EXHIBIT 4.15
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AMONG
TPG GROWTH AC LTD.
TPG BIOTECH II, LTD.
AND
AGRIA CORPORATION
JUNE 22, 2007
TABLE OF CONTENTS
1. INTERPRETATION ........................................................ 1
1.1 Certain Definitions .............................................. 1
1.2 Interpretation ................................................... 3
1.3 Public Offering Jurisdiction ..................................... 3
2. RESTRICTIVE LEGEND .................................................... 3
3. PIGGYBACK REGISTRATION ................................................ 4
3.1 Notice ........................................................... 4
3.2 Underwriting ..................................................... 5
3.3 Not a Demand Registration ........................................ 6
4. DEMAND REGISTRATION ................................................... 6
4.1 Request for Registration ......................................... 6
4.2 Underwriting ..................................................... 6
4.3 Limitations on Demand Registration ............................... 7
5. REGISTRATION PROCEDURES ............................................... 8
5.1 Procedures ....................................................... 8
5.2 Restriction on Filing ............................................ 11
5.3 Reference to Holders ............................................. 11
6. EXPENSES OF REGISTRATION .............................................. 12
7. INDEMNIFICATION ....................................................... 12
7.1 Indemnification by the Company ................................... 12
7.2 Indemnification by the Holders ................................... 13
7.3 Indemnification Procedures ....................................... 13
7.4 Contribution ..................................................... 14
7.5 Survival ......................................................... 14
8. COMPANY UNDERTAKINGS .................................................. 14
8.1 No Inconsistent Agreements ....................................... 15
8.2 Rules 144 and 144A ............................................... 15
9. MISCELLANEOUS ......................................................... 15
9.1 Term ............................................................. 15
9.2 Successors and Assigns ........................................... 15
9.3 Governing Law .................................................... 16
9.4 Dispute Resolution ............................................... 16
9.5 Counterparts and Facsimile Execution ............................. 17
9.6 Titles and Subtitles; References ................................. 17
9.7 Notices .......................................................... 17
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9.8 Attorney's Fees .................................................. 18
9.9 Amendments and Waivers ........................................... 18
9.10 Severability ..................................................... 18
9.11 Entire Agreement ................................................. 18
9.12 Interpretation ................................................... 19
9.13 No Presumption ................................................... 19
9.14 Specific Performance ............................................. 19
9.15 Aggregation of Stock ............................................. 19
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of June 22, 2007, by and among Agria Corporaiton, an exempted company
incorporated in the Cayman Islands (the "Company"), and the investors listed on
the signature pages hereto (collectively, the "Investors"). The Company and the
Investors are referred to herein as "Parties" collectively and a "Party"
individually.
RECITALS
WHEREAS, the Company desires to issue Series A Preferred Shares, par
value US$0.001 per share (the "Preferred Shares"), and Brothers Capital Limited,
an exempted company incorporated in the British Virgin Islands and a shareholder
of the Company, desires to sell ordinary shares of the Company, par value
US$0.001 per share (the "Ordinary Shares"), to the Investors pursuant to the
Share Purchase Agreement (the "Share Purchase Agreement") dated as of June 22,
2007 by and among the Company, the Company Warrantors set forth in Schedule 1.1
to the Share Purchase Agreement and the Investors; and
WHEREAS, in connection with the purchase and sale of the Investor
Shares pursuant to the Share Purchase Agreement, the Company and the Investors
desire to enter into this Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and adequacy
of which hereby is acknowledged, the parties hereto agree as follows:
1. INTERPRETATION
1.1 Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Adverse Disclosure" shall mean public disclosure of material
non-public information that in the good faith judgment of a majority of the
Board of Directors of the Company, after consultation with outside counsel to
the Company, (i) would be required to be made in any registration statement
filed by the Company so that such registration statement would be not false or
misleading in any material respect, (ii) would not be required to be made at
such time but for the filing or publication of such registration statement, and
(iii) the Company has a bona fide business purpose for not disclosing publicly.
(b) "Affiliate" of any person shall mean any person that, alone or
together with any other person, directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
such person. For purposes of this definition, "control" means, when used with
respect to any person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person,
whether through the ownership of voting securities, by contract, or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
(c) "Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time.
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(d) "Form S-3/F-3" shall mean Form F-3 or Form S-3, as applicable,
promulgated by the SEC under the Securities Act or any successor form or
substantially similar form then in effect.
(e) "Free Writing Prospectus" shall mean any free writing prospectus
(as defined in Rule 405 under the Securities Act) prepared by or on behalf of
the Company or used or referred to by the Company in connection with any
registrations pursuant to this Agreement.
(f) "Holders" shall mean the Investors and other holders of the
Registrable Securities in accordance with this Agreement.
(g) "Initiating Holders" shall mean the Holders who are the holders of
at least 30% of the then outstanding Registrable Securities.
(h) "Investor Shares" shall mean the Preferred Shares and the Ordinary
Shares, each as purchased by the Investors in accordance with the Share Purchase
Agreement.
(i) The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (or other applicable non-U.S. securities laws
and regulations, as the case may be), and the declaration or ordering of the
effectiveness of that registration statement.
