EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of February __, 2000 among
Xxxxxx.xxx N.V., a Dutch company (the "Company"), Floscule B.V., a Dutch company
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("Floscule"), Compagnie Generale d'Industrie et de Participations ("CGIP"), a
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French company ("CGIP"), Oranje-Nassau Participaties B.V., a Dutch subsidiary of
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CGIP ("Oranje-Nassau"), Trief Corporation, S.A., a Luxembourg subsidiary of CGIP
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("Trief"), and Figema S.A., a French subsidiary of CGIP ("Figema").
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WHEREAS, the Holders (as defined below) wish to have the right to require
the Company to register Class A Common Shares of the Company under the
Securities Act of 1933; and
WHEREAS, the Company, in consideration of the Holders' support of the
Company's Initial Public Offering (as defined below), is willing to grant such
registration rights;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein.
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"CGIP Group" means CGIP, Oranje-Nassau, Trief, Figema and their Permitted
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Transferees. If CGIP Group is absorbed by Marine Xxxxxx, all references herein
to CGIP shall be deemed to be references to Marine Xxxxxx and all references to
the CGIP Group shall be deemed to be references to the Marine Xxxxxx Group.
"Class A Common Shares" shall mean the Class A Common Shares, EUR 0.16
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nominal value per share, of the Company, as constituted as of the date of this
Agreement.
"Class B Common Shares" shall mean the Class B Common Shares, EUR 1.92
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nominal value per share, of the Company, as constituted as of the date of this
Agreement.
"Commission" shall mean the United States Securities and Exchange
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Commission, or any other United States agency at the time administering the
Securities Act.
"Exchange Act" shall mean the United States Securities Exchange Act of
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1934, as amended, or any similar United States statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Floscule Group" means Floscule and its Permitted Transferees.
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"Holders" means the Floscule Group and the CGIP Group.
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"Initial Public Offering" means the Company's first underwritten public
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offering of Class A Common Shares on a recognized stock exchange pursuant to
applicable securities laws.
"Xx. XxxXxxx" means Xxxx X. XxxXxxx.
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"Xxx. XxxXxxx" means Xxxxxx X. Xxxxxx XxxXxxx.
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"Mr. Teyssonniere" means Xxxx Teyssonniere de Gramont.
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"Permitted Transferee" means:
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(i) in the case of CGIP, Oranje-Nassau, Figema and Trief, (a) any wholly-
owned Subsidiary of CGIP, (b) if CGIP is absorbed by Marine Xxxxxx, Marine
Xxxxxx and any Wholly-Owned Subsidiary of Marine Xxxxxx and (c) if the Floscule
Group is the holder of a majority of the outstanding Class B Common Shares at
the time of any proposed transfer, any member of the Floscule Group; and
(ii) with respect to Floscule, (a) Mr. and Xxx. XxxXxxx and any of their
descendants; (b) Mr. Teyssonniere and his heirs, his wife and her descendants;
(c) any corporation, partnership or other entity 100% of the voting and
beneficial interests in which are owned by one or more of the Persons referred
to in clause (a) and (b) ; (d) any trust whose only beneficiaries are one or
more of the Persons referred to in clause (a), (b) and (c); and (e) if the CGIP
Group is the holder of a majority of the outstanding Class B Common Shares at
the time of any proposed transfer, any member of the CGIP Group.
"Person" means an individual, corporation, partnership, association, trust
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or other entity or organization, including a government or political subdivision
or agency or instrumentality thereof.
"Registration Expenses" shall mean the expenses so described in Section 6.
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"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on From S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any other
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registrable Shares" shall mean all Class A Common Shares and all Class A
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Common Shares issued or issuable upon the conversion of the Class B Common
Shares held by the Holders; provided, however, that Registrable Shares shall not
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include such number of Class A Common Shares as may be sold within six months
under Rule 144 under the Securities Act. Whenever reference is made in this
Agreement to a request or consent of Holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include Class A
Common Shares issuable upon the conversion of the Class B Common Shares held by
the Holders even if such conversion has not yet been effected.
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"Securities Act" shall mean the United States Securities Act of 1933, as
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amended, or any similar United States statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Wholly-Owned Subsidiary" means any entity all of the securities or other
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ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions (other than
directors' qualifying shares or the equivalent) are at the time directly or
indirectly owned by a company. An entity shall be considered a Wholly-Owned
Subsidiary of a company notwithstanding the transfer of record ownership of an
equity interest in such entity to a nominee if such nominee has agreed in
writing that (x) such nominee will vote its equity interest in the entity in
accordance with the instructions of the company that transferred the interest to
the nominee and (y) it is holding the equity interest in the entity solely for
the benefit of the company that transferred the interest to the nominee,
provided that such nominee does not hold record ownership of more than one
percent of the shares in the entity.
