrable Securities so requested to be registered as soon as practicable after
receipt of the request of one or more Investors, that, if permitted under the Securities
Act, shall be a registration statement which is automatically effective upon filing.
Registrations effected pursuant to this Section 3 shall not be counted as requests for
registration or registrations effected pursuant to Section 1.
(d) All Registration Expenses incurred in connection with any Registration made
pursuant to this Section 3 shall be paid by the Company; provided, however,
that the Company shall not be required to pay for any expenses of any registration
proceeding begun if the registration request is subsequently withdrawn at the request of
Investors holding a majority of the Registrable Securities to be included in such
registration (in which case the Investors participating in such offering shall bear all such
expenses proportionately based on the amount of Registrable Securities each Investor
requested to be included in such offering and shall not be deemed to have used one of their
registration rights pursuant to this Section 3) for any reason other than a change,
circumstance or event materially adversely effecting the Company unless such Investors agree
to forfeit their rights to one such registration.
(e) If a Shelf Registration becomes a Cutback Registration, the Company shall first
reduce any securities to be included in such offering that are not Registrable Securities
and thereafter include in such registration the maximum number of Registrable Securities
which in the opinion of the Managing Underwriter can be sold in such offering, which number
shall be allocated among all participating Investors, in proportion (as nearly as
practicable) to the amount of Registrable Securities such Investors requested to be included
in such offering.
4. Registration Procedures. If and whenever the Company is required to effect the
registration of any Registrable Securities under the Securities Act pursuant to Sections 1, 2 or
3, the Company will use its reasonable best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method of disposition thereof. Without
limiting the foregoing, the Company in each such case will, as expeditiously as possible, use its
reasonable best efforts to:
5
(a) prepare and file (in case of a Requested Registration, not later than 90 days after the
Company’s receipt of the request therefor from Investors or as soon thereafter as possible) with
the Commission the requisite registration statement to effect such registration and to cause such
registration statement to become effective and, upon the request of Investors holding a majority of
the Registrable Securities included in such registration, keep such registration statement
effective for up to 180 days, provided that said period shall be extended for a period of
time equal to the period the Investors refrain from selling any securities included in such
registration at the request of an underwriter of Company Shares; and provided that as far
in advance as practical before filing such registration statement or any amendment thereto, the
Company will furnish to Investors copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits), and each Investor shall have the opportunity to object
to any information pertaining solely to it that is contained therein and the Company will promptly
make the corrections reasonably requested by such Investor with respect to such information prior
to filing any such registration statement or amendment;
(b) prepare and file with the Commission such amendments and supplements to such registration
statement and any Prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration statement and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by such registration
statement, in accordance with the intended methods of disposition thereof, until the earlier of (i)
such time as all of such securities have been disposed of in accordance with the Investors’
intended methods of disposition set forth in such registration statement for such period and (ii)
180 days after such registration statement becomes effective;
(c) promptly notify Investors and the underwriter or underwriters, if any:
(i) when such registration statement or any Prospectus used in connection therewith,
or any amendment or supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment thereto, when the same has become
effective;
(ii) of any written comments from the Commission with respect to any filing referred
to in clause (i) and of any written request by the Commission for amendments or
supplements to such registration statement or Prospectus;
(iii) of the notification to the Company by the Commission of its initiation of any
proceeding with respect to the issuance by the Commission of, or of the issuance by the
Commission of, any stop order suspending the effectiveness of such registration statement;
and
(iv) of the receipt by the Company of any notification with respect to the suspension
of the qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction;
and, in the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts
(A) to respond satisfactorily to any such comments and to file promptly any necessary amendments;
(B) prevent the issuance of any stop order or to obtain its withdrawal if such stop order should
be issued; and (C) to obtain the withdrawal of any such suspension of qualification, respectively.
(d) furnish to each Investor such number of conformed copies of such registration statement
and of each amendment and supplement thereto (in each case including all exhibits and
6
documents incorporated by reference), such number of copies of the Prospectus contained in such
registration statement (including each preliminary Prospectus and any summary Prospectus) and any
other Prospectus filed under Rule 424 promulgated under the Securities Act relating to such
Investor’s Registrable Securities, and such other documents as each Investor may reasonably
request to facilitate the disposition of its Registrable Securities;
(e) register or qualify all Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as Investors shall reasonably
request, to keep such registration or qualification in effect for so long as such registration
statement remains in effect, and promptly take any other action which may be reasonably necessary
or advisable to enable Investors to consummate the disposition in such jurisdictions of the
Registrable Securities owned by Investors, except that the Company shall not for any such purpose
be required (i) to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this paragraph (e) be obligated to be so
qualified, (ii) to subject itself to taxation in any such jurisdiction or (iii) to consent to
general service of process in any jurisdiction;
(f) use its reasonable best efforts to cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable each Investor to consummate the disposition of such
Registrable Securities;
(g) furnish to each Investor signed counterparts, addressed to such Investor (and the
underwriters, if any), of
(i) an opinion of counsel for the Company, dated as of the effective date of such
registration statement (or, if such registration includes an underwritten Public Offering,
dated the date of any closing under the underwriting agreement), reasonably satisfactory in
form and substance to Investors holding a majority of the Registrable Securities to be
included in such registration, and
(ii) a “comfort” letter, dated as of the effective date of such registration statement
