Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 21, 1998 among
TA I Limited, a limited liability company organized under the laws of England
and Wales ("NEWCO 1"), XX XX Limited, a limited liability company organized
under the laws of England and Wales ("NEWCO 2" and, together with Newco 1, the
"ISSUERS"), and each of the holders of Registrable Securities (as defined below)
whose names appear on the signature pages hereof (the "PURCHASERS").
RECITALS
Pursuant to a Share Subscription Agreement dated as of the
date hereof among Newco 1, Newco 2 and the Purchasers (the "SUBSCRIPTION
AGREEMENT"), the Purchasers have agreed to subscribe for, in the aggregate,
9,666,667 ordinary shares, par value L0.10 per share, of Newco 1 (the "ORDINARY
SHARES") and 10,164,693 preferred shares, redemption value $25.00 per share, of
Newco 2 (the "PREFERRED SHARES").
Each Issuer desires to provide to the Purchasers and each
other Holder rights to registration under the Securities Act (as defined below)
of Registrable Securities, on the terms and subject to the conditions set forth
herein.
AGREEMENT
The rights and obligations of the parties to this Agreement
shall be conditioned upon the closing of the subscription and issuance of the
Ordinary Shares and Preferred Shares pursuant to the Subscription Agreement.
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following respective meanings:
"ADSs": American Depositary Shares, each representing one or
more Ordinary Shares or Preferred Shares and represented by American
Depositary Receipts of the relevant Issuer.
"CLASS": the Ordinary Shares or the Preferred Shares,
respectively, together with any ADSs representing Ordinary Shares or
Preferred Shares, as the case may be.
"DEMAND PARTY": (a) each of the Purchasers and (b) any other
Holder or Holders, including, without limitation, any Person that may
become an assignee of the rights of any of the Purchasers hereunder;
PROVIDED that to be a Demand Party under this clause (b), a Holder or
Holders must either individually or in aggregate with all other Holders
with whom it is acting together to demand registration own at least
20%, in the case of the first three demands, and 10%, in the case of
the final demand, of the total number of Registrable Securities of the
Class sought to be registered.
"EXCHANGE ACT": the U.S. Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a reference
to a particular section thereof shall
be deemed to include a reference to the comparable section, if any, of
any such similar federal statute.
"HOLDER": the Purchasers and any other holder of Registrable
Securities (including any direct or indirect transferee of any of the
Purchasers who agrees in writing to be bound by the provisions of this
Agreement).
"MAJORITY INTEREST": with respect to any registration of
shares of a Class, the Holders of a majority of the Registrable
Securities of such Class that have been requested to be included and
are included in a registration under this Agreement.
"OTHER HOLDERS": any Person that holds securities of the same
Class as the Registrable Securities and has rights to have such
securities registered under the Securities Act.
"PERSON": any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated
organization or government or any department or agency thereof.
"REGISTRABLE SECURITIES": any Ordinary Shares or Preferred
Shares acquired by the Purchasers from the Issuer thereof or any
affiliate of the Issuers, or ADSs representing any such securities, and
any Ordinary Shares, Preferred Shares or ADSs which may be issued or
distributed in respect thereof by way of stock dividend or stock split
or other distribution, recapitalization or reclassification. Any
particular Registrable Securities that are issued shall cease to be
Registrable Securities when (i) a registration statement with respect
to the sale by the Holder 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) such
securities shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) such
securities shall have been otherwise transferred, new certificates for
such securities not bearing a legend restricting further transfer shall
have been delivered by the relevant Issuer and subsequent disposition
of such securities shall not require registration or qualification of
such securities under the Securities Act or any state securities or
blue sky law then in force, or (iv) such securities shall have ceased
to be outstanding.
