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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), effective as of
__________, 1998 by Xxxxx Xxxxxx N.V., a company incorporated under the laws of
The Netherlands with its statutory seat in Amsterdam (the "Company"), for the
benefit of Xxxxx Xxxxxx Industries Limited, a company organized under the laws
of Australia ("JHIL").
WITNESSETH
WHEREAS, JHIL intends to complete a reorganization (the
"Reorganization") whereby JHIL and/or certain of its subsidiaries will transfer
substantially all of their operating businesses to the Company and its
subsidiaries and sell a portion of the Common Shares (as defined below) held by
JHIL and/or certain of its subsidiaries in an underwritten public offering (the
"Initial Public Offering"); and
WHEREAS, in order to induce JHIL to complete the Reorganization
and for other valid consideration, the Company has agreed to provide JHIL and
its subsidiaries with registration rights as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations and warranties and agreements herein
contained, the parties have agreed as follows:
1. Definitions. As used in this Agreement the following terms
shall have the following meanings:
(a) "Commission" means the United States Securities and
Exchange Commission and any successor United States federal agency having
similar powers.
(b) "ASIC" means the Australian Securities and Investments
Commission and any successor Australian government agency having similar powers.
(c) "ASX" means the Australian Stock Exchange Limited.
(d) "Common Shares" means common shares of the Company, par
value NLG 100 per share, as the same may be constituted from time to time,
including common shares derived from stock splits, stock dividends,
reclassifications or the like.
(e) "Holder" or "Holders" means JHIL, its direct or indirect
wholly owned subsidiaries (other than the Company and its direct or indirect
wholly owned subsidiaries), and their respective transferees, successors and
assigns; provided, however that no Person shall be treated as a Holder unless
(a) such Person beneficially owns at least two percent (2%) of the outstanding
Common Shares and (b) in the case of a transferee, successor or assign, the
Company is promptly (and, in any event, within 30 days of such transfer,
succession or assignment) provided with the name and address of such Person.
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(f) "Initiating Investor" means any Holder who initiates a
request for Registration pursuant to Section 2.2(a) hereof.
(g) "Laws" means the United States Securities Act of 1933, as
amended (the "1933 Act"), the United States Securities and Exchange Act of 1934,
any other federal laws, the laws of any State of the United States of America,
all Australian and Dutch laws and the laws of any other relevant jurisdiction
relating to the issuance, offering, marketing, registration, listing, sale or
trading of securities, the applicable rules and regulations of the Commission,
the applicable rules and regulations of the ASIC and all similar laws, rules and
regulations applicable to the issuance, offering, marketing, registration,
listing, sale or trading of securities in any other jurisdiction in which the
Common Shares are listed on any stock exchange or otherwise publicly traded, all
as the same shall be in effect from time to time. Any reference to any provision
of Laws shall encompass any successor provision or rule.
(h) "NYSE" means New York Stock Exchange or any successor
entity.
(i) "Person" means an individual, partnership, joint venture,
corporation, trust, unincorporated organization or a government or any
department or agency thereof.
(j) "Register" or "Registration" means issuing, marketing,
registering or listing the securities of the Company, pursuant to applicable
Laws, for offer and sale in or through the public markets in the United States
or, if applicable, in Australia or elsewhere (where the Company has previously
taken action to permit the sale of its securities).
(k) "Registration Expenses" means all expenses incident to the
Company's performance of, or compliance with, its obligations under this
Agreement including: (i) all applicable registration, filing or similar fees of
the Commission, ASIC or similar governmental agency; (ii) all applicable
registration, filing or similar fees of NYSE, ASX or other stock exchange; (iii)
all fees and expenses of complying with Laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications); (iv) all word processing, duplicating and printing expenses,
all messenger and delivery expenses, the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses of
any special audits or "comfort" letters required by or incident to such
performance and compliance; and (v) any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, including underwriting
discounts, and the reasonable fees and expenses of any special experts retained
in connection with the requested registration.