reasonably satisfactory in form and substance to Investors holding a majority of the
Registrable Securities to be included in such registration (and, if such registration
includes an underwritten Public Offering, dated the date of any closing under the
underwriting agreement), signed by the independent public accountants who have certified
the Company’s financial statements included in such registration statement,
in each case covering substantially the same matters with respect to such registration statement
(and the Prospectus included therein) and, in the case of the accountants’ letter, with respect to
events subsequent to the date of such financial statements, as are customarily covered in opinions
of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten
Public Offerings of securities and, in the case of the accountants’ letter, such other financial
matters, as Investors (or the underwriters, if any) may reasonably request;
(h) promptly notify each Investor, at any time when a Prospectus relating to its Registrable
Securities covered by a registration statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which any Prospectus included in such
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 at the
request of
7
any Investor promptly prepare and furnish to all Investors a reasonable number of copies of
a supplement to or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such Prospectus shall not
include 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 the light of the
circumstances under which they were made, not misleading;
(i) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its securityholders, as soon as
reasonably practicable and in any event within 60 days after the effective date of the
registration statement, an earnings statement covering the period of at least twelve
months, but not more than 18 months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(j) promptly make available for inspection by each Investor, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by such Investor or such underwriter (collectively, the
“Inspectors”), all financial and other records, pertinent corporate documents and
properties of the Company (collectively, the “Records”) as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors and employees to supply all information reasonably requested
by any such Inspector in connection with such registration statement. Records which the
Company determines, in good faith, to be confidential and which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) the information in such Records has been
made generally available to the public. Each Investor agrees by acquisition of such
Registrable Securities that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction, give notice to the Company and allow the Company, at
the Company’s expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(k) promptly provide a transfer agent and registrar for all Registrable Securities
covered by such registration statement and a CUSIP number for all Registrable Securities,
in each case not later than the effective date of such registration statement;
(l) use its reasonable best efforts to cause all Registrable Securities covered by
such registration statement to be listed, upon official notice of issuance, on any
securities exchange on which any of the securities of the same class as the Registrable
Securities are then listed; and
(m) in the case of an underwritten offering, cause the senior executive officers of
the Company to participate in the customary “road show” presentations that may be
reasonably requested by the Managing Underwriter in any such underwritten offering and
otherwise to facilitate, cooperate with, and participate in each proposed offering
contemplated herein and customary selling efforts related thereto.
The Company may require each Investor, and such Investor, as a condition to including its
Registrable Securities in such registration, shall, furnish the Company with such information
regarding such Investor and the distribution of such securities as shall be required to effect the
registration of such Investor’s Registrable Securities.
8
Each Investor agrees by acquisition of such Registrable Securities that upon receipt of any
notice from the Company of the happening of any event of the kind described in paragraph (h), such
Investor will forthwith discontinue its disposition of such Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such Investor receives copies
of the supplemented or amended Prospectus contemplated by paragraph (h) and, if so directed by the
Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent
file copies, then in such Investor’s possession of the Prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the Company shall give any
such notice, the period referred to in paragraph (b) shall be extended by a number of days equal to
the number of days during the period from and including the giving of notice pursuant to paragraph
(h) and to and including the date when such Investor shall receive the copies of the supplemented
or amended Prospectus contemplated by paragraph (h).
5. Underwritten Offerings.
(a) Underwritten Requested and Shelf Offerings. In the case of any
underwritten offering being effected pursuant to a Requested Registration or a Shelf
Registration, the Managing Underwriter and any other underwriter or underwriters with
respect to such offering shall be selected, after consultation with the Company, by (i) the
Xxxxxxx Funds and its Affiliates if such Persons are the Initiating Investors and (ii)
Investors (other than the Xxxxxxx Funds or its Affiliates) holding a majority of the
Registrable Securities to be included in the Requested Registration or a Shelf Registration
if such Persons are the Initiating Investors, as the case may be, with the consent of the
Board of Directors of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed. The Company shall enter into an underwriting agreement in customary
form with such underwriter or underwriters, which shall include, among other provisions,
indemnities to the effect and to the extent provided in Section 7. Each Investor whose
Registrable Securities are included in any underwritten offering, as the holder of
Registrable Securities to be distributed by such underwriters, shall be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties and covenants by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters, also be made to and for its benefit
and that any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement also be conditions precedent to its obligations. No
Investor shall be required to make any representations or warranties to or covenants or
agreements with the Company or the underwriters other than representations, warranties,
covenants or agreements regarding such Investor and its ownership of the securities being
registered on its behalf and such Investor’s intended method of distribution and any other
representation required by law. No Investor may participate in such underwritten offering
unless it agrees to sell its Registrable Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers of attorney,
indemnities and other documents reasonably required under the terms of such underwriting
agreement. If any Investor disapproves of the terms of an underwriting, it may elect to
withdraw therefrom and from such registration by notice to the Company and the Managing
Underwriter, and the Company shall be entitled to increase the number of securities proposed
by the Company to be sold for its own account to the extent permitted by the Managing
Underwriter.