(j) "Registrable Securities" shall mean (i) the Ordinary Shares
acquired by the Investors pursuant to the Share Purchase Agreement and any
Ordinary Shares hereafter acquired by any Investor prior to the initial public
offering of the Ordinary Shares of the Company pursuant to an effective
registration statement filed under the Securities Act, including any Ordinary
Shares issuable or issued upon conversion of the Preferred Shares, and (ii) any
Ordinary Shares issued as (or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or by way of stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise with respect to, or in exchange for, or in
replacement of, the securities referenced in (i) above. For purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when;
(A) they have been sold pursuant to a registration statement with respect to the
sale of securities which shall have become effective under the Securities Act or
other applicable non-U.S. securities laws and regulations, (B) they have been
otherwise sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act so that (x) all transfer
restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale and (y) subsequent disposition of such securities
shall not require registration or qualification under the Securities Act or
other applicable non-U.S. securities laws and regulations or similar state law
or (C) with respect to a single Holder, in the opinion of counsel reasonably
satisfactory to the Company and such Holder, there is no limitation as to the
volume of the Registrable Securities owned by such single Holder that may be
sold in a single sale pursuant to Rule 144 under the Securities Act.
(k) "Shareholders Agreement" shall mean the shareholders agreement
dated June 22, 2007, among Brothers Capital Limited, the Investors and the
Company.
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(l) "Securities Act" shall mean the United States Securities Act of
1933, as amended, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect at the time.
(m) "SEC" shall mean the United States Securities and Exchange
Commission.
1.2 Interpretation.
For all purposes of this Agreement, except as otherwise expressly
provided, the terms defined in Section 1.1 shall have the meanings assigned to
them in this Section 1 and capitalized terms used in this Agreement but not
otherwise defined herein shall have the meanings ascribed to them in the Share
Purchase Agreement.
1.3 Public Offering Jurisdiction.
The terms of this Agreement are drafted primarily in contemplation of
an offering of Ordinary Shares in the United States of America. The parties
recognize, however, the possibility that securities may be qualified or
registered in a jurisdiction other than the United States of America for
offering to the public or that the Company might seek to effect an offering in
the United States of America in the form of American Depositary Receipts or
American Depositary Shares. Accordingly,
(a) It is their intention that, whenever this Agreement refers to a
law or institution of the United States of America but the parties wish to
effectuate qualification or Registration in a different jurisdiction, reference
in this Agreement to the laws or institutions of the United States shall be read
as referring, mutatis mutandis, to the comparable laws or institutions of the
jurisdiction in question; and
(b) It is agreed that the Company will not undertake any listing of
American Depositary Receipts, American Depositary Shares or any other security
derivative of the Ordinary Shares unless arrangements have been made reasonably
satisfactory to the Investors to ensure that the effect of this Agreement will
be realized and that the Company is committed to take such actions as are
necessary such that the Investors will enjoy rights corresponding to the rights
hereunder to sell their Registrable Securities in a public offering in the
United States of America as if the Company had listed Ordinary Shares in lieu of
such derivative securities.
2. RESTRICTIVE LEGEND
Hereinafter, each certificate representing (i) the Investor Shares,
(ii) the Registrable Securities, and (iii) any other securities issued in
respect of the Investor Shares or the Registrable Securities upon any stock
split, stock dividend, combination of shares, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted below or
unless the securities evidenced by such certificate shall have been registered
under the Securities Act) be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
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OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER THE SECURITIES ACT OR
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
SUCH REGISTRATION REQUIREMENTS.
IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE RESTRICTIONS CONTAINED IN A SHAREHOLDERS AGREEMENT
DATED AS OF JUNE 22, 2007, AS AMENDED FROM TIME TO TIME, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY AND
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE COMPANY AT THE PRINCIPAL EXECUTIVE
OFFICE OF THE COMPANY.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if, with such request, the
Company shall have received either (i) a written opinion of legal counsel to the
holder, addressed to the Company and reasonably satisfactory in form and
substance to the Company's counsel, to the effect that the proposed transfer of
such securities may be effected without registration under the Securities Act or
(ii) a "no-action" letter from the SEC to the effect that the distribution of
such securities without registration will not result in a recommendation by the
staff of the SEC that action be taken with respect thereto, except that any such
transfer legend shall be removed in a transfer pursuant to Rule 144 or an
effective registration statement, in which case no such legal opinion or
"no-action" letter shall be required.
3. PIGGYBACK REGISTRATION
3.1 Notice.
If the Company at any time proposes to register (including for this
purpose a registration effected by the Company for holders of its securities
other than the Holders) any of its securities under the Securities Act or other
applicable non-U.S. securities laws and regulations, as the case may be (other
than (x) a registration relating solely to the sale of securities to
participants in a Company stock plan or other employee benefit plan arrangement,
(y) a registration relating to a corporate reorganization or other transaction
under Rule 145 of the Securities Act or (z) a registration on Form S-8 or any
successor form to such form), the Company shall promptly, but in no event less
than 30 days prior to filing any registration statement, give each Holder
written notice of its intention to undertake such registration and of such
Holder's rights under this Section 3.1. Upon the written request of any Holder
given within 10 days after receipt of such notice, the Company shall, subject to
the provisions of Section 3.2, effect the registration under the Securities Act
(or other applicable non-U.S. securities laws and regulations, as the case may
be) of all of the Registrable Securities that each such Holder has requested to
be registered, by inclusion of such Registrable Securities in the registration
statement that covers the securities that the Company proposes to register (an
"Incidental Registration"). 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 Company
shall determine
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for any reason either not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder and, (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), 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, provided, however, that in each case of (i) and (ii), if and
when the Company shall restart or resume such registration process, each Holder
shall continue to be entitled to exercise its piggyback registration rights in
accordance with this Section 3 in such resumed or delayed registration of such
other securities.