"REGISTRATION EXPENSES": any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees
(including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in Schedule E to the
By-laws of the NASD, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue
sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any
securities exchange pursuant to clause (viii) of Section 4 and, in the
case of Preferred Shares or ADSs representing Preferred Shares, all
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rating agency fees incurred in connection with obtaining a rating
thereof, (v) the fees and disbursements of counsel for the Issuer and
of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 6 in connection
with each such registration, (vii) all fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities,
including liability insurance if the relevant Issuer so desires or if
the underwriters so require, and the reasonable fees and expenses of
any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any, (viii) all fees and expenses incurred in
connection with the creation of ADSs, including the reasonable fees and
disbursements of the depositary for such ADSs that the relevant Issuer,
and not the depositary, is required to pay, and (ix) other reasonable
out-of-pocket expenses of the Holders (PROVIDED that such expenses
shall not include expenses of counsel other than those provided for in
clause (vi) above).
"SECURITIES ACT": the U.S. Securities Act of 1933, as amended,
or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to
the comparable section, if any, of any such similar federal statute.
"SEC": the U.S. Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or
the Exchange Act.
2. INCIDENTAL REGISTRATIONS. (a) RIGHT TO INCLUDE REGISTRABLE
SECURITIES. If either Issuer at any time after the date hereof proposes to
register shares of a Class (or any security which is convertible into or
exercisable or exchangeable for shares of such Class) under the Securities Act
(other than a registration on Form S-4, F-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account, in a manner which would permit registration of Registrable Securities
of such Class for sale to the public under the Securities Act, such issuer will,
at each such time, give prompt written notice to all Holders of its Registrable
Securities of such Class of its intention to do so and of such Holders' rights
under this Section 2. Upon the written request of any such Holder made within 15
days after the receipt of any such notice (which request shall specify the
Registrable Securities of such Class intended to be disposed of by such Holder),
the relevant Issuer will use its reasonable efforts to effect the registration
under the Securities Act of all Registrable Securities of such Class which it
has been so requested to register by the Holders thereof, to the extent
requisite to permit the disposition of such Registrable Securities so to be
registered; PROVIDED that:
(i) if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the relevant Issuer shall determine for any reason not to proceed with
the proposed registration of the securities, if any, to be sold by it,
such Issuer may, at its election, give written notice of such
determination to each Holder of Registrable Securities of such Class
and, thereupon, shall be relieved of its obligation to register any
Registrable Securities of such Class in connection with such
registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and
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(ii) if such registration involves an underwritten offering by
the relevant Issuer, all Holders requesting to be included in such
registration as provided herein must sell their Registrable Securities
to the underwriters selected by the relevant Issuer on the same terms
and conditions as apply to such Issuer, with such differences,
including any with respect to indemnification and liability insurance,
as may be customary or appropriate in combined primary and secondary
offerings.
If a registration requested pursuant to this Section 2(a) involves an
underwritten public offering, any Holder requesting to be included in such
registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration.
(b) EXPENSES. The relevant Issuer will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant to
this Section 2 involves an underwritten offering and the managing underwriter
advises the relevant Issuer in writing that, in its opinion, the number of
securities to be included in such registration exceeds the number which can be
sold in such offering so as to be reasonably likely to have an adverse effect on
the price, timing or distribution of the securities offered in such offering,
then the relevant Issuer will include in such registration (i) first, 100% of
the securities, if any, such Issuer proposes to sell and (ii) second, the number
of Registrable Securities and securities of the same Class as the Registrable
Securities which the Holders and Other Holders, as the case may be, have
requested to be included in such registration which, in the opinion of such
managing underwriter, can be sold without having the adverse effect referred to
above, such amount to be allocated pro rata among all requesting Holders and
Other Holders on the basis of the relative number of Registrable Securities of
the Class being registered and securities of such Class then held by each such
Holder and Other Holder (provided that any shares thereby allocated to any such
Holder or Other Holder that exceed such Holder's or Other Holder's request will
be reallocated among the remaining requesting Holders and Other Holders in like
manner).