(b) Underwritten Piggyback Offerings. If the Company at any time proposes to
register any of its securities in a Piggyback Registration and such securities are to be
distributed by or through one or more underwriters, the Company will, subject to the
provisions of Section 2(c), use its best efforts, if requested by any Investor, to arrange
for such underwriters to include the Registrable Securities to be offered and sold by such
Investor among the securities to be distributed by such underwriters and such Investor shall
be obligated to sell its Registrable
9
Securities in such Piggyback Registration through such underwriters on the same terms and
conditions as apply to the other Company securities to be sold by such underwriters in connection
with such Piggyback Registration. Each Investor whose Registrable Securities are included in any
underwritten offering, as the holder of Registrable Securities to be distributed by such
underwriters, shall be party to the underwriting agreement between the Company and such underwriter
or underwriters and may, at its option, require that any or all of the representations and
warranties and covenants by, and the other agreements on the part of, the Company to and for the
benefit of such underwriters also be made to and for its benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such underwriting agreement also
be conditions precedent to its obligations. No Investor shall be required to make any
representations or warranties to or covenants or agreements with the Company or the underwriters
other than representations, warranties or agreements regarding such Investor and its ownership of
the securities being registered on its behalf and such Investor’s intended method of distribution
and any other representation required by law. No Investor may participate in such underwritten
offering unless it agrees to sell its Registrable Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers of attorney,
indemnities and other documents reasonably required under the terms of such underwriting agreement.
If any Investor disapproves of the terms of an underwriting, it may elect to withdraw therefrom and
from such registration by notice to the Company and the Managing Underwriter, and the Company shall
be entitled to increase the number of securities proposed by the Company to be sold for its own
account to the extent permitted by the Managing Underwriter.
6. Holdback Agreements.
(a)
By Investors. (i) Subject to Section 6(a)(ii), upon the request of the Managing
Underwriter (or, in the case of a non-underwritten Public Offering, the Company), each Investor
agrees not to effect any public sale or distribution (including a sale under Rule 144) of such
securities during the 7 days prior to the estimated effective date (provided, that the
Managing Underwriter has provided prior notice to the Investors of such estimated effective date),
and up to 180 days after, the effective date of any Piggyback Registration filed by the Company in
connection with a Public Offering (or for such shorter period of time as is sufficient and
appropriate, in the opinion of the Managing Underwriter (or, in the case of a non-underwritten
Public Offering, the Company), in order to complete the sale and distribution of the securities
included in such registration), except as part of such registration statement, whether or not such
Investor participates in such registration, provided that all directors and executive
officers of the Company are similarly restricted. Any waiver or termination of the prohibition set
forth in this Section 6(a)(i) by the Managing Underwriter or the Company, as applicable, shall
apply to all Persons who are subject hereto or any similar such obligation on a pro rata basis.
(i) Each Investor agrees not to effect any public sale or distribution (including a sale
under Rule 144) of such securities during the 7 days prior to the estimated effective date
(provided, that the Managing Underwriter has provided prior notice to the Investors of
such estimated effective date) and up to 180 days after the effective date of any registration
statement filed by the Company in connection with an initial Public Offering (or for such shorter
period of time as is sufficient and appropriate, in the opinion of the Managing Underwriter, in
order to complete the sale and distribution of the securities included in such registration),
except as part of such registration statement, whether or not such Investor participates in such
registration; provided that the foregoing shall not prohibit an Investor from
participating in any Piggyback Registration pursuant to Section 2. Any waiver or termination of
the prohibition set forth in this Section 6(a)(ii) by the Managing Underwriter shall apply to all
Persons who are subject hereto or any similar such obligation on a pro rata basis.
10
(b) By the Company. Upon the request of the Managing Underwriter, the Company agrees
(provided, that the obligation in this Section 6 shall apply with respect to the
registration statement filed in connection with the Company’s initial Public Offering by the
Company without the need for any such request) not to effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or exercisable for such
securities, during the 14 days prior to the estimated effective date (provided, that the
Managing Underwriter has provided prior notice to the Company of such estimated effective date) and
the 180 days after the effective date of the registration statement filed in connection with such
offering made pursuant to a Requested Registration (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the Managing Underwriter, in order to complete the
sale and distribution of the securities included in such registration), except as part of such
underwritten registration and except pursuant to registrations on Form F-4 or Form S-4, as
applicable, promulgated by the Commission or any successor or similar forms thereto or registered
offerings of securities to employees pursuant to any employee benefit plan.
(c) Hedging Arrangements. The restrictions is this Section 6 shall also apply to the entering
into of any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of the ownership of the Registrable Securities.
7. Indemnification.
(a) Indemnification by the Company. The Company shall, to the full extent permitted by
law, indemnify and hold harmless each Investor and any underwriter (as defined in the Securities
Act) for such Investor in connection with a Requested Registration, Piggyback Registration or a
Shelf Registration, and each of such Investor’s officers, directors, shareholders, members (and
each general and limited partner thereof) and each other Person, if any, who controls such Investor
or such underwriter within the meaning of the Securities Act (and each of their respective
representatives), against any losses, claims, damages, expenses or liabilities (or actions or
proceedings in respect thereof, whether or not such indemnified party is a party thereto), joint or
several (together, “Losses”), to which such Investor or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise, insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in any such registration statement, any preliminary Prospectus, final Prospectus or
summary Prospectus contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a Prospectus, in the light of the circumstances under
which they were made) not misleading, or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act or the Exchange Act or any state securities law, and the Company will
reimburse such Investor, such underwriter and each such director, officer, shareholder and
controlling Person for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such Loss; provided that the Company shall not be
liable in any such case to the extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in any such registration
statement, preliminary Prospectus, final Prospectus, summary Prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the Company through an
instrument duly executed by such Investor specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Investor or any such director, officer or controlling
Person, and shall survive the transfer of such securities by such Investor. The Company shall also
indemnify each other Person who participates (including as an underwriter)
11
in the offering or sale of Registrable Securities, their officers and directors and each other
Person, if any, who controls any such participating Person within the meaning of the Securities
Act to the same extent as provided above with respect to such Investor.