3.2 Underwriting.
(a) In connection with any offering involving an underwriting of the
Company's securities, the Company shall not be required under this Section 3 to
include any Registrable Securities of a Holder in such underwriting unless such
Holder enters into an underwriting agreement in customary form with an
underwriter or underwriters selected by the Company, on terms and conditions
approved by the Company; provided, that such underwriting agreement shall not
impair the indemnification rights of the Holders granted under Section 7; and
provided further, that no Holder shall be required to make any representations
or warranties to, or agreements with, the Company or any underwriter in a
registration other than customary representations, warranties and agreements
relating to information regarding such Holder contained in a writing furnished
by such Holder to the Company expressly for use in the related registration
statement or prospectus, such Holder's title to the Registrable Securities and
authority to enter into the underwriting agreement, such Holder's intended
method of distribution and any other representations required by applicable law.
(b) If the total amount or kind of securities, including Registrable
Securities, requested by security holders to be included in such offering
exceeds the amount or kind of securities that the underwriters (or, in the case
of an Incidental Registration not being underwritten, the Company) determine in
good faith can be sold in the offering, then the Company shall be required to
include in the offering only that number or kind of securities that the
underwriters (or, in the case of an Incidental Registration not being
underwritten, the Company) determine in good faith will not have a material
adverse effect on the price, timing or distribution of the securities to be
offered. The securities of each class to be included in such registration shall
be allocated as follows: (i) first, 100% of the securities that the Company has
proposed to sell shall be included therein; and (ii) second, and only if all the
securities referenced in clause (i) have been included, the number of
Registrable Securities of such class and other securities of such class held by
other persons that have a contractual right to participate in such registration
that, in the opinion of such underwriters (or, in the case of an Incidental
Registration not being underwritten, the Company), can be sold without having a
material adverse effect on such registration shall be included therein, with
such number to be allocated pro rata among the Holders and such other persons
which have requested participation in the Incidental Registration (based, for
each such Holder or person on the percentage derived by dividing (x) the number
of Registrable Securities of such class (and other securities of such class)
which such Holder (or person) has requested to include in such Incidental
Registration by (y) the aggregate number of Registrable Securities of such class
and other securities of such class which all such Holders and other persons have
requested to include.
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(c) If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the underwriters, delivered at least 10 days prior to the effective date of the
registration statement, provided that, the Company shall be entitled to
reimbursement from the Holder of such withdrawn Registrable Securities for any
SEC registration fees incurred by the Company in connection with the
registration of such Registrable Securities.
3.3 Not a Demand Registration.
No registration effected under this Section 3 shall relieve the
Company of its obligation to effect any registration upon request under Article
4, nor shall any such registration under this Article 3 be deemed to have been
effected pursuant to Section 4. There shall be no limit on the number of times
the Holders may request registration of Registrable Securities under this
Article 3.
4. DEMAND REGISTRATION
4.1 Request for Registration.
Subject to the conditions of this Section 4, if the Company shall
receive at any time after 180 days following the date of the closing of the
Company's Qualifying IPO (or such shorter period as is agreed to by the Company
through a waiver of the lock-up agreement contained in Section 3.5 of the
Shareholders Agreement), a written request from the Initiating Holders that the
Company file a registration statement under the Securities Act (or other
applicable non-U.S. securities laws and regulations, as the case may be)
covering the registration of all or part of such Initiating Holders' Registrable
Securities (provided the Registrable Securities to be so registered (i) have an
estimated market value of at least $20 million in the aggregate or (ii)
represent all of the then outstanding Registrable Securities (provided such
outstanding Registrable Securities have an estimated market value of at least
$10 million in the aggregate), then the Company shall promptly give written
notice of such request to all Holders, and subject to the limitations of this
Article 4, use its reasonable best efforts to effect, as soon as practicable,
the registration under the Securities Act (or other applicable non-U.S.
securities laws and regulations, as the case may be) of all the Registrable
Securities that the Initiating Holders have requested to be registered and all
Registrable Securities that the other Holders request to be registered in a
written request received by the Company within 45 days of the receipt of the
Company's notice pursuant to this Section 4.1. The Company may also elect to
include in such registration additional securities, including securities to be
sold for the Company's own account or for the account of persons who are not
holders of Registrable Securities.
4.2 Underwriting.
(a) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwritten offering, they
shall so advise the Company as part of their request made pursuant to Section
4.1 and the Company shall include such information in the written notice to all
Holders referred to in Section 4.1. In such event the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwritten offering and the inclusion
of such Holder's Registrable Securities in such underwritten offering (unless
otherwise mutually agreed by a majority in interest of the Registrable
Securities held by the Initiating Holders and by such Holder).
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The Company and all Holders proposing to distribute their securities
through such underwritten offering shall enter into an underwriting agreement in
customary form (including customary commercial terms) with the underwriter or
underwriters selected by the Initiating Holders representing a majority in
interest of the Registrable Securities held by the Initiating Holders after
consulting with the Company (which underwriter or underwriters shall be
reasonably acceptable to the Company). The Company shall provide such
representations, warranties and other agreements as are generally prevailing in
agreements of this type; provided that such underwriting agreement shall not
impair the indemnification rights of the Holders granted under Section 7; and
provided further, that no Holder shall be required to make any representations
or warranties to, or agreements with, any underwriter(s) in a registration other
than customary representations, warranties and agreements relating to
information regarding such Holder contained in a writing furnished by such
Holder to the Company expressly for use in the related registration statement or
prospectus, such Holder's title to the Registrable Securities and authority to
enter into the underwriting agreement, such Holder's intended method of
distribution and any other representations required by applicable law.