3. REGISTRATION ON REQUEST. (a) REQUEST BY A DEMAND PARTY. Upon the
written request of any Demand Party at any time beginning 180 days after an
initial public offering in the United States of Ordinary Shares pursuant to a
registration statement that has been declared effective under the Securities Act
(the Demand Party making such written request, the "INITIATING DEMAND PARTY")
requesting that the relevant Issuer effect the registration under the Securities
Act of all or part of such Initiating Demand Party's Registrable Securities and
specifying the Class of Registrable Securities and the amount and intended
method of disposition thereof, the relevant Issuer of such Registrable
Securities will promptly give written notice of such requested registration to
all other Holders of Registrable Securities of such Class and to all Other
Holders of securities of such Class, and thereupon will, as expeditiously as
possible, use its reasonable efforts to effect the registration under the
Securities Act of:
(i) such Registrable Securities which such Issuer has been so
requested to register by the Initiating Demand Party (and, if such
request includes ADSs,
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the Ordinary Shares or Preferred Shares, as the case may be,
represented by such ADSs); and
(ii) all other Registrable Securities of the same Class and
securities of such Class as those that are to be registered at the
request of the Initiating Demand Party and which such Issuer has been
requested to register by any other Holder and any Other Holder by
written request given to such Issuer within 15 days after the giving of
such written notice by such Issuer (which request shall specify the
amount and intended method of disposition of such Registrable
Securities and securities of such Class),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities and
securities of such Class to be so registered; PROVIDED that:
(A) neither Issuer shall be obligated to effect any
registration of Registrable Securities under this Section 3(a) unless
the Demand Party requests that such Issuer register at least 20% in the
case of the first three demands, and 10% in the case of the final
demand, of the total number of Registrable Securities of the applicable
Class; and
(B) neither Issuer shall be obligated to effect any
registration of Registrable Securities under this Section 3(a) at the
request of a Demand Party after a total of four registrations of
Registrable Securities shall have been effected by the Issuers at the
request of Demand Parties;
and, PROVIDED, FURTHER, that the Issuer of such Class shall not be obligated to
file a registration statement relating to any registration request under this
Section 3(a):
(x) within a period of six months after the effective date of
any other registration statement relating to any registration request
under this Section 3(a) which was not effected on Form S-3 or Form F-3
(or any successor or similar short-form registration statement) or
relating to any registration effected under Section 2;
(y) if with respect thereto the managing underwriter, the SEC,
the Securities Act or the rules and regulations thereunder, or the form
on which the registration statement is to be filed, would require the
conduct of an audit other than the regular audit conducted by the
Issuer at the end of its fiscal year, in which case the filing may be
delayed until the completion of such regular audit; or
(z) if such Issuer is in possession of material non-public
information and the Board of Directors of such Issuer determines in
good faith that disclosure of such information would not be in the best
interests of such Issuer and its shareholders, in which case the filing
of the registration statement may be delayed until the earlier of the
second business day after such conditions shall have ceased to exist
and the 90th day after receipt by such Issuer of the written request
from a Demand Holder to register Registrable Securities under this
Section 3(a).
(b) REGISTRATION STATEMENT FORM. If any registration requested pursuant
to this Section 3 which is proposed by the relevant Issuer to be effected by the
filing of a registration
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statement on Form S-3 or Form F-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise such Issuer in writing
that, in its opinion, the use of another form of registration statement is of
material importance to the success of such proposed offering, then such
registration shall be effected on such other form.
(c) EXPENSES. The relevant Issuer will pay all Registration Expenses in
connection with a total of up to four registrations of Registrable Securities
under this Section 3 upon the request of a Demand Party. All expenses for any
subsequent registrations of Registrable Securities pursuant to this Section 3
shall be paid pro rata by the relevant Issuer and all other Persons (including
the Holders) participating in such registration on the basis of the relative
number of shares of the applicable Class of each such Person whose securities
are included in such registration.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested pursuant
to this Section 3 will not be deemed to have been effected unless it has become
effective; PROVIDED that if, within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be deemed not to have
been effected.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant to
this Section 3 involves an underwritten offering, the relevant Issuer shall have
the right to select the investment banker or bankers and managers to administer
the offering; PROVIDED, HOWEVER, that such investment banker or bankers and
managers shall be reasonably satisfactory to a Majority Interest of the
applicable Class.