(l) "Registrable Securities" means the Common Shares
outstanding at any time which are held by a Holder; provided, however, that any
particular Registrable Securities shall cease to be such when such securities
(i) have been Registered and disposed of in accordance with such Registration,
(ii) have been or may be sold to the public pursuant to Rule 144 under the 1933
Act or (iii) shall have ceased to be outstanding.
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(m) "Registration Statement" means all forms, schedules,
statements, prospectus or other documents (including exhibits attached thereto)
necessary to Register securities in such jurisdiction.
2. Registration Rights.
2.1 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time after the Initial Public Offering proposes to Register for its own
account or for the account of others any securities of the Company, it will give
written notice to all Holders of its intention to do so, specifying the form and
manner and the other relevant facts involved in such proposed Registration, at
least thirty (30) days before the initial filing or first communication with the
relevant regulatory authority in the jurisdiction in which the Company proposes
to Register securities of the Company; and upon the written request of any such
Holder delivered to the Company within thirty (30) days after giving of any such
notice of the proposed Registration (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and the intended method or
methods of disposition thereof), the Company will use its best efforts to
Register all Registrable Securities that the Company has been so requested to
Register by the Holders, to the extent required to permit the disposition of the
Registrable Securities in accordance with such Registration, provided, that:
(i) if the Registration so proposed by the Company
involves an underwritten offering of the Common Shares so being
Registered, whether or not for sale for the account of the
Company, to be distributed on a firm commitment basis by or
through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, each
Holder requesting Registration of its Registrable Securities for
disposition in an underwritten offering agrees to include such
Registrable Securities in such underwritten offering and shall
be bound by the provisions of Section 2.4 hereof relating to
underwritten offerings; and
(ii) the Company shall not be obligated to effect any
Registration of Registrable Securities under this Section 2.1
incidental to the Registration of any of its Common Shares for
offer or sale pursuant to a dividend reinvestment plan, pursuant
to an acquisition, merger or exchange offer or to its employees,
directors or consultants pursuant to an employee benefit or
similar plan.
Except as provided in Section 2.2(b)(ii)(B), no Registration of Registrable
Securities effected under this Section 2.1 shall relieve the Company of its
obligation to effect Registration of Registrable Securities upon the request of
one or more Holders pursuant to Section 2.2.
(b) Expenses. Each Holder shall pay its pro rata share of all
Registration Expenses in connection with each Registration of Registrable
Securities requested by such Holder pursuant to this Section 2.1, including its
pro rata share of any applicable underwriters' fees, discounts and commissions.
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2.2 Registration on Request.
(a) Request. At any time, any Initiating Investor may make by
written notice to the Company a request that the Company effect the Registration
of all or part of such Initiating Investor's Registrable Securities and
specifying the intended method or methods of disposition thereof.
(b) Company Action. Upon receipt of a request of an Initiating
Investor under Section 2.2(a), the Company shall, within fifteen (15) days of
such request, give written notice of the requested Registration to all Holders
specifying the intended method or methods of disposition set forth in the
request and thereupon will use its best efforts to effect the Registration, of:
(i) the Registrable Securities that the Company has been
so requested to register by such Initiating Investor; and
(ii) all other Registrable Securities that the Company
has been requested to Register by the Holders by written request
given to the Company within fifteen (15) days after the giving
of such written notice by the Company;
all to the extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered, provided that
(A) the Company shall not be required to effect
a Registration pursuant to this Section 2.2 unless the
requests by Holders (including the Initiating Investor)
for such Registration cover in the aggregate at least
five percent (5%) of the then outstanding Common Shares,
and
(B) if the Company (i) shall have previously
effected a Registration on a firm commitment basis by or
through one or more underwriters pursuant to this
Section 2.2 or (ii) shall have previously effected a
Registration of Common Shares distributed on a firm
commitment basis by or through one or more underwriters,
of which notice has been given to all Holders pursuant
to Section 2.1, the Company shall not be required to
effect a Registration pursuant to this Section 2.2
(unless the managing underwriters in such previous
Registration consent to such additional Registration)
for a period of six (6) months following the effective
date of such most recent previous Registration.