(b) Notwithstanding any other provision of this Section 4, if the
managing underwriter(s) advises the Company that in its opinion, the number of
securities of the class requested to be included in the registration statement
(including securities of the Company for its own account or for the account of
other persons who are not holders of the Registrable Securities) exceeds the
number which can be sold in such offering without being likely to have a
significant adverse effect on the price, timing or distribution of the class of
securities to be offered, then the Company shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of securities that may be included in the underwritten offering shall
be reduced as required by the managing underwriter(s) and the Company will
include in such registration (i) first, the maximum number of Registrable
Securities requested to be included therein, pro rata among the respective
Holders thereof on the basis of the amount of Registrable Securities requested
to be included in such registration by each such Holder, and (ii) second, the
maximum amount of other securities requested to be included therein (including
any by the Company), pro rata among the holders of such other securities and the
Company, if applicable, on the basis of the amount of securities requested to be
included in such registration by each such holder and the Company, if
applicable.
Any Registrable Securities excluded or withdrawn from such
underwritten offering shall be withdrawn from the registration. If the managing
underwriter(s) has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and other persons which are not
holders of Registrable Securities may sell securities in such registered
underwritten offering if the managing underwriter(s) so agrees and if the number
of Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
4.3 Limitations on Demand Registration.
The Company shall not be required to effect a registration pursuant to
this Section 4:
(a) after the Company has effected two registrations pursuant to this
Article 4 (excluding registrations on Form F-3 (or any successor form under the
Securities Act), any similar short form registration statement under applicable
non-U.S. securities laws
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or regulations or registrations pursuant to Article 3 herein, which shall have
no such limit), and (A) the registration statements with respect thereto have
been declared or ordered effective and remain effective for not less than 180
days (or such shorter period as will terminate when all Registrable Securities
covered by such registration statement have been sold or withdrawn), or, if such
registration statement relates to an underwritten offering, such period as, in
the opinion of counsel for the underwriter or underwriters, is required by law
for the delivery of a prospectus in connection with the sale of Registrable
Securities provided that a registration which does not become effective after
the Company has filed a registration statement with respect thereto solely by
reason of the refusal to proceed of the Initiating Holders (other than a refusal
to proceed based upon the advice of counsel relating to a matter relating
primarily to the Company) shall be deemed to have been effected by the Company
at the request of such Initiating Holders unless the Initiating Holders shall
have elected to pay all Registration Expenses in connection with such
registration, (B) such registration statements are not subject to any stop
order, injunction or other order or requirement of the SEC or appropriate
non-U.S. governing body for any reason, and (C) the conditions to closing
specified in the underwriting agreement or purchase agreement entered into in
connection with each such registration are satisfied; or
(b) if the Company shall furnish to Holders requesting a registration
statement pursuant to this Article 4, a resolution of the Board of Directors
stating that in the good faith judgment of the Board of Directors of the
Company, effecting a registration at such time would require the Company to make
an Adverse Disclosure, in which event the Company shall have the right to defer
such filing for a period of not more than 40 days after receipt of the request
of the Initiating Holders, provided that the Company shall not be permitted to
do so more than three times in any 24-month period, with each such exercise of
this right to be separated by no less than 90 days, and provided further, that
during such 40 day period the Company shall not file a registration statement
with respect to the public offering of securities of the Company.
5. REGISTRATION PROCEDURES
5.1 Procedures.
If and whenever the Company is required by the provisions of Articles
3 or 4 to effect the registration of any Registrable Securities under the
Securities Act (or other applicable non-U.S. securities laws and regulations, as
the case may be), the Company will, as expeditiously as possible:
(a) prepare and file with the SEC (or such other appropriate non-U.S.
governing bodies, as the case may be) a registration statement with respect to
such Registrable Securities (in the case of a registration pursuant to Article
4, such filing to be made within 60 days after the initial request of one or
more Initiating Holders of Registrable Securities or such longer period agreed
to in writing by the Initiating Holders representing a majority in interest of
the Registrable Securities held by the Initiating Holders) and use its
reasonable best efforts to cause such registration statement to become
effective, and keep such registration statement effective for such period as is
required by this Agreement, provided that the Company may discontinue any
registration of its securities that are not Registrable Securities (and, under
the circumstances specified in Section 3.1 herein, its securities that are
Registrable Securities), provided, further that before filing such registration
statement or any amendments or supplements thereto, the Company will furnish to
counsel selected by the Holders of Registrable Securities that are to be
included in such registration
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copies of all such documents proposed to be filed, which documents will be
subject to the prior review and comment of such counsel;
(b) prepare and file with the SEC (or such other appropriate non-U.S.
governing bodies, as the case may be) such amendments and supplements to such
registration statement and the prospectus and all Free Writing Prospectus, if
any, used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act (or other applicable non-U.S.
securities laws and regulations, as the case may be) with respect to the
disposition of all securities covered by such registration statement;
(c) furnish to the Holders of Registrable Securities included in such
registration and each underwriter, if any, of the securities being sold by such
Holders, such number of conformed copies of such registration statement and of
each amendment and supplement thereto (in each case including all schedules and
exhibits), copies of the prospectus, including a preliminary prospectus, and any
Free Writing Prospectus related to such registration statement, in conformity
with the requirements of the Securities Act (or other applicable non-U.S.