2. Demand Registration. (a) At any time commencing 180 days after the
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Initial Public Offering and for so long as the Company shall not be eligible to
file a Registration Statement on Form F-3 (or any successor form relating to
secondary offerings), each of the Holders may request, in writing, that the
Company effect a registration on Form F-1 or Form F-2 (or any successor form) of
Registrable Shares held by such Holder having an aggregate offering price to the
public of at least $50,000,000.00. Following receipt of any notice pursuant to
this Section 2, the Company shall immediately notify all Holders from whom
notice has not been received and shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of
distribution specified in such notice from the requesting Holder or Holders, the
number of Registrable Shares specified in such notice (and in all notices
received by the Company from other Holders within 30 days after the giving of
such notice by the Company). If such method of distribution shall be an
underwritten public offering, the Holder of a majority of the Registrable Shares
to be sold in such offering may designate the managing underwriter of such
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed. If a registration pursuant to this Section 2
is, in whole or in part, an underwritten public offering, the Company shall
provide such assistance with respect to the offering as may be reasonably
requested by the requesting Holders or the underwriters, including, but not
limited to, causing members of the Company's senior management team to
participate in "roadshow" presentations for the purpose of the marketing of the
Registrable Shares to be sold by the underwriters. The Company shall not be
required to effect more than one such registration at the request of each of the
CGIP Group and the Floscule Group under this Section 2; provided that such
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obligation shall be deemed satisfied only when a Registration Statement covering
all Registrable Shares specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting Holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto. The Company will use its best efforts to maintain the
effectiveness for up to 90 days (or such shorter period of time as the
underwriters need to complete the distribution of the registered offering) of
any Registration Statement pursuant to this Section 2.
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(b) The Company shall be entitled to include in any Registration Statement
referred to in this Section 2, for sale in accordance with the method of
disposition specified by the requesting Holders, Class A Common Shares to be
sold by the Company for its own account; provided, that if the proposed method
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of disposition specified by the requesting Holders shall be an underwritten
public offering, the shares to be included in such an offering shall be reduced
if and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the Registrable Shares to
be sold. Such reduction will be effected as follows:
(i) First, any shares to be sold by the Company shall be reduced; and
(ii) Second, if all of the shares to be sold by the Company are
excluded from the offering, then the Registrable Shares of the requesting
Holders shall be reduced, such reduction to be made pro rata among the
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requesting Holders based on the number of Registrable Shares owned by such
requesting Holders.
Except for registration statements on Form X-0, X-0 or any successor thereto,
the Company will not file with the Commission any other Registration Statement
with respect to its Class A Common Shares, whether for its own account or that
of other stockholders, from the date of receipt of a notice from requesting
Holders pursuant to this Section 2 until the completion of the period of
distribution of the registration contemplated thereby.
3. Piggyback Registration. If at any time the Company proposes to file a
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Registration Statement (other than pursuant to Section 2 or Section 4) to
register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other shareholders or both
(except with respect to registration statements or Forms
X-0, X-0 or another form not available for registering the Registrable Shares
for sale to the public), it will give written notice to all Holders of its
intention to do so. Upon the written request of a Holder received by the
Company within 30 days of the giving of any such notice by the Company to
register any of its Registrable Shares, the Company will use its best efforts to
cause the Registrable Shares as to which registration shall have been so
requested to be included in the Registration Statement proposed to be filed by
the Company, all to the extent required to permit the sale or other disposition
by the Holder of such Registrable Shares so registered. In the event that any
registration pursuant to this Section 3 shall be, in whole or in part, an
underwritten public offering of Class A Common Shares, the number of Registrable
Shares to be included in such an underwriting may be reduced (pro rata among the
requesting Holders based upon the number of Registrable Shares owned by such
Holders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein. Notwithstanding the foregoing and
subject to Section 5, the Company may withdraw any Registration Statement
referred to in this Section 3 without thereby incurring any liability to the
Holders.
4. Registration on Form F-3. At any time after the Company becomes
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eligible to file a Registration Statement on Form F-3 (or any successor form
relating to secondary offerings), each of the Holders may request the Company,
in writing, to effect the registration on Form F-3 (or such successor form), of
Registrable Shares having an aggregate offering price of at least
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$10,000,000.00 (based on the then current public market price). Upon receipt of
any such request, the Company shall promptly give written notice of such
proposed registration to all other Holders. Such Holders shall have the right,
by giving written notice to the Company within 30 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Holder may request in such notice of election.