(b) Indemnification by Investor. Each Investor, as a condition to including
Registrable Securities in such registration statement, shall, to the full extent permitted by law,
indemnify and hold harmless the Company, its directors and officers, and each other Person, if any,
who controls the Company within the meaning of the Securities Act, against any Losses to which the
Company or any such director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such registration
statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained therein, or
any amendment or supplement thereto, in each case, concerning the Investor, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a Prospectus, in the light of the circumstances under
which they were made) not misleading, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written information
furnished to the Company through a written instrument to be duly executed by such Investor
specifically stating that it is for use in the preparation of such registration statement,
preliminary Prospectus, final Prospectus, summary Prospectus, amendment or supplement or any
violation or alleged violation by such Investor of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act or the Exchange Act
or any state securities law; provided, however, that such Investor shall not be
liable under this Section 7(b) for any amounts in excess of the aggregate amount of net proceeds
Investor receives in connection with such offering. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities by such Investor.
Each Investor shall also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Registrable Securities, their officers and directors and each other
Person, if any, who controls any such participating Person within the meaning of the Securities Act
to the same extent as provided above with respect to the Company.
(c) Notices of Claims, etc. Promptly after receipt by an Indemnified Party of notice
of the commencement of any action or proceeding involving a claim referred to in the preceding
paragraph (a) or (b) of this Section 7, such Indemnified Party will, if a claim in respect thereof
is to be made against an Indemnifying Party pursuant to such paragraphs, give written notice to the
latter of the commencement of such action, provided that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations
under the preceding paragraphs of this Section 7, except to the extent that the Indemnifying Party
is actually prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to participate in and,
unless, in the reasonable judgement of any Indemnified Party, a conflict of interest between such
Indemnified Party and any Indemnifying Party exists with respect to such claim, to assume the
defense thereof, jointly with any other Indemnifying Party similarly notified to the extent that it
may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other than reasonable
costs of investigation; provided that the Indemnified Party may participate in such defense
at the Indemnified Party’s expense; and provided further that the Indemnified Party or
Indemnified Parties shall have the right to employ one counsel to represent it or them if, in the
reasonable
12
judgement of the Indemnified Party or Indemnified Parties, it is advisable for it or them to
be represented by separate counsel by reason of having legal defenses which are different
from or in addition to those available to the Indemnifying Party, and in that event the
reasonable fees and expenses of such one counsel shall be paid by the Indemnifying Party. If
the Indemnifying Party is not entitled to, or elects not to, assume the defense of a claim,
it will not be obligated to pay the fees and expenses of more than one counsel for the
Indemnified Parties with respect to such claim, unless in the reasonable judgement of any
Indemnified Party a conflict of interest may exist between such Indemnified Party and any
other Indemnified Parties with respect to such claim, in which event the Indemnifying Party
shall be obligated to pay the fees and expenses of such additional counsel for the
Indemnified Parties. No Indemnifying Party shall consent to entry of any judgement or enter
into any settlement without the consent of the Indemnified Party which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such claim or litigation. No
Indemnifying Party shall be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably delayed or withheld.
(d) Contribution. If the indemnity and reimbursement obligation provided for in
any paragraph of this Section 7 is unavailable or insufficient to hold harmless an
Indemnified Party in respect of any Losses (or actions or proceedings in respect thereof)
referred to therein, then the Indemnifying Party shall contribute to the amount paid or
payable by the Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other hand in connection
with statements or omissions which resulted in such Losses, as well as any other relevant
equitable considerations; provided, however, that Investor shall not be
liable under this Section 7(d) for any amounts in excess of the aggregate amount of net
proceeds Investor receives in connection with such offering. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or the Indemnified Party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this paragraph were to be 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 first sentence of this paragraph. The amount
paid by an Indemnified Party as a result of the Losses referred to in the first sentence of
this paragraph shall be deemed to include any legal and other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any Loss which is
the subject of this paragraph.
No Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to any contribution from the Indemnifying Party if
the Indemnifying Party was not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that specified in the
preceding paragraphs of this Section 7 (with appropriate modifications) shall be given by
the Company and each Investor with respect to any required registration or other
qualification of securities under any federal or state law or regulation of any governmental
authority other than the Securities Act. The provisions of this Section 7 shall be in
addition to any other rights to indemnification or contribution which an Indemnified Party
may have pursuant to law, equity, contract or otherwise.
13
(f) Indemnification Payments. The indemnification required by this Section 7
shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Losses are incurred.
8. Covenants Relating to Rule 144. If at any time the Company is required to file
reports in compliance with either Section 13 or Section 15(d) of the Exchange Act, the Company will
timely file all reports and other documents required to be filed by the Company under the Exchange
Act and will, at its expense, forthwith upon the request of any Investor, deliver to each Investor
a certificate, signed by the Company’s principal financial officer, stating (a) the Company’s name,
address and telephone number (including area code), (b) the Company’s Internal Revenue Service
identification number, (c) the Company’s Commission file number, (d) the number of shares of each
class of stock issued as shown by the most recent report or statement published by the Company, and
(e) whether the Company has filed all the reports and other documents the Company is required to
file pursuant to Section 13 or Section 15(d) of the Exchange Act during the twelve month period
preceding the date of the certificate and in addition has been subject to such filing requirements
for at least 90 days immediately preceding the date of the certificate.
