SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EXHIBIT
99.3
SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated
as of May 15, 2007, by and among pSivida
Limited, an
Australian corporation, with headquarters located at Xxxxx 00 XXX Xxxxxx, 00
Xxx
Xxxxxxxxx, Xxxxx Xxxxxxxxx 0000 (the “Company”),
and
Castlerigg Master Investments Ltd. (the “Investor”).
WHEREAS:
A. The
Company and the Investor (collectively with any other investors that may become
a party to this Agreement, the “Investors”)
are
parties to that certain Securities Purchase Agreement, dated as of October
5,
2005 (the “Securities
Purchase Agreement”),
pursuant to which, among other things, the Investors purchased from the Company
(i) Subordinated Convertible Notes, dated November 16, 2005 (the
“Original
Notes”)
and
(ii) warrants (the “Original
Warrants”),
which
are exercisable to purchase ADSs (the “Original
Warrant Shares”).
B. In
connection with the Amendment Agreement by and between the Company and the
Investor, dated as of July 28, 2006, (the “Amendment
Agreement”),
the
Company, among other things, (i) amended and restated the Original Notes (as
amended and restated, the “Existing
Notes”),
which
are convertible into ADSs (as converted, the “Existing
Conversion Shares”),
in
accordance with the terms thereof, (ii) issued to the Investor warrants (the
“Series
A Warrants”)
which
are exercisable to purchase ADSs (the “Series
A Warrant
Shares”),
(iii)
became obligated under the terms of the Existing Notes to issue to the investor,
from time to time upon the occurrence of certain events, Series B warrants
exercisable into ADSs, and (iv) entered into that certain Amended and Restated
Registration Rights Agreement, by and among the Company and the Investor, dated
as of September 14, 2006 (the “Amended
and Restated Registration Rights Agreement”)
which
amended and restated that certain Registration Rights Agreement, by and between
the Company and the Investor, dated as of November 16, 2005 whereby the Company
granted to the Investor certain registration rights under the Securities Act
of
1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “1933
Act”),
and
applicable state securities laws.
C. In
connection with that certain Letter Agreement, by and between the Company and
the Investor, dated October 17, 2006 (the “Letter
Agreement”),
the
Company agreed to make certain payments to the Investor, and the Company and