The Company shall, as expeditiously as possible, use its best efforts to effect
the registration on Form F-3 (or such successor form) of all Registrable Shares
which the Company has been requested to so register. There shall be no limit on
the number of registrations that may be requested and obtained pursuant to
Section 4, provided that the Company shall not be required to effect more than
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one registration during any six-month period pursuant to this Section 4. The
Company will use its best efforts to maintain the effectiveness for up to 30
days of any Registration Statement pursuant to this Section 4.
5. Blackouts. Notwithstanding the provisions of Section 2, 3 or 4 above,
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if at any time the Company is in possession of material non-public information
that the Supervisory Board of the Company determines in good faith is not in the
best interests of the Company to disclose in a Registration Statement but which
information would otherwise be required by the Securities Act to be disclosed in
such Registration Statement or amendment thereto, then the Company may (i) delay
the filing, or requested effectiveness, of any Registration Statement required
to be filed pursuant to Section 2 or Section 4 above for up to 120 days or (ii)
upon notice to the Holders, suspend the use of any Registration Statement that
has been declared effective by the Commission under the Securities Act for up to
120 days; provided that the Company shall not delay the filing or requested
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effectiveness of, or suspend the use of, any Registration Statement for more
than an aggregate of 120 days in any 12-month period.
6. Registration Procedures. If and whenever the Company is required by
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the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for the periods
specified in Sections 2, 3 and 4 above and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares covered
by such Registration Statement in accordance with the selling Holders' intended
method of disposition set forth in such Registration Statement for such period;
(c) furnish to each seller of Registrable Shares and to each underwriter such
number of copies of the Registration Statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Registrable Shares covered by such Registration Statement;
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(d) use its best efforts to register or qualify the Registrable Shares
covered by the Registration Statement under the securities or "blue sky" laws of
such jurisdictions as the selling Holders or, in the case of an underwritten
public offering, the managing underwriter, reasonably shall request, and do any
and all other acts and things that may be necessary or desirable to enable the
selling Holders to consummate the public sale or other disposition in such state
of the Registrable Shares owned by the selling Holder, provided, however, that
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the Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) use its best efforts to list the Registrable Shares covered by such
registration statement with any securities exchange on which the Class A Common
Shares of the Company are then listed;
(f) immediately notify each seller of Registrable Shares and each underwriter
under such Registration Statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained 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 light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller of
Registrable Shares, use its best efforts to furnish on the date that Registrable
Shares are delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such Registration Statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the Registration Statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
Registration Statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Registrable Shares, any
underwriter participating in any distribution pursuant to such Registration
Statement, and any
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attorney, accountant or other agent retained by such seller or underwriter, 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 seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement.
(i) before filing any Registration Statement or any amendments or supplements
thereto, furnish to counsel to the Holders copies of such documents proposed to
be filed, which documents shall be subject to the reasonable approval of such
counsel.
(j) provide copies of all correspondence from the Commission relating to any
Registration Statement as well as copies of correspondence from the Company to
the Commission in response thereto, which correspondence from the Company shall
be subject to the reasonable approval of such counsel.
In connection with each registration hereunder, the selling Holders will
furnish to the Company in writing such information with respect to themselves
and the proposed distribution by them as reasonably shall be necessary in order
to assure compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 2, 3, or 4
covering an underwritten public offering, the Company and each Holder agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
7. Expenses. The Company will pay all Registration Expenses of all
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registrations under this Agreement. For purposes of this Section 7, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, state "blue sky" fees and expenses, fees of the
National Association of Securities Dealers, Inc., and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of the
selling Holders' own counsel.
8. Indemnification and Contribution. (a) In the event of a registration
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of any of the Registrable Shares under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless each seller of such
Registrable Shares thereunder, each underwriter of such Registrable Shares
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities or "blue sky" laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
Registrable Shares was registered under the Securities Act pursuant to Sections
2, 3 or 4, any preliminary prospectus or final prospectus
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contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
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any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by any such seller, any such underwriter or any such controlling person in
writing specifically for use in such Registration Statement or prospectus.