(f) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the relevant Issuer in writing that, in its opinion, the
number of securities requested to be included in such registration (including
securities of such Issuer which are not Registrable Securities) exceeds the
number which can be sold in such offering without a reasonable likelihood of an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then such Issuer will include in such registration only the
Registrable Securities requested to be included in such registration. If the
number of Registrable Securities requested to be included in such registration
and securities of Other Holders requested to be included in such registration
exceeds the number which, in the opinion of such managing underwriter, can be
sold in such offering without a reasonable likelihood of an adverse effect on
the price, timing or distribution of the securities offered in such offering,
then the number of such Registrable Securities and securities of Other Holders
to be included in such registration shall be allocated first, to the requesting
Holders and, second, to the Other Holders on the basis of the relative number of
Registrable Securities and securities of Other Holders, as the case may be,
requested to be included in such registration of the applicable Class then held
by each such Holder and Other Holder (PROVIDED that any shares thereby allocated
to any such Holder or Other Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders and Other Holders in like
manner). If the number of Registrable Securities requested to be included in
such registration and securities of Other Holders requested to be included in
such registration
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is less than the number which, in the opinion of the managing underwriter, can
be sold without the adverse effect referred to above, the relevant Issuer may
include in such registration securities of the same Class up to the number of
such securities that, in the opinion of the underwriter, can be sold without
having such adverse effect.
4. REGISTRATION PROCEDURES. If and whenever an Issuer is required to
use its reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
such Issuer shall, as expeditiously as possible:
(i) prepare and, in any event within 90 days, file and, in the
case of ADSs, cause to be filed with the SEC a registration statement
or statements, if necessary, covering such Registrable Securities and
use its best efforts to cause such registration statement or statements
to become effective; PROVIDED that such Issuer may discontinue any
registration of its securities which is being effected pursuant to
Section 2 at any time prior to the effective date of the registration
statement relating thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement or statements and the
prospectus used in connection therewith as may be necessary to keep
such registration statement or statements effective for a period not in
excess of 270 days and to comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations of the SEC
thereunder with respect to the disposition of all securities covered by
such registration statement or statements during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement or statements;
PROVIDED that before filing a registration statement or prospectus, or
any amendments or supplements thereto, such Issuer will furnish to
counsel selected pursuant to Section (6) hereof by the Holders of the
Registrable Securities covered by such registration statement to
represent such Holders, copies of all documents proposed to be filed,
which documents will be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities
such number of copies of such registration statement or statements and
of each amendment and supplement thereto (in each case including all
exhibits filed therewith, including any documents incorporated by
reference), such number of copies of the prospectus included in such
registration statement or statements (including each preliminary
prospectus and summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(iv) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration in such
jurisdictions as each seller shall reasonably request, and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller,
except that such Issuer shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this clause (iv), it
would
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not be obligated to be so qualified, to subject itself to taxation in
any such jurisdiction or to consent to general service of process in
any such jurisdiction;
(v) use its reasonable efforts to cause such Registrable
Securities covered by such registration statement or statements to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities;
(vi) promptly notify each seller of such Registrable
Securities covered by such registration statement or statements at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act within the appropriate period mentioned in
clause (ii) of this Section 4, of such Issuer's becoming aware that the
prospectus included in any such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such seller,
promptly prepare and furnish to such seller a reasonable number of
copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(vii) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the earliest effective date of the registration
statement or statements, an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(viii) (A) use its reasonable efforts to list such Registrable
Securities on any securities exchange on which the Ordinary Shares or
ADSs representing Ordinary Shares are then listed if such Registrable
Securities are not already so listed and if such listing is then
permitted under the rules of such exchange and (B) use its reasonable
efforts to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form), which may include
indemnification provisions in favor of underwriters and other persons
in addition to, or in substitution for the provisions of Section 5