9. Reports Under Securities Exchange Xxx 0000. With a view to making available to the
Investors the benefits of Rule 144 promulgated under the Securities Act and any other rule or
regulation of the Commission that may at any time permit an Investor to sell securities of the
Company to the public without registration or pursuant to a registration on Form F-3 or Form S-3,
as applicable, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are understood and
defined in Rule 144, at all times after 90 days after the effective date of the Company’s
registration statement for its initial Public Offering;
(b) take such action, including the voluntary registration of its Company Shares under
Section 12 of the Exchange Act, as is necessary to enable the Investors to utilize Form F-3
or Form S-3, as applicable, for the sale of their Registrable Securities, such action to be
taken as soon as practicable after the end of the fiscal year in which the Company’s
registration statement for its initial Public Offering is declared effective;
(c) file with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(d) furnish to any Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144 (at any time after 90 days after the effective date of
the Company’s initial Public Offering registration statement), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to Form F-3 or
Form S-3, as applicable, (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in availing any
Investor of any rule or regulation of the Commission which permits the selling of any such
securities without registration or pursuant to such form.
14
10. Other Registration Rights.
(a) No Existing Agreements. The Company represents and warrants to each Investor that
there is not in effect on the date hereof any agreement by the Company (other than this Agreement)
pursuant to which any holders of securities of the Company have a right to cause the Company to
register or qualify such securities under the Securities Act or any securities or blue sky laws of
any jurisdiction that would conflict or be inconsistent with any provision of this Agreement.
(b) Future Agreements. The Company shall not hereafter agree with the holders of any
securities issued or to be issued by the Company to register or qualify such securities under the
Securities Act or any securities or blue sky laws of any jurisdiction unless such agreement
specifically provides that (i) such holder of such securities may not participate in any Requested
Registration except as provided in Section 1; and (ii) the holder of such securities may not
participate in any Piggyback Registration except as provided in Section 2. The Company further
agrees that it shall not, without Investors’ prior written consent, enter into any agreement with
any holder or holders of any securities of the Company of the same class (or convertible into or
exchangeable for securities of the same class) as the Registrable Securities which would allow such
holder or holders to exercise any rights more favorable than the rights granted to Investors under
the terms of this Agreement. The forgoing notwithstanding, the Company may in connection with
any issuance of securities of the Company of the same class (or convertible into or exchangeable
for securities of the same class) as the Registrable Securities permit the Person or Persons to
whom such securities are issued to become party to this Agreement by executing and delivering an
instrument, in form and substance satisfactory to the Company, agreeing to become party hereto and
be bound by the provisions of this Agreement that apply to the Investors. Upon execution and
delivery of any such instrument, each such Person shall be entitled to all the rights and benefits
of an “Investor” hereunder (including, without limitation, the right to cause the Company to
register such Person’s Registrable Securities in accordance with the terms and conditions of this
Agreement). The foregoing notwithstanding, no Person shall be permitted to become a party to this
Agreement unless such Person is also a party to the Amended and Restated Shareholders Agreement,
dated the date hereof, among the Company and the shareholders of the Company from time to time
party thereto.
11. Mergers. Etc..
(a) The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving corporation unless
the proposed surviving corporation shall, immediately after such merger, consolidation or
reorganization, agree in writing to assume the obligations of the Company under this Agreement, and
for that purpose references hereunder to “Registrable Securities” shall be deemed to be references
to the securities which the Investors would be entitled to receive in exchange for Registrable
Securities under any such merger, consolidation or reorganization; provided,
however, that the provisions of this Section 11 shall not apply in the event of any merger,
consolidation or reorganization in which the Company is not the surviving corporation if all
Investors are entitled to receive in exchange for their Registrable Securities consideration
consisting solely of cash.
(b) In the event that the Company has not made an initial Public Offering and a subsidiary of
the Company holding all or substantially all of the assets that are owned directly or indirectly by
the Company proposes to make an initial Public Offering, then prior to the consummation of such
initial Public Offering the Company shall take all necessary action to
15
exchange the Investors’ Registrable Securities for common shares of such subsidiary and
shall cause such subsidiary to enter into a registration rights agreement with the Investors
that would grant the Investors substantially similar rights with respect to such subsidiary
as those provided herein. Upon such exchange, the Investors shall be entitled to receive shares of such subsidiary pro rata in accordance with the number of Company Shares held by
the Investors prior to such exchange.
12. Definitions.
(a) Except as otherwise specifically indicated, the following terms will have
the following meanings for all purposes of this Agreement:
“AEI” shall have the meaning ascribed to it in the Recitals.
“Affiliate” means, with respect to a given Person (in this definition, the
“Relevant Person”), any Person who (a) directly or indirectly, Controls, or is Controlled
by, or is under a common Control with, the Relevant Person or (b) from time to time, is managed by
(i) the same investment manager as the Relevant Person is managed by, or (ii) an investment manager
that is Controlled by the same Person that Controls the Relevant Person.
“Agreement” has the meaning ascribed to it in the preamble.
“Amalgamation” shall have the meaning ascribed to it in the
Recitals.
“Xxxxxxx Fund” means each of Xxxxxxx Global Special Situations Ireland Plc, EMDCD Ltd,
Xxxxxxx Global Special Situations Fund Limited, Xxxxxxx Global Special Situations Fund 2 Limited,
Fidelity Cayman Investment Company Limited, Asset Holder PCC No. 2 Limited in respect of Xxxxxxx
Emerging Economy Portfolio, Xxxxxxx Global Special Situations Fund 3 Limited Partnership and Asset
Holder PCC Limited in respect of Xxxxxxx Emerging Markets Liquid Investment Portfolio and any
Affiliate thereof.
“Commission” means the United States Securities and Exchange Commission, or any
successor governmental agency or authority.