securities laws and regulations, as the case may be);
(d) use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested in writing
by the Holders of the Registrable Securities included in such registration
statement and any underwriter of such securities, and take any other action
which may be reasonably necessary or advisable to keep such registration or
qualification in effect so as to enable such selling Holders and underwriters to
consummate the disposition in such jurisdictions of the securities owned by such
selling Holder, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify generally to do business as a
foreign corporation or to file a general consent to service of process in any
such jurisdictions or to take any action which would subject it to taxation in
any such jurisdiction where it is not then so subject;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with the managing
underwriter of such offering;
(f) furnish:
(i) to each Holder of Registrable Securities included in such
registration statement a signed counterpart, addressed to such selling Holders
and the underwriters, if any, of an opinion or opinions of counsel for the
Company, dated the effective date of such registration statement (or, if such
registration includes an underwritten public offering, an opinion or opinions
dated the date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to a majority of such selling Holders and
underwriters, if any, covering such matters as are customarily covered in
opinions of issuer's counsel; and
(ii) to the underwriters, if any, a signed counterpart (with
copies to the Holders of the Registrable Securities included in such
registration statement) of a "comfort" letter (or, in the case of any such
person which does not satisfy the conditions for receipt of a "comfort" letter
specified in Statement on Auditing Standards No. 72, as amended, an "agreed upon
procedures" letter), dated the effective date of such registration statement and
a "bring-down" letter of like kind dated the date of the closing under the
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underwriting agreement, signed by the independent public accountants who have
certified the Company's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein and any Free Writing
Prospectus related to such registration statement) and with respect to events
subsequent to the date of such financial statements, as are customarily covered
in accountants' letters delivered to the underwriters in underwritten public
offerings of securities (with, in the case of an "agreed upon procedures"
letter, such modifications or deletions as may be required under Statement on
Auditing Standards No. 35, as amended);
(g) notify the Holders of Registrable Securities included in such
registration statement and each underwriter, if any, promptly and confirm such
advice in writing promptly thereafter:
(i) when the registration statement, any prospectus or any Free
Writing Prospectus related thereto or post-effective amendment to the
registration statement has been filed, and, with respect to the registration
statement or any post-effective amendment thereto, when the same has become
effective;
(ii) of any request by the SEC or appropriate non-U.S. governing
bodies for amendments or supplements to the registration statement or the
prospectus or any Free Writing Prospectus or for additional information;
(iii) of the issuance by the SEC or appropriate non-U.S.
governing authority of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings by any person for
that purpose;
(iv) if at any time the representations and warranties of the
Company made as contemplated by Section 3.2(a) or 4.2(a) cease to be true and
correct; or
(v) 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 securities or blue sky laws of any jurisdiction or the initiation
or threat of any proceeding for such purpose;
(h) notify each Holder of Registrable Securities included in such
registration statement and each underwriter at any time when a prospectus
relating thereto is required to be delivered under the Securities Act (or other
applicable non-U.S. securities laws and regulations, as the case may be) upon
the Company's discovery that, or upon the happening of any event as a result of
which, the prospectus included in 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 each such Holder or underwriter prepare and furnish to such
Holder and underwriter a reasonable number of copies of a supplement to or
amendment of such prospectus or a Free Writing 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 of material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC or appropriate non-U.S. governing
bodies, and make
10
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 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 thereunder or any other applicable
non-U.S. securities laws and regulations, and will furnish to each selling
Holder at least five business days prior to the filing thereof a copy of any
such earnings statement and shall not make available to security holders any
such earnings statement to which Holders of at least a majority of the
Registrable Securities included in such registration statement shall have
reasonably objected on the grounds that such earnings statement does not comply
in all material respects with the requirements of the Securities Act or other
applicable non-U.S. securities laws or regulations;
(j) make available, upon reasonable advance notice and at reasonable
times, for inspection by a representative appointed by the Holders of a majority
of the Registrable Securities, any managing underwriter(s) participating in any
disposition pursuant to the registration statement and any attorney or
accountant retained by such selling Holders or managing underwriter(s), all
financial and other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such person in connection with such
registration as shall be necessary to permit a reasonable investigation within
the meaning of Section 11 of the Securities Act (subject to the entry by each
party referred to in this clause (j) into customary confidentiality agreements
in a form reasonably acceptable to the Company);
(k) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible moment;
(l) use its reasonable best efforts to cause all such Registrable
Securities registered under such registration statement to be listed and quoted
on each securities exchange and each inter-dealer quotation system on which
similar securities issued by the Company are then listed; and
(m) provide and maintain a transfer agent and registrar for all
Registrable Securities registered under the registration statement and use its
reasonable best efforts to provide a Committee on Uniform Security
Identification Procedures number for all such Registrable Securities, in each
case from and after a date no later than the effective date of such registration
statement.
5.2 Restriction on Filing.
The Company will not file any registration statement pursuant to
Article 4 or amendment thereto or any prospectus or Free Writing Prospectus
(including such documents incorporated by reference and proposed to be filed
after the initial filing of the registration statement) to which the Holders of
at least a majority of the Registrable Securities included in such registration
statement or the underwriter or underwriters, if any, shall reasonably object,
provided that the Company may file such document in a form required by
applicable law or upon the advice of its counsel.
5.3 Reference to Holders.
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If any such registration statement refers to any Holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or other applicable non-U.S. securities laws or
regulations then in force, the deletion of the reference to such Holder.
6. EXPENSES OF REGISTRATION
The Company shall pay all expenses (other than underwriting discounts
and commissions) incurred in connection with registrations of Registrable
Securities pursuant to this Agreement and set forth in this paragraph
("Registration Expenses"). Such expenses are: all registration and filing fees,
all stock exchange listing fees, all fees associated with filings required to be
made with the National Association of Securities Dealers, Inc., all fees and
expenses of complying with state securities or blue sky laws, printers' fees,
fees and disbursement of the independent public accountants for the Company
(including the expenses of any comfort letters required by the Company's
performance of and compliance with its obligations under this Agreement) and
fees and disbursements of counsel for the Company.