hereof, and take such other actions as the seller or sellers of a
Majority Interest of such Registrable Securities or the underwriters,
if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(x) if requested by a Majority Interest of such Registrable
Securities, enter into a deposit agreement in customary form for the
creation of ADSs representing Ordinary Shares or Preferred Shares, as
the case may be, and take all other actions as a Majority Interest of
such Registrable Securities reasonably requests in order to facilitate
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the creation and issuance of such ADSs; PROVIDED that after ADSs
representing Ordinary Shares or Preferred Shares, as the case may be,
have been created, such Issuer shall only be required pursuant to this
clause (x) to create additional ADSs representing the same number of
Ordinary Shares or Preferred Shares, as the case may be, per ADS as the
ADSs that previously were created and issued;
(xi) obtain a "cold comfort" letter or letters from its
independent public accounts in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the seller or
sellers of a Majority Interest of such Registrable Securities shall
reasonably request;
(xii) make available for inspection by any seller of such
Registrable Securities covered by such registration statement or
statements, by any underwriter participating in any disposition to be
effected pursuant to such registration statement or statements, by any
depositary with respect to Registrable Securities covered by such
registration statement or statements and by any attorney, accountant or
other agent retained by any such seller or any such underwriter or
depositary, all pertinent financial and other records, pertinent
corporate documents and properties of such Issuer, and cause all of
such Issuer's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement or statements;
(xiii) notify counsel (selected pursuant to Section 6 hereof)
for the Holders of Registrable Securities included in such registration
statement or statements and the managing underwriter or agent,
immediately, and confirm the notice in writing (A) when such
registration statement or statements, or any post-effective amendment
thereto, shall have become effective, or any supplement to any
prospectus or any amendment to any prospectus shall have been filed,
(B) of the receipt of any comments from the SEC, (C) of any request of
the SEC to amend such registration statement or statements or amend or
supplement any prospectus or for additional information, and (D) of the
issuance by the SEC of any stop order suspending the effectiveness of
such registration statement or statements or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension
of the qualification of such registration statement or statements for
offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes;
(xiv) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of such registration
statement or statements or of any order preventing or suspending the
use of any preliminary prospectus and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest possible
moment;
(xv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by such registration statement
or statements, promptly incorporate and, in the case of ADSs, cause to
be incorporated in a prospectus supplement or post-effective amendment
such information as the managing underwriter or agent or such Holder
reasonably requests to be included therein, including, without
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limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price
being paid therefor by such underwriter or agent and with respect to
any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering; and make and, in the case of
ADSs, cause to be made all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after
being notified of the matters incorporated in such prospectus
supplement or post-effective amendment;
(xvi) cooperate with the Holders of Registrable Securities
covered by such registration statement or statements and the managing
underwriter or agent or depositary, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing the securities to be sold under such registration
statement or statements, and enable such securities to be in such
denominations and registered in such names as the managing underwriter
or agent or depositary, if any, or such Holders may request;
(xvii) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent or
depositary, if any, an opinion or opinions from counsel for such Issuer
in customary form and in form, substance and scope reasonably
satisfactory to such Holders, underwriters or agents or depositary and
their counsel; and
(xviii) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with
any filings required to be made with the NASD.
Each Issuer may require each seller of Registrable Securities as to
which any registration is being effected to furnish such Issuer with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as such
Issuer may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from an Issuer of the happening of any event of the kind described in
clause (vi) of this Section 4, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement or
statements covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause (vi)
of this Section 4, and, if so directed by such Issuer, such Holder will deliver
to such Issuer (at such Issuer's expense) all copies, other than permanent file
copies then in such Holder's possession, of any prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event such Issuer shall give any such notice, the period mentioned in clause
(ii) of this Section 4 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (vi)
of this Section 4 and including the date when each seller of Registrable
Securities covered by such registration statement or statements shall have
received the copies of the supplemented or amended prospectus contemplated by
clause (vi) of this Section 4.