(c) Expenses. Each Holder shall pay its pro rata share of all
Registration Expenses in connection with each Registration of Registrable
Securities requested by such Holder pursuant to this Section 2.2, including any
applicable underwriters' fees, discounts and commissions.
(d) Inclusion of Other Securities. The Company will not
Register securities for the account of any Person (including for its own
account) other than Holders, and
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will not Register any securities other than Registrable Securities, in any
Registration of Registrable Securities requested by one or more Holders pursuant
to this Section 2.2, unless permitted to do so by the written consent of such
Holders representing at least a majority (by number of shares) of the
Registrable Securities as to which Registration has been requested by such
Holders. The Company will not grant to any Person the right to request a
Registration not permitted by this paragraph without the consent of such Holders
representing at least a majority (by the number of shares) of Registrable
Securities.
2.3 Registration Procedures. If and whenever the Company is
required to effect the Registration of any Registrable Securities as provided in
Sections 2.1 and 2.2, the Company will as expeditiously as possible:
(a) (i) prepare and file with the Commission (or ASIC or the
appropriate legal authority in such other jurisdiction in which the Company
proposes to Register Registrable Securities) a Registration Statement with
respect to such Registrable Securities, (ii) promptly respond to all comments
received with respect to such Registration Statement and make and file all
amendments thereto deemed necessary by the Company's legal counsel, and (iii)
thereafter use its best efforts to cause such Registration Statement to become
effective, provided, however, that the Company shall not be required to file
such Registration Statement or cause such Registration Statement to become
effective if: (i) the Company's legal counsel delivers a reasoned opinion to the
Company and the Holders that it is likely that the Commission (or ASIC or the
appropriate legal authority in such other jurisdiction in which the Company
proposes to Register Registrable Securities) will refuse to permit such
Registration Statement to become effective or suspend the effectiveness of such
Registration Statement; or (ii) the Company delivers to the Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Company's board of directors such Registration may (a)
interfere with or affect the negotiations or completion of a transaction that is
being contemplated by the Company or (b) have a material adverse effect on the
Company; in this case, the Company shall have the right to delay such filing (or
withhold efforts to cause such Registration Statement to become effective) for
up to 180 days; provided, however, that the Company may not utilize this right
more than once in any 12-month period.
(b) in the case of Registration on Request under Section 2.2
hereof, prepare and file with the Commission (or ASIC or the appropriate legal
authority in such other jurisdiction in which the company proposes to Register
Registrable Securities) such amendments and supplements to such Registration
Statement used in connection therewith as may be necessary to keep such
Registration Statement accurate and effective and to comply with the provisions
of the 1933 Act or other relevant Laws with respect to the disposition of all
Registrable Securities and other securities covered by such Registration
Statement until the earlier of such time as all of such Registrable Securities
have been disposed of by the seller or sellers thereof set forth in such
Registration Statement or six (6) months, provided, however, that such time
period shall be extended by the amount of time that any Holders are prevented
from selling Registrable Securities under such Registration Statement as a
result of Section 2.4(d) hereof; and will furnish to each such seller at least
five (5) business days prior to the filing thereof a copy of any amendment or
supplement to such Registration Statement and
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shall not file any such amendment or supplement to which any such seller shall
have reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the 1933 Act or
other relevant Laws; notwithstanding any of the foregoing, the Company is not
obligated in the case of Incidental Registration under Section 2.1 hereof to
take any of the foregoing actions in this Section 2.3(b) or to otherwise
maintain the effectiveness of such Registration Statement.