7. INDEMNIFICATION
7.1 Indemnification by the Company.
The Company will indemnify and hold harmless each Holder of
Registrable Securities covered by any registration provided in this Agreement,
subsidiaries, Affiliates, officers, directors, employees, agents and
representatives of each such Holder and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act, against any
and all liabilities, obligations, losses, damages, penalties, claims (or actions
or proceedings in respect thereof), costs and expenses (including reasonable
legal fees) ("Losses"), arising out of or based upon (i) 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
or other applicable non-U.S. securities laws, any preliminary prospectus
contained therein, or any Free Writing Prospectus with respect to any securities
that are subject to any such registration statement or any "issuer information"
filed or required to be filed pursuant to Rule 433(d) under the Securities Act
or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company shall not be liable in any such
case for any such Loss to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in a registration statement or prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished by
such Holder expressly for use therein. Such indemnity shall survive the transfer
by such Holder of the securities it holds in the Company in accordance with
Section 9.2 and the other provisions of this Agreement.
12
7.2 Indemnification by the Holders.
To the full extent permitted by law, each Holder selling Registrable
Securities pursuant to a registration provided in this Agreement, severally and
not jointly, will indemnify and hold harmless the Company, its subsidiaries, its
Affiliates, each of its directors, each of its officers, employees, agents and
representatives, any underwriter retained by the Company and each person, if
any, who controls the Company or such underwriter within the meaning of the
Securities Act or the Exchange Act, any other Holder selling securities pursuant
to such registration and any of such other Holder's subsidiaries, Affiliates,
officers, directors, employees, agents and representatives and each of their
successors and assigns and each person, if any, who controls such other Holder
within the meaning of the Securities Act or the Exchange Act, against any Losses
which are imposed on, incurred by or asserted against any such indemnified party
under the Securities Act, the Exchange Act or any securities laws or other laws
of any jurisdiction, common law or otherwise, in connection with the
registration of securities provided in this Agreement, in each case to the
extent (and only to the extent) that such Losses arise out of or are based upon
an untrue statement or alleged untrue statement in, or omission or alleged
omission from, a registration statement or prospectus or any amendment or
supplement thereto, or any Free Writing Prospectus with respect thereto, in
conformity with written information furnished by such Holder expressly for use
therein; provided, however, that in no event shall any indemnity under this
Section 7.2, together with any amounts payable under Section 7.3, exceed the net
proceeds received by such indemnifying Holder from the offering out of which
such Losses arise.
7.3 Indemnification Procedures.
Promptly after receipt by an indemnified party under this Article 7 of
notice of the commencement of any action or proceeding by any third party
(including any governmental action or proceeding) (a "Third Party Claim"), such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Article 7, deliver to the indemnifying party a
written notice of the commencement of such Third Party Claim containing
reasonable detail of the Third Party Claim (a "Claim Notice") and transmit to
the indemnifying party a copy of all notices and documents received by the
indemnified party pursuant to the Third Party Claim; provided that the failure
to deliver a Claim Notice or the failure to transmit a copy of such notices and
documents to the indemnifying party within a reasonable time of the commencement
of any such action shall not relieve such indemnifying party of any liability to
the indemnified party under this Article 7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. The
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense of such Third Party Claim at its own
expense with counsel selected by the indemnifying party and reasonably
satisfactory to the indemnified parties; provided, however, that an indemnified
party (together with all other indemnified parties that may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate, based on the advice of counsel to the
indemnified party, due to a conflict of interest between such indemnified party
and the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party (which shall not be unreasonably withheld),
consent to the entry of any judgment or enter into any settlement of any Third
Party Claim (whether or not the indemnified party is an actual or potential
party to such action or claim) if such judgment or settlement includes a
statement as to an admission of fault, culpability or a
13
failure to act on behalf of any indemnified party. No indemnifying party shall
consent to entry of any judgment or enter into any settlement which does not
include an unconditional release of each indemnified party from all liability in
respect to such Third Party Claim. No indemnified party shall consent to the
entry of any judgment or enter into any settlement in any Third Party Claim, the
defense of which has been assumed by an indemnifying party, without the written
consent of such indemnifying party.
7.4 Contribution.
If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party referred to in Section
7.1 or 7.2 with respect to any Loss referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Loss in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and by the
indemnified party on the other from the offering out of which the Losses arise.
If the allocation provided by the immediately preceding sentence is unavailable
with respect to any Loss for any reason, the indemnifying party and the
indemnified party severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other in connection with the Losses, as well as any other relevant equitable
considerations. Relative benefits received by a party shall be deemed to be in
the same proportion as the net proceeds from the offering (before deducting
expenses) received by such party bear to the aggregate public offering price of
the securities offered in the offering. Relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other method of
allocation that does not take account of the equitable considerations referred
to above. The amount paid or payable by an indemnified party as a result of any
Loss shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding any other provisions of this Section 7.4, no
Holder will be required to contribute under this Article 7 any amount in excess
of the amount by which the net proceeds received by such Holder in the offering
exceed the amount of any damages that such Holder has otherwise been required to
pay by reason of such untrue statement or alleged untrue statement or omission
or alleged omission; and (b) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentations.