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5. INDEMNIFICATION. (a) INDEMNIFICATION BY AN ISSUER. In the event of
any registration of any securities of an Issuer under the Securities Act
pursuant to Section 2 or 3, such Issuer will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by any such registration statement, each affiliate of such
seller and their respective directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act (collectively, the "INDEMNIFIED
PARTIES"), against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including reasonable attorney's fees and reasonable
expenses of investigation) to which such Indemnified Party may become subject
under the Securities Act, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof,
whether or not such Indemnified Party is a party thereto) arise out of or are
based upon (a) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) 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 light of the circumstances under which they were made) not
misleading, and such Issuer will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending against any such loss, claim, liability, action or proceeding;
PROVIDED that such Issuer shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in any such registration statement or amendment or supplement thereto or in
any such preliminary, final or summary prospectus in reliance upon and in
conformity with written information relating to such seller furnished to such
Issuer through an instrument duly executed by such seller specifically stating
that it is for use in the preparation thereof; and PROVIDED, FURTHER, that such
Issuer will not be liable to any Person who participates as an underwriter in
the offering or sale of Registrable Securities or any other Person, if any, who
controls such underwriter within the meaning of the Securities Act, under the
indemnity agreement in this Section 5(a) with respect to any preliminary
prospectus or the final prospectus or the final prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim,
damage or liability of such underwriter or controlling Person results from the
fact that such underwriter sold Registrable Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the final prospectus or of the final prospectus as then amended or
supplemented, whichever is most recent, if such Issuer has previously furnished
copies thereof to such underwriter. For purposes of the last proviso to the
immediately preceding sentence, the term "prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Person who
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter within the meaning of
the Securities Act, shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any preliminary
prospectus or the final prospectus to any person other than a person to whom
such underwriter had delivered such incorporated document or documents in
response to a written request therefor. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or any Indemnified Party and shall survive the transfer of such
securities by such seller.
11
(a) INDEMNIFICATION BY THE SELLER. An Issuer may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 hereof, that such Issuer shall have received
an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 5(a)) such Issuer or
any of its affiliates, directors, officers or controlling Persons and all other
prospective sellers with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement, if such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information relating to such seller or underwriter furnished to such Issuer
through an instrument duly executed by such seller or underwriter specifically
stating that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Issuer or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(b) NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; PROVIDED that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the foregoing provisions of this
Section 5, 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, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and 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 will 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. No indemnifying party will consent to entry of any judgment or
enter into any settlement 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.
(c) CONTRIBUTION. If the indemnification provided for in this Section 5
from the indemnifying party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such
12
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and Indemnified Parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and Indemnified Parties 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 to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or Indemnified Parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party under this Section 5(d) as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
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 which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Issuer of the applicable Class and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
(e) NON-EXCLUSIVITY. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. SELECTION OF COUNSEL. In connection with any registration of
Registrable Securities pursuant to Sections 2 and 3 hereof, the Holders of a
Majority Interest of the Registrable Securities covered by any such registration
may select one U.S. counsel to represent all Holders of Registrable Securities
covered by such registration, and to the extent necessary, one U.K. counsel.
7. RULE 144. The Issuers hereby covenant with the Holders of
Registrable Securities that if and to the extent it shall be required to do so
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, as the same may be amended and in effect at the time
(the "Exchange Act"), the Issuers shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including, but not
limited to, the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the SEC under the Securities
Act) and shall take such further action as any Holder of Registrable Securities
may reasonably request all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by
13
the SEC. Upon the request of any Holder of Registrable Securities, the Issuers
shall deliver to such Holder a written statement as to whether it has complied
with such requirements.
8. HOLDBACK AGREEMENT. (a) If any registration of Registrable
Securities shall be in connection with an underwritten public offering, each
Holder of Registrable Securities of the applicable Class agrees not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any equity securities of the applicable Issuer, or of any
security convertible into or exchangeable or exercisable for any equity security
of the applicable Issuer (in each case, other than as part of such underwritten
public offering), within 7 days before or such period not to exceed 135 days as
the underwriting agreement may require (or such lesser period as the managing
underwriters may permit) after the effective date of such registration (except
as part of such registration), and each Issuer hereby also so agrees and agrees
to cause each other holder of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of such
Issuer purchased from such Issuer or any of its affiliates (at any time other
than in a public offering) to so agree.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended and each
Issuer may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if such Issuer shall have obtained the
written consent to such amendment, action or omission to act, of a Majority
Interest of Registrable Securities of each Class. Each Holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any consent
authorized by this Section 7(c), whether or not such Registrable Securities
shall have been marked to indicate such consent.