(c) furnish to each seller of such Registrable Securities
conformed copies of such Registration Statement and of each such amendment
thereof and supplement thereto (in each case including all exhibits), copies of
the prospectus included in such Registration Statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the 1933 Act or other relevant Laws, such documents, if any,
incorporated by reference in such Registration Statement or prospectus, and such
other documents, in each case, in such quantities as such seller may reasonably
request;
(d) use its best efforts to register, list and/or qualify all
Registrable Securities covered by such Registration Statement under such other
Laws as the Company may determine is necessary or advisable or as any seller may
reasonably request, keep the Registrations or qualifications in effect for so
long as such Registration Statement remains in effect, and do any and all other
acts and things that may be necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such Registration Statement, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements of
this subdivision (d) be obligated to be so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of process
in any such jurisdiction;
(e) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller, of (i) an opinion of counsel for the
Company, dated the effective date of such Registration Statement (and, if such
Registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), and (ii) if the shares of Registrable
Securities are to be sold in an underwritten offering, a "comfort" letter, dated
the date of the closing under the 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, in the case of
such accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such other
financial matters, as such seller may reasonably request;
(f) immediately notify each seller of Registrable Securities
covered by such Registration Statement, at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act or other relevant Laws,
upon 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 any material
fact
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required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing (whereupon, all
sellers shall cease to effect sales until such time as the Company notifies the
sellers that the prospectus has been corrected or updated), and at the request
of any such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(g) otherwise use its best efforts to comply with all
applicable Laws and make available to its securities holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginnings with the first
month of the first fiscal quarter after the effective date of such Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder;
(h) if the Common Shares of the Company are Registered on
NYSE, ASX or other stock exchange, use its best efforts to comply with the
requirements of such exchanges or listing services and to include shares of
Registrable Securities covered by such Registration Statement for listing on
each such exchange or listing service.
The Company may require each seller of Registrable Securities as to which any
Registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing and as shall be required by any relevant
Laws in connection therewith.
2.4 Underwritten Offerings.
(a) Selection of Underwriters. Whenever a Registration
requested pursuant to Section 2.2(a) hereof is for an underwritten offering, the
Holders of a majority of the Registrable Securities so requested to be included
in such Registration shall select (subject to the reasonable approval of the
Company) one or more managing underwriters of recognized standing to administer
the offering, and each Holder requesting Registration of its Registrable
Securities for disposition in an underwritten offering agrees to include such
Registrable Securities in such underwritten offering and shall be bound by the
provisions of this Section 2.4. If the managing underwriters are of the opinion,
expressed in writing to the Holders requesting Registration of the Registrable
Securities, that the amount of Registrable Securities requested pursuant to
Section 2.2 to be included in the proposed underwritten offering is sufficiently
large to cause a material and adverse effect on the ability of the underwriter
to successfully complete a distribution of such Registrable Securities without
significantly adversely impacting the market price of the Common Shares, then
the number of shares to be included therein by Holders shall be limited to the
amount of securities that the managing underwriters determine in good faith can
be sold in such offering without causing a material and adverse effect on the
ability of the underwriter to successfully complete a distribution of such
Registrable Securities that does not significantly adversely impact the market
price of the Common Shares; provided, however, that
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as among such Holders, any reduction in the number of shares to be included in
the offering shall be applied to reduce pro rata the number of shares requested
to be registered by each Holder requesting inclusion of its shares pursuant to
Section 2.2.
(b) Underwriting Agreement. If requested by the underwriters
for any underwritten offering of Registrable Securities on behalf of Holders
pursuant to a Registration requested under Section 2.2 hereof, the Company will
enter into an underwriting agreement with such underwriters for such offering,
such agreement to contain representations and warranties by the Company and
other terms and provisions not inconsistent with this Agreement as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities to the effect and to
the extent provided in Section 2.6 hereof, and the Company will cooperate with
such Holders to the end that the conditions precedent to the obligations of such
Holders under such underwriting agreement shall not include conditions that are
not customary in underwriting agreements with respect to secondary distributions
and shall be otherwise satisfactory to such Holders. The Holders on whose behalf
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Holders selling Registrable Securities. No Holder shall be required by the
Company to make any representations or warranties to, or agreements with, the
Company or the underwriters (including any restrictions on sales inconsistent
with Section 2.4(d) hereof) other than reasonable representations, warranties or
agreements regarding such Holder, its Registrable Securities and such Holder's
intended method or methods of disposition and any other representation required
by the relevant Laws.