“Company” has the meaning ascribed to it in the preamble and shall include the
Company’s successors by merger, acquisition, reorganization, conversion or otherwise.
“Company Shares” means the ordinary shares, par value $0.01 per share in the capital
of the Company.
“Control”, “Controls”, “Controlled”, “Controlling” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
policies or affairs of a Person, whether through beneficial ownership of voting securities, by
contract, or otherwise, or as agent, executor, trustee, or otherwise.
“Cutback Registration” means any Requested Registration or Piggyback Registration to
be effected as an underwritten Public Offering in which the Managing Underwriter with respect
thereto advises the Company and any Investor participating in such registration in writing that, in
its opinion, the number of securities requested to be included in such registration (including
securities of the Company which are not Registrable Securities) exceed the number which can be sold
in such offering or that the number of Registrable Securities proposed to be included in any such
Requested Registration or
16
Piggyback Registration would adversely affect the trading market for the Company’s equity
securities or the price per share of equity securities to be sold in such Public
Offering.
“Effective
Registration” means, subject to the last sentence of Section
1(f), a Requested Registration which (a) has been declared or ordered effective in
accordance with the rules of the Commission and (b) has been kept effective for the
period of time contemplated by Section 4(b) (except by reason of some act or omission on
the part of any Investor whose Registrable Securities are included therein).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
“Exchangeable Note” means any of the Zero Coupon Exchangeable Notes Due 2011
issued by Fidelity Cayman Investment Company Limited pursuant to that certain Note
Purchase Agreement, dated as of May 15, 2006, by and among Fidelity Cayman Investment
Company Limited and the purchasers identified therein, as amended and in effect from time
to time.
“Form F-3” means such form under the Securities Act as in effect on the date
of this Agreement or any successor or similar form under the Securities Act.
“Form S-3” means such form under the Securities Act as in effect on the date
of this Agreement or any successor or similar form under the Securities Act.
“Form F-4” means such form under the Securities Act as in effect on the date
of this Agreement or any successor or similar form under the Securities Act.
“Form S-4” means such form under the Securities Act as in effect on the date
of this Agreement or any successor or similar form under the Securities Act.
“Indemnified Party” means a party entitled to indemnity in accordance with
Section 7.
“Indemnifying Party” means a party obligated to provide indemnity in accordance with Section 7.
“Initiating
Investors” has the meaning ascribed to it in Section 1(a).
“Inspectors” has the meaning ascribed to it in Section 4(j).
“Investor(s)’” has the meaning ascribed to it in the preamble.
“Losses” has the meaning ascribed to it in Section 7(a).
“Managing Underwriter” means, with respect to any Public Offering, the
underwriter or underwriters managing such Public Offering, which underwriter or
underwriters shall be an internationally recognized investment banking firm or firms with
experience in the global energy infrastructure industry.
“NASD” means the National Association of Securities Dealers.
“Notice of Piggyback Registration” has the meaning ascribed to it in Section 2(a).
“Original Registration Rights Agreement” shall have the meaning ascribed to it in the
Recitals.
17
“Prisma” shall have the meaning ascribed to it in the Recitals.
“Person” means any natural person, association, corporation, general
partnership, limited partnership, limited liability partnership, proprietorship, joint
venture, trust or any other entity, organization or Governmental Entity.
“Piggyback Investors” has the meaning ascribed to it in Section 2(a).
“Piggyback Registration” means any registration of equity securities of the
Company of the same
class as the Registrable Securities under the Securities Act (other than a
registration in respect of a dividend reinvestment or similar plan for stockholders of
the Company, registered offering of securities to employees pursuant to any employee
benefit plan or on Form F-4 or Form S-4, as applicable), whether for sale for the account
of the Company or for the account of any holder of securities of the Company (other than
Registrable Securities), including an initial Public Offering of securities and any
registration by the Company under the circumstances described in
Section 1(f).
“Prospectus” means the 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 such registration
statement and all other amendments and supplements to such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus. “Prospectus” shall also include any “issuer
free writing prospectus”, as defined in Rule 433 under the Securities Act, relating to
the Registrable Securities as well as any oral information conveyed by the Company or
anyone acting on its behalf at the time of the sale of any Registrable Securities.
“Public Offering” means an offering of Company Shares, either on behalf of
the Company or any of its securityholders, pursuant to an effective registration
statement under the Securities Act and following which Company Shares are listed on a
Specified Exchange.
“Records” has the meaning ascribed to it in Section 4(j).
“Registrable Securities” means (i) the Company Shares held by the Investors
(whether now or hereafter acquired) and (ii) any additional shares issued or distributed
by way of a dividend, stock split or other distribution in respect of such Company
Shares, or acquired by way of any rights offering or similar offering made in respect of
such Company Shares. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (i) a registration statement
with respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been distributed to the public pursuant to
Rule 144 or (iii) they shall have ceased to be issued.
“Registration Expenses” means all expenses incident to the Company’s
performance of or compliance with its obligations under this Agreement to effect the
registration of Registrable Securities in a Requested Registration, Piggyback
Registration or Shelf Registration, including, without limitation, all registration,
filing, securities exchange listing and NASD fees, all registration, filing,
qualification and other fees and expenses of complying with securities or blue sky laws,
all word processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or “cold comfort” letters
required by or incident to such performance and compliance, the reasonable fees and
disbursements of a single counsel retained by Investors and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions
18
and transfer taxes, if any, in respect of Registrable Securities, which shall be payable
by each holder thereof.
“Requested Registration” means any registration of Registrable Securities
under the Securities Act requested to be made in accordance with Section 1.