7.5 Survival.
The obligations of the Company and Holders under this Section 7 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
8. COMPANY UNDERTAKINGS
14
8.1 No Inconsistent Agreements.
The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of the
Registrable Securities in this Agreement.
8.2 Rules 144 and 144A.
(a) So long as the Company shall not have filed a registration
statement pursuant to Section 12 of the Exchange Act or a registration statement
pursuant to the requirements of the Securities Act, the Company shall, at any
time and from time to time, upon the request of any Holder of Registrable
Securities, furnish in writing to such Holder, a statement as of a date not
earlier than 12 months prior to the date of such request of the nature of the
business of the Company and the products and services it offers and copies of
the Company's most recent balance sheet and profit and loss and retained
earnings statements, together with similar financial statements for such part of
the two preceding fiscal years as the Company shall have been in operation, all
such financial statements to be audited to the extent audited statements are
reasonably available, provided that, in any event the most recent financial
statements so furnished shall include a balance sheet as of a date less than 12
months prior to the date of such request, statements of profit and loss and
retained earnings for the 12 months preceding the date of such balance sheet,
and, if such balance sheet is not as of a date less than 6 months prior to the
date of such request, additional statements of profit and loss and retained
earnings for the period from the date of such balance sheet to a date less than
6 months prior to the date of such request.
(b) If the Company shall have filed a registration statement pursuant
to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company shall
timely file the reports required to be filed by it under the Securities Act and
the Exchange Act (including but not limited to the reports under sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c) of Rule 144) and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, will, upon the request of any Holder of
Registrable Securities, make publicly available other information except for
such material non-public information as the Company has a valid business purpose
for not disclosing publicly) and will 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 limitation of the exemptions
provided by (a) Rule 144, Rule 144A or Regulation S, or (b) any similar rule or
regulation hereafter adopted by the SEC.
9. MISCELLANEOUS
9.1 Term
This Agreement shall terminate upon the earlier of (i) the date as of
which all of the Registrable Securities have been sold pursuant to a
registration statement or (ii) when the Holders are permitted to sell their
Registrable Securities under Rule 144(k) under the Securities Act (or any
similar provision then in force permitting the sale of restricted securities
without limitation on the amount of securities sold or the manner of sale).
9.2 Successors and Assigns.
15
(a) The registration rights of any Holder under this Agreement with
respect to any Registrable Securities may be transferred and assigned, provided,
however that no such assignment shall be binding upon or obligate the Company
with respect to any such assignee unless and until (i) the Company shall have
received notice of such assignment as herein provided and a written agreement of
such assignee to be bound by the provisions of this Agreement and (ii) such
assignee acquires Registrable Securities with an estimated aggregate market
value of $10 million or more.
(b) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the Parties hereto and their respective successors and
assigns.
9.3 Governing Law.
This Agreement and, to the fullest extent permitted by applicable law,
all matters arising out of or relating to this Agreement, shall be governed by
and construed in accordance with the law of the State of New York, United States
of America.
9.4 Dispute Resolution.
(a) Any dispute, controversy or claim (each, a "Dispute") arising out
of or relating to this Agreement, or the interpretation, breach, termination or
validity hereof, shall be resolved at the first instance through consultation
between the parties to such Dispute. Such consultation shall begin immediately
after any Party has delivered written notice to any other Party to the Dispute
requesting such consultation.
(b) If the Dispute is not resolved within 60 days following the date
on which such notice is given, the Dispute shall be submitted to arbitration
upon the request of any Party to the Dispute with notice to each other Party to
the Dispute (the "Arbitration Notice").
(c) The arbitration shall be conducted in Hong Kong Special
Administrative Region ("Hong Kong") under the auspices of the Hong Kong
International Arbitration Centre (the "Centre"). There shall be three
arbitrators. The claimants in the Dispute shall collectively choose one
arbitrator, and the respondents shall collectively choose one arbitrator. The
Secretary General of the Centre shall select the third arbitrator, who shall be
qualified to practice law in the State of New York. If any of the members of the
arbitral tribunal have not been appointed within 30 days after the Arbitration
Notice is given, the relevant appointment shall be made by the Secretary General
of the Centre.
(d) The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law, as in effect at the time of the
arbitration, which rules shall be deemed to have been incorporated by reference
into this Section 9.4. However, if such rules are in conflict with the
provisions of this Section 9.4, including the provisions concerning the
appointment of arbitrator, the provisions of this Section 9.4 shall prevail.
(e) Each Party to the arbitration shall cooperate with each other
Party to the arbitration in making full disclosure of and providing complete
access to all information and documents requested by such other party in
connection with such arbitration proceedings, subject only to any
confidentiality obligations binding on such Party.
16
(f) The award of the arbitration tribunal shall be final and binding
upon the Parties, and the prevailing Party may apply to a court of competent
jurisdiction for enforcement of such award.
(g) Any party to the Dispute shall be entitled to seek preliminary
injunctive relief, if possible, from any court of competent jurisdiction pending
the constitution of the arbitral tribunal.
(h) During the course of the arbitration tribunal's adjudication of
the dispute, this Agreement shall continue to be performed except with respect
to the part in dispute and under adjudication.
(i) The cost of arbitration (including legal, accounting and other
professional fees and expenses reasonably incurred by any prevailing party with
respect to the investigation, collection, prosecution and/or defense of any
claim in the Dispute) shall be borne by the losing Party or Parties unless
otherwise determined by the arbitration award.