(c) Incidental Underwritten Offerings. If the Company at any
time proposes to Register any securities of the Company for its own account or
for the account of others as contemplated by Section 2.1 hereof and such
securities are to be distributed by or through one or more underwriters, the
Company will, if requested by any Holder who requests incidental Registration of
Registrable Securities in connection therewith pursuant to Section 2.1, arrange
for such underwriters to include the Registrable Securities to be offered and
sold by such Holders among the securities to be distributed by or through such
underwriters. If the managing underwriters are of the opinion, expressed in
writing to the Holder requesting incidental Registration of the Registrable
Securities, that the amount of Registrable Securities requested pursuant to
Section 2.1 to be included in the proposed underwritten offering is sufficiently
large to cause a material and adverse effect on the ability of the underwriter
to successfully complete a distribution of all securities proposed to be
included in such underwritten offering without significantly adversely impacting
the market price of the Common Shares, then the Company shall have the right to
limit the aggregate size of the offering or the number of shares to be included
therein by stockholders of the Company to the amount of securities that the
managing underwriters determine in good faith can be sold in such offering
without causing a material and adverse effect on the ability of the underwriter
to successfully complete a distribution of such securities that does not
significantly adversely impact the market price of the Common Stock; provided,
however, that (i) the number of Common Shares to be offered by the Company for
its own account or for the account of others or for which securities to be so
offered by the Company
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are convertible or exchangeable shall not exceed the number of Common Shares to
be offered by all Holders requesting inclusion of Registrable Securities, (ii)
if securities other than Common Shares or securities convertible into or
exchangeable for common shares are to be offered by the Company for its own
account or for the account of others, the proceeds, net of underwriting
discounts and commissions but before deducting Registration Expenses, of the
equity securities so offered by the Company shall not exceed the proceeds, net
of underwriting discounts and commissions but before deducting Registration
Expenses, of the securities to be offered by all Holders requesting inclusion of
Registrable Securities, and (iii) as among such Holders, any reduction in the
size of the offering or the number of shares to be included therein shall be
applied to reduce pro rata the number of Registrable Securities requested to be
registered by each Holder that had requested inclusion of its shares pursuant to
Section 2.1. The Holders with Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of such Holders, and the
Company will cooperate with such Holders to the end that the conditions
precedent to the obligations of such Holders under such underwriting agreement
shall not include conditions that are not customary in underwriting agreements
with respect to combined primary and secondary distributions and shall be
otherwise satisfactory to such Holders. Such Holders shall enter into an
agreement with such underwriters and the Company for such offering, such
agreement to contain such representations and warranties by such Holders and
such other terms and conditions as are customarily contained in such agreements
with respect to secondary distributions, including, without limitation,
indemnities to the effect and to the extent provided in Section 2.6 hereof. No
Holder shall be required by the Company to make any representations or
warranties to or agreements with the Company or the underwriters (including any
restrictions on sales inconsistent with Section 2.4(d) hereof) other than
reasonable representations, warranties or agreements regarding such Holder, its
Registrable Securities and such Holder's intended method or methods of
distribution and any other representation required by any relevant Laws.
(d) Restrictions on Sales by Investors. If any Registration
subject to Section 2.1 or 2.2 shall be in connection with an underwritten public
offering of Common Shares on a firm commitment basis, each Holder agrees by
acquisition of such Registrable Securities, if and to the extent requested in
writing by the managing underwriters, not to effect any public sales or
distribution (other than as part of such underwritten public offering pursuant
to Section 2.1(a) or 2.2(a)) of Common Shares, including a sale pursuant to Rule
144 or pursuant to a registered offering not being distributed on a firm
commitment basis by or through one or more underwriters, within the period from
thirty (30) days prior to the effective date of such Registration Statement up
to one hundred and twenty (120) days after the effective date of such
Registration Statement or such shorter period as may be acceptable to such
managing underwriters.