“Rule 144” means Rule 144 promulgated by the Commission under the Securities
Act, and any successor provision thereto.
“Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
“Shelf Registration” has the meaning ascribed to it in Section 3(a).
“Specified Exchange” means the American Stock Exchange, New York Stock
Exchange, Nasdaq, London Stock Exchange, Sao Paulo Stock Exchange or any other stock
exchange agreed by all the Investors after the date hereof.
(b) Unless the context of this Agreement otherwise requires (i) words of any gender
include each other gender; (ii) words using the singular or plural number also include the
plural or singular number, respectively; (iii) the terms “hereof”, “herein”, “hereby” and
derivative or similar words refer to this entire Agreement; and (iv) the term “Section”
refers to the specified Section of this Agreement. Whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless Business Days are
specified.
(c) Anything in this Agreement to the contrary notwithstanding, if the Company elects
to list Company Shares exclusively on a non-US Specified Exchange following its initial
Public Offering or the Initiating Investor(s) shall elect to list Company Shares
exclusively on a non-US Specified Exchange, to the extent relevant, references in the
various provisions of this Agreement to the Securities Act, the Exchange Act or any other
US federal or state securities laws shall be deemed to refer to the securities laws of the
jurisdiction in which such Specified Exchange is located, references to the Commission
shall be deemed to be references to the applicable regulatory authority in the
jurisdiction in which such Specified Exchange is located and references to a registration
statement shall be deemed to refer to such documents as may be required to be prepared and
filed by the Company to effect a listing on such Specified Exchange. The foregoing shall
not be construed to limit the right of any holder(s) of Registrable Securities to demand
that a Requested Registration be effected under the US securities laws provided that such
holders otherwise have the right to demand such Requested Registration.
13. Miscellaneous.
(a) Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) when delivered personally or
by prepaid overnight courier, with a record of receipt, (ii) the fourth day after
mailing if mailed by certified mail, return receipt requested or (iii) the day of
transmission, if sent by facsimile or telecopy during regular business hours or the
day after transmission, if sent after regular business hours (with a copy promptly
sent by prepaid overnight courier with record of receipt or by certified mail,
return receipt requested), to the parties at the following addresses or facsimile
numbers (or to such other address or facsimile number as a party may have specified
by notice given to the other party pursuant to this provision):
19
If to the Company:
Xxxxxxx Energy International
Xxxxxxx Xxxxx
00 Xxxx Xxxxxx
P.O. Box 190GT
Xxxxxx Town, Grand Cayman
Cayman Islands
Facsimile No.: 345-949-4901
Attention: Director
Xxxxxxx Xxxxx
00 Xxxx Xxxxxx
P.O. Box 190GT
Xxxxxx Town, Grand Cayman
Cayman Islands
Facsimile No.: 345-949-4901
Attention: Director
With a copy to:
Prisma
Energy International Services LLC
0000 Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
0000 Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
Xxxxxxxx
Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No: 000-000-0000
Attn: G. Xxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No: 000-000-0000
Attn: G. Xxxxx Xxxxxxx
If to any Investor, to the address the address set forth on Appendix A.
(b)
Entire Agreement; Amendments and Waiver. This Agreement (including the
schedules and exhibits hereto, if any) represent the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and this Agreement
can be amended, supplemented or changed, and any provision hereof can be waived, only with
the written consent of the Company and the holders of 80% of the Registrable Securities
then outstanding; provided, however, that no modification, amendment or
waiver shall be permitted that would adversely affect the rights of any Investor
differently than any other Investor without such Investor’s express written consent. No
action taken pursuant to this Agreement, including, without limitation, any investigation
by or on behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty, covenant or agreement
contained herein. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of such
breach or as a waiver of any other or subsequent breach. No failure on the part of any
party to exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such right, power
or remedy by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
(c) Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never comprised a
part hereof, and (iii) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the
20
illegal, invalid or unenforceable provision or by its severance herefrom. Upon
determination that any term or other provision of this Agreement is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this Agreement are
fulfilled to the greatest extent possible.
(d) Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and permitted assigns.
Except as contemplated in Section 11 of this Agreement, no assignment of this Agreement
or of any rights or obligations hereunder may be made by the Company without the prior
written consent of the other parties hereto and any attempted assignment without the
required consents shall be void. Notwithstanding the foregoing, the rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by any Investor to a transferee of at least 1% of the
outstanding Company Shares (or, if an Investor holds less than 1% of the outstanding
Company Shares, to a transferee of all Company Shares held by such Investor), provided (x)
the Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned and (y) the transferee agrees
in writing, in form and substance satisfactory to the Company, to be bound by the
provisions of this Agreement that apply to the Investors; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee is restricted
under the Securities Act. Notwithstanding the foregoing, the rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned to (i) any
Affiliate of an Investor to which such Investor may transfer Registrable Securities or
(ii) the holder of an Exchangeable Note upon exchange of such Exchangeable Note for
Company Shares in accordance with the terms thereof, in each case, without the consent of
any other party hereto, provided that (x) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of such
transferee and the securities with respect to which such registration rights are being
assigned and (y)any such transferee agrees in writing in form and substance satisfactory
to the Company to be bound by the provisions of this Agreement that apply to the
Investors.
(e) No Third Party Beneficiary. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto, their respective successors or
permitted assigns and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to indemnify under
Section 7.
(f) Table of Contents and Headings. The table of contents and section
headings of this Agreement are for reference purposes only and are to be given no effect
in the construction or interpretation of this Agreement.