(b) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Issuers shall also be
for the benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein.
(c) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) as
follows (or at such other address for a party as shall be specified in a notice
given in accordance with this section):
if to either Issuer, to:
Kohlberg Kravis Xxxxxxx & Co.
0 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
with a copy to:
14
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: 00-000-000-0000
if to any Holder, to the address of such other Holder as shown in the
stock record book of the applicable Issuer,
or to such other address as any of the above shall have designated in writing to
all of the other above.
(d) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(e) SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be deemed to be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provisions were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
(f) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
(g) GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement will be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the principles of conflict of laws thereof. The
parties to this Agreement hereby agree to submit to the jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof in any
action or proceeding arising out of or relating to this Agreement. The parties
hereto irrevocably and unconditionally waive trial by jury in any legal action
or proceeding in relation to this Agreement and for any counterclaim therein.
(h) APPOINTMENT OF AGENT FOR SERVICE; WAIVER. Each of Guardian Royal
Exchange plc and Royal and Sun Alliance plc, to the fullest extent permitted by
applicable law, irrevocably and fully waives the defense of an inconvenient
forum to the maintenance of such legal action or proceeding and will hereby
irrevocably designate and appoint within ten Business Days of the date hereof CT
Corporation (the "AUTHORIZED AGENT"), as its authorized agent upon whom process
may be served in any such suit or proceeding. Each such Purchaser represents
that it has notified the Authorized Agent of such designation and appointment
and that the Authorized Agent has accepted the same in writing. Each such
Purchaser hereby irrevocably authorizes and directs its Authorized Agent to
accept such service. Each such Purchaser further agrees that service of process
upon its Authorized Agent and written notice of said service to such Purchaser
mailed by first class mail or delivered to its Authorized Agent shall be deemed
in
15
every respect effective service of process upon such Purchaser in any such suit
or proceeding. Nothing herein shall affect the right of any person to serve
process in any other manner permitted by law. Each such Purchaser agrees that a
final action in any such suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other lawful
manner. Notwithstanding the foregoing, any action against any such Purchaser
arising out of or based on this Agreement or the transactions contemplated
hereby may also be instituted in any competent court in the United Kingdom, and
each such Purchaser expressly accepts the jurisdiction of any such court in any
such action. Each such Purchaser hereby irrevocably waives, to the extent
permitted by law, any immunity to jurisdiction to which it may otherwise be
entitled (including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Agreement or the transactions
contemplated thereby.
(i) SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that they shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.
16
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
ISSUERS:
TA I LIMITED
By /s/ Xxxxx Xxxxxxx
------------------
Name: Xxxxx Xxxxxxx
Title:
XX XX LIMITED
By /s/ Xxxxx Xxxxxxx
------------------
Name: Xxxxx Xxxxxxx
Title:
17
PURCHASERS:
ROYAL & SUN ALLIANCE INSURANCE GROUP PLC
By /s/ Xxxx Xxxxxxx
------------------
Name: Xxxx Xxxxxxx
Title:
GUARDIAN ROYAL EXCHANGE PLC
By /s/ Xxxxxxx Xxxxxx
--------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Director-Investments
THE CHUBB CORPORATION
By /s/ Xxxxxx X. XxXxxxx, Xx.
----------------------------
Name: Xxxxxx X. XxXxxxx, Xx.
Title: Senior Vice President
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
THE TRAVELERS INDEMNITY COMPANY
By /s/ Xxxxx X. Fornsworth
-------------------------
Name: Xxxxx X. Fornsworth
Title: Second Vice President
18