(e) Restrictions on Sales by the Company and Others. The
Company agrees (i) not to effect any public sale or distribution of any Common
Shares (including pursuant to a Registration not on a firm commitment basis by
or through one or more underwriters) within the period from fifteen (15) days
prior to the effective date of any Registration Statement that
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includes Registrable Securities to be distributed by or through one or more
underwriters on a firm commitment basis, if and to the extent requested by the
managing underwriters for such distribution, up to ninety (90) days after the
effective date of such Registration Statement (or such shorter period as may be
requested by such managing underwriters) unless such sale or distribution is
pursuant to such Registration Statement (or a separate Registration Statement
filed concurrently) and either (A) the Holders of a majority of the shares of
Registrable Securities to be included in such Registration statement (or a
separate Registration statement filed concurrently) consented pursuant to
Section 2.2(d) to the inclusion of such securities in such Registration
Statement, or (B) Holders are participating (or have declined to participate)
pursuant to Section 2.1 hereof in such Registration Statement (or a separate
Registration Statement filed concurrently) and such Registration Statement was
filed by the Company with respect to the sale of Common Shares by the Company
for its own account; and (ii) that any agreement entered into after the date of
this Agreement (A) pursuant to which the Company issues or agrees to issue or
registers or agrees to register any "restricted securities" (as defined in Rule
144 under the 0000 Xxx) or other Common Shares shall contain a provision under
which holders of such securities agree not to effect any sale or distribution of
any such securities during the period described in clause (i) above, including a
sale pursuant to Rule 144 under the 1933 Act (except as part of any such
Registration, if permitted), and (B) shall not contain a provision granting to
any Person rights in connection with the Registration of securities that are
inconsistent with the rights of Holder under this Section 2; provided, however,
that the provisions of clause (i) of this paragraph (e) shall not prevent the
conversion or exchange of any securities pursuant to their terms into or for
other securities or the offer or sale of securities by the Company pursuant to a
dividend reinvestment plan or to its employees, directors or consultants
pursuant to an employee benefit or similar plan.
(f) In the event of an underwritten offering pursuant to
Section 2.2(a), the Company shall provide the reasonable assistance of its
management in connection with marketing efforts for such offering, provided that
no such assistance shall be required to the extent that it would cause a
significant disruption in the performance of management's other duties.
2.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each Registration Statement registering
Registrable Securities under the 1933 Act or other relevant Laws, the Company
will give the Holders on whose behalf such Registrable Securities are to be so
registered and their underwriters, if any, and their respective counsel and
accountants, the opportunity to participate in the preparation of such
Registration Statement, each prospectus included therein or filed with the
Commission (or ASIC or in such other jurisdiction in which the Company proposes
to Register Registrable Securities) and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with the Company's
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the 1933 Act or other relevant Laws.
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2.6. Indemnification.
(a) Indemnification by the Company. In the event of any
Registration of any securities of the Company under the 1933 Act or other
relevant Laws pursuant to Section. 2.1 or 2.2, the Company will, and hereby
does, indemnify and hold harmless the seller of any Registrable Securities
covered by such Registration statement, its directors and officers, each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the Securities Exchange Act of 1934 (the "1934 Act") (each, an "Indemnified
Person"), against any losses claims, damages, liabilities or expenses, joint or
several, to which such Indemnified Person may become subject under the 1933 Act
or other applicable Laws, insofar as such losses, claims, damages, liabilities
or expenses (or actions or proceedings in respect thereof) arise out of or are
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 1933 Act or other applicable Laws, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment thereof or supplement thereto, or any document incorporated by
reference therein, (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, or (iii) any violation by the Company of any Laws
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such Registration, and the Company will reimburse
such Indemnified Person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense (or action or proceeding in respect thereof) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such Indemnified Person specifically stating that it
is for use in the preparation of such Registration Statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Person and shall survive the transfer
of such securities by such seller. The Company shall agree to a provision for
contribution relating to such indemnity as shall be reasonably requested by any
seller of Registrable Securities or the underwriters.