(g) Specific Performance. The parties hereto hereby agree that, in the event
of any breach of any covenant or agreement contained in this Agreement, the non-breaching
party or parties shall be entitled to a decree or Order of specific performance or
mandamus to enforce the observance and performance of such covenant or agreement.
(h) Governing Law. THIS AGREEMENT, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY
OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY
OTHER
21
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL IN ALL
RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(j) Several Obligations. The obligations of each of the Investors under
this Agreement are several. Failure by an Investor to perform its obligations under this
Agreement does not affect the obligations of any other party under this Agreement. No
Investor is responsible for the obligations of any other Investor under
this Agreement. The rights of each Investor under or in connection with this Agreement are separate and
independent rights and any obligation arising under this Agreement to an Investor shall
be a separate and independent obligation. An Investor may, except as otherwise stated in
this Agreement, separately enforce its rights under this Agreement.
(k) Limitation of Liability. The Company and each Investor other than an
Xxxxxxx Fund hereby acknowledges that (i) Northern Trust (Guernsey) Limited is executing
this Agreement in its capacity as custodian to each of Xxxxxxx Global Special Situations
Fund Limited, Xxxxxxx Global Special Situations Fund 2 Limited, Xxxxxxx Global Special
Situations Fund 3 Limited Partnership, Asset Holder PCC No. 2 Limited in respect of
Xxxxxxx Emerging Economy Portfolio and Asset Holder PCC Limited in respect of Xxxxxxx
Emerging Markets Liquid Investment Portfolio and (ii) Northern Trust Company is
executing this Agreement in its capacity as custodian to EMDCD Ltd. The Company and each
Investor agrees that any representations, warranties and covenants contemplated by this
Agreement are made by each Investor severally and that all liabilities contemplated by
this Agreement are limited to the extent that such Investor’s assets can meet such
liabilities and indemnities.
(1) Aggregation of Stock. All Registrable Securities held or acquired by
Affiliates shall be aggregated together for the purpose of determining the availability
of any rights under this Agreement. Neither the Company nor any Person controlled by the
Company shall be deemed to be an Affiliate of any Investor for purposes of this
Agreement.
(m) Original Registration Rights Agreement Superseded. Each of the parties
hereto acknowledges and agrees that this Agreement amends, restates and supersedes the
Original Registration Rights Agreement in its entirety and that the Original
Registration Rights Agreement is of no further force and effect. From and after the date
hereof, this Agreement shall exclusively govern the relations of the parties with
respect to the subject matter hereof and no claims may be brought by any party against
another under or for breach of any provision of the Original Registration Rights
Agreement that has been changed pursuant to the terms of this Agreement
22
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party hereto as of the date first above written.
XXXXXXX ENERGY INTERNATIONAL |
||||
By: | /s/ Xxxxx xx Xxxx | |||
Name: | Xxxxx xx Xxxx | |||
Title: | Chief Executive Officer |
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXXXX GLOBAL SPECIAL SITUATIONS IRELAND PLC By: Xxxxxxx Investment Management Limited, as agent |
||||
By: | /s/ Xxxxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxxxx Xxxxxxxx | |||
Title: | Head of Risk Management and Control | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
EMDCD LTD |
||||
By: | The Northern Trust Company, London Branch | |||
Its: Custodian | ||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXXXX GLOBAL SPECIAL SITUATIONS FUND LIMITED |
||||
By: | Northern Trust (Guernsey) Limited | |||
Its: Custodian | ||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXXXX GLOBAL SPECIAL SITUATIONS FUND 2 LIMITED |
||||
By: | Northern Trust (Guernsey) Limited | |||
Its: Custodian | ||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXXXX GLOBAL SPECIAL SITUATIONS FUND 3 LIMITED PARTNERSHIP |
||||
By: | Northern Trust (Guernsey) Limited | |||
Its: | Custodian |
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
FIDELITY CAYMAN INVESTMENT COMPANY LIMITED |
||||
By: | /s/ Xxxxxx Xxxx | |||
Name: | Xxxxxx Xxxx | |||
Title: | Director | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
ASSET HOLDER PCC LIMITED IN
RESPECT OF
XXXXXXX EMERGING MARKETS LIQUID
INVESTMENT PORTFOLIO |
||||
By: | Northern Trust (Guernsey) Limited | |||
Its: |
Custodian |
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
ASSET HOLDER PCC NO. 2 LIMITED IN RESPECT OF XXXXXXX EMERGING ECONOMY PORTFOLIO |
||||
By: | Northern Trust (Guernsey) Limited | |||
Its: | Custodian |
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
CVI GVF (LUX) MASTER S. A X. X. |
||||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Manager | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
SHERBROOKE, LTD. |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
D. E. SHAW COMPOSITE SIDE POCKET
SERIES 2,
L.L.C. |
||||
By: | X. X. Xxxx & Co., L.L.C., as manager |
By: | /s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx | ||||
Authorized Signatory | ||||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
D. E. SHAW COMPOSITE SIDE POCKET SERIES 4, L.L.C. |
||||
By: | X. X. Xxxx & Co., L.L.C., as manager |
By: | /s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx | ||||
Authorized Signatory | ||||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXXXX SACHS CREDIT PARTNERS |
||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | MANAGING DIRECTOR | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
GOLDEN TREE 2004 TRUST |
||||
By: | GoldenTree Asset Management, L.P. acting in its capacity as Investment Advisor for an on behalf of GoldenTree 2004 Trust | |||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Authorized Signatory |
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT
XXXXX TEN LIMITED |
||||
By: | /s/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Director | |||
SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
AGREEMENT