9.5 Counterparts and Facsimile Execution.
This Agreement and any amendment hereto or any other agreement (or
document) delivered pursuant hereto may be executed in any number of
counterparts, each of which shall be an original but all of such counterparts
together shall constitute one and the same instrument and shall become effective
(unless otherwise provided therein) when all counterparts have been signed by
all relevant parties and delivered to the other parties. Any counterpart or
other signature delivered by a Party by facsimile shall be deemed for all
purposes as being a good and valid execution and delivery of this Agreement by
that Party.
9.6 Titles and Subtitles; References.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement, nor as evidence of the intention of the Parties hereto. Except where
otherwise indicated, all references in this Agreement to Articles or Sections
refer to Articles or Sections of this Agreement,
9.7 Notices.
Any and all notices required or permitted to be given to a Party
pursuant to the provisions of this Agreement will be in writing and will be
effective and deemed to provide such Party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if delivery is in person; (ii) at the time of transmission by
facsimile, addressed to such Party at the facsimile number indicated for such
Party on the signature page of this Agreement (or hereafter modified by
subsequent notice to the Parties hereto, or, in the case of a subsequent Holder
of any Restristrable Securities, at the facsimile number furnished by such
subsequent Holder to the Company and the other Holders in writing), with
confirmation of receipt made by both telephone and printed confirmation sheet
verifying successful transmission of the facsimile; (ii) two business day after
deposit with an express overnight courier for deliveries within a country, or
three business days after such deposit for international deliveries or (iv)
three business days after deposit in mail by certified mail (return receipt
requested) or equivalent for deliveries within a country. For the purposes of
this Section, a delivery between the Hong Kong and any other point in the PRC
shall be considered an international delivery.
17
All notices for international delivery will be sent by facsimile or by
express courier. All notices not delivered personally or by facsimile will be
sent with postage and/or other charges prepaid and properly addressed to the
Party to be notified at the address or facsimile number indicated for such Party
on the signature page of this Agreement or at such other address or facsimile
number as such Party may designate by giving ten days advance written notice by
one of the indicated means of notice provided in this Agreement to the other
Parties hereto, or, in the case of a subsequent Holder of any Registrable
Securities, at the address or facsimile number furnished by such subsequent
Holder to the Company and the other Holders in writing. Notices by facsimile
shall be machine verified as received.
Any Party hereto (and such Party's permitted assigns) may by notice so
given change its address for future notices under this Agreement. Notice shall
conclusively be deemed to have been given in the manner set forth above.
9.8 Attorney's Fees.
In the event of any action for the breach of this Agreement or
misrepresentation by any Party, the prevailing Party shall be entitled to
reasonable attorney's fees, costs and expenses incurred in connection with such
action.
9.9 Amendments and Waivers.
Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by the written consent
of the Parties and each subsequent Holder of any Registrable Securities. No
delay or omission to exercise any right, power, or remedy accruing to any Party,
upon any breach, default or noncompliance by another Party under this Agreement
shall impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of any similar breach, default or noncompliance thereafter
occurring. No waiver of any provision nor consent to any exception to the terms
of this Agreement shall be effective unless in writing and signed by the Party
to be bound and then only to the specific purpose, extent and instance so
provided. Any amendment or waiver effected in accordance with this Section 9.9
shall be binding upon each of the Parties hereto and their successors and
permitted assigns. All remedies, either under this Agreement, by law, or
otherwise afforded to any Party shall be cumulative and not alternative.
9.10 Severability.
If any provisions of this Agreement shall be held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the remaining provisions of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
9.11 Entire Agreement.
This Agreement, the other Transaction Documents and all other
documents referred to in this Agreement (except for the letter agreement dated
as of the date hereof, among the Company, Brothers Capital Limited and the
Investors) constitute the entire agreement and understanding among the Parties
with respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties
18
or obligations between the Parties with respect to the subject matter hereof and
no Party shall be liable or bound to any other Party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
9.12 Interpretation.
Unless a provision in this Agreement expressly provides otherwise: (i)
the term "or" is not exclusive; (ii) words in the singular include the plural,
and words in the plural include the singular; (iii) the terms "herein,"
"hereof," and other similar words refer to this Agreement as a whole and not to
any particular section, subsection, paragraph, clause, or other subdivision;
(iv) the term "including" will be deemed to be followed by ", but not limited
to,"; (v) the masculine, feminine, and neuter genders will each be deemed to
include the others; (vi) the terms "shall," "will," and "agrees" are mandatory,
and the term "may" is permissive; (vii) the term "day" means "calendar day," and
(viii) all references to "dollars" are to currency of the United States of
America.
9.13 No Presumption.
The Parties acknowledge that any applicable law that would require
interpretation of any claimed ambiguities in this Agreement against the Party
that drafted it has no application and is expressly waived. If any claim is made
by a Party relating to any conflict, omission or ambiguity in the provisions of
this Agreement, no presumption or burden of proof or persuasion will be implied
because this Agreement was prepared by or at the request of any Party or its
counsel.
9.14 Specific Performance.
Each of the Parties hereto recognizes and acknowledges that a breach
by it of any covenants or agreements contained in this Agreement will cause the
other Party to sustain damage for which it would not have an adequate remedy at
law for money damages, and therefore each of the Parties hereto agrees that in
the event of any such breach the aggrieved Party shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
9.15 Aggregation of Stock.
All Registrable Securities held or acquired by affiliated entities or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
[The remainder of this page has been intentionally left blank.]
19
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
AGRIA CORPORATION
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name:
Title:
TPG GROWTH AC LTD.
By /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Vice President and Secretary
TPG BIOTECH II, LTD.
By /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Vice President and Secretary
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