(b) Indemnification by the Sellers. The Company may require,
as a condition to including any Registrable Securities in any Registration
Statement filed pursuant to Section 2.1 or 2.2 hereof, that the Company shall
have received an undertaking from the prospective seller of such securities, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 2.6) the Company, each director of the
Company, each officer of the Company who shall sign such Registration Statement,
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls the Company or such
underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any losses, claims, damages,
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liabilities or expenses, joint or several, to which such person may become
subject under the applicable Laws or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are 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 relevant Laws, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment thereof or supplement thereto, or any document incorporated by
reference therein, 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, if such actual or alleged statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation of such Registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer, participating Person or controlling Person and shall survive the
transfer of such securities by such seller. Notwithstanding anything in this
Section 2.6(b) to the contrary, no indemnifying party shall be required pursuant
to this Section 2.6(b) to pay any amount in excess of the proceeds received by
such indemnifying party from the sale of Registrable Securities in the offering
to which the losses, claims, damages or liabilities of the indemnified parties
relate.
(c) Notice of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.6,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivisions of this Section 2.6 except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.6 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required Registration or other qualification of
such Registrable Securities under any relevant Laws.
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(e) Contribution. If the indemnification provided for in this
Section 2.6 is unavailable or insufficient to hold harmless an indemnified party
under Section 2.6(a) or (b) of this Agreement, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
Section 2.6(a) or (b) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the indemnifying party or
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statements or
omissions. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 2.6(e) were to be determined by pro rata
allocation or by any other method of allocation of Registrable Securities that
does not take account of the equitable considerations referred to in the first
sentence of this Section 2.6(e); provided, however, that the Company and each
Holder shall agree with each other and the underwriters of the Registrable
Securities, if requested by such underwriters, that the underwriter's portion of
such contribution shall not exceed the underwriting discount. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 2.6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim (which
shall be limited as provided as in the preceding sentence and in Section 2.6(c)
if the indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof) which is the subject of this Section
2.6(e). No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. Promptly after receipt by
an indemnified party under this Section 2.6(e) of notice of the commencement of
any action against such party in respect of which a claim for contribution may
be made against an indemnifying party under this Section 2.6(e), such
indemnified party shall notify the indemnifying party in writing of the
commencement thereof if the notice specified in Section 2.6(c) has not been
given with respect to such action; provided, that the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise under this Section 2.6(e),
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. Notwithstanding anything in this Section 2.6(e) to the
contrary, no indemnifying party other than the Company shall be required
pursuant to this Section 2.6(e) to contribute any amount in excess of the
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or liabilities
of the indemnified parties relate.
(f) Indemnification Payments. The indemnification required by
this Section 2.6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
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3. Specific Performance. The parties hereto acknowledge that
there may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement in any court
having jurisdiction over this Agreement.
4. Notices. Any written notices required hereunder to be given to
any Holder must be given by certified or registered mail, return receipt
requested, at the Holder's address of record as set forth on the stock records
of the Company, and such notice shall be deemed green upon the date that such
Holder actually received such notice, as evidenced by a receipt signed on behalf
of the Holder or three (3) business days after such notice has been sent to the
Holder's address of record. Any written notices required hereunder to be given
to the Company must be given by certified or registered mail, return receipt
requested, at the Company's principal executive offices as set forth on the
Company's most recently filed Registration Statement or Form 20-F, and such
notice shall be deemed given upon the date that the Company actually received
such notice, as evidenced by a receipt signed on behalf of the Company, or three
(3) business days after such notice has been sent to the Company's principal
executive files.
5. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and assigns including any Person to whom Registrable Securities are
transferred.
6. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning thereof.
7. Governing Law. This Agreement shall be governed by the laws of
the State of California, without regard to the provisions thereof relating to
conflict of laws.
8. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
9. Entire Agreement. This Agreement represents the complete
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect. to the subject matter hereof.
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IN WITNESS WHEREOF, the Company has executed this document as of
the date first above written.
XXXXX XXXXXX N.V.
By:
-------------------------
Name:
Title:
Accepted and Acknowledged by:
XXXXX XXXXXX INDUSTRIES LIMITED
By:
------------------------------
Name:
Title:
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