(b) In the event of a registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of such Registrable
Shares thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each of the officers and directors of the Company, each
underwriter (if any) and each person who controls such underwriter within the
meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities or "blue sky" laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement under which such
Registrable Shares was registered under the Securities Act pursuant to Sections
2, 3 or 4, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
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hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
Registration Statement or prospectus, and provided, further, however, that the
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liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
Registration Statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such seller from the sale of Registrable Shares covered by such
Registration Statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action or proceeding involving a claim referred to in
Sections 8(a) and 8(b) above, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability
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which it may have to such indemnified party other than under this Section 8 and
shall only relieve it from any liability which it may have to such indemnified
party under this Section 8 if and to the extent the indemnifying party is
materially prejudiced by such omission. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 8 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected,
provided, however, that, if the defendants in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 8 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
8; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares offered by the Registration Statement
bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will be
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required to contribute any amount in excess of the public offering price of all
such Registrable Shares offered by it pursuant to such registration statement;
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
misrepresentation.
9. Information by Holder. Each Holder including Registrable Shares in any
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registration shall promptly furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
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10. Lock-Up Agreement. Each Holder, if requested by the Company and the
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managing underwriter of an underwritten public offering by the Company of Class
A Common Shares or other securities of the Company pursuant to a Registration
Statement, shall agree not to sell publicly or otherwise transfer or dispose of
any Registrable Shares or other securities of the Company held by such Holder
(other than any Registrable Shares to be sold in the public offering to which
such Registration Statement pertains) for (i) 90 days following the effective
date of such Registration Statement in the case of a public offering other than
an Initial Public Offering and (ii) 180 days following the effective date of
such Registration Statement in the case of the Initial Public Offering, or, in
both cases, such shorter time as may be acceptable to such managing underwriter.
Such agreement shall be in writing in form and substance satisfactory to the
Company and such managing underwriter. The Company may impose stop-transfer
instructions with respect to such shares subject to the foregoing restrictions
until the end of said 90-day or 180-day period, as the case may be.
11. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Shares to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to each holder of Registrable Shares forthwith upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed by the Company as such holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Registrable Shares without
registration.
12. General.
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(a) Successors and Assigns. The rights of the Holders under this
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Agreement may not be assigned without the written consent of the Company and the
Holder group that is not assigning its rights under this Agreement; provided
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that each of the members of the Floscule Group and the CGIP Group may assign its
rights under this Agreement to its Permitted Transferees if and to the extent
that it transfers Registrable Shares to such Permitted Transferees in accordance
with the terms of the Shareholders Agreement dated as of the date hereof among
the Company, the parties to this Agreement, Xx. XxxXxxx, Xxx. XxxXxxx and Mr.
Teyssonniere.
(b) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return
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receipt requested, sent by internationally recognized air courier or sent by
telecopier or telex, addressed as follows:
if to Xxxxxx.xxx N.V. at:
Parnassustoren
Xxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Managing Director
Telecopy: (0000) 00.00000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
XXX
Attn: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
if to Floscule B.V. at:
Parnassustoren
Xxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Managing Director
Telecopy: (0000) 0000000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP at the address indicated above.
if to Compagnie Generale d'Industrie et de Participations,
Oranje-Nassau Participaties B.V., Figema or Trief Corporation S.A. at:
00 xxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Attn: Xxxxx-Xxxxxxx Seilliere
Telecopy: (00) 0 00 00 00 00
and Attn: Legal Department
Telecopy: (00) 0 00 00 00 00
with a copy to:
-00-
Xxxxxx, Xxxxxxxxx and Heilbronn
0 xxx Xxxxxx x'Xxxxxx
00000 Xxxxx
Xxxxxx
Attn: Xxxxxx Xxxxxxx, Esq.
Telecopy: (00) 0 00 00 00 00
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company or to the Holders in accordance with the provisions of
this paragraph.
(c) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
provisions thereof relating to conflict of law.
(d) Amendments and Waivers. This Agreement may not be amended or
----------------------
modified, and no provision hereof may be waived, without the written consent of
the Company and the Holders. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or waiver.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) Entire Agreement. This Agreement represents the complete agreement
----------------
and understanding of the parties hereto in respect to the subject matter
contained herein. This Agreement supercedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Agreement has been executed by the parties hereto as of
the day and year first above written.
XXXXXX.XXX N.V. FLOSCULE B.V.
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- --------------------------
COMPAGNIE GENERALE ORANJE NASSAU PARTICIPATIES B.V.
D'INDUSTRIE ET DE PARTICIPATIONS
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- --------------------------
TRIEF CORPORATION S.A. FIGEMA S.A.
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- -------------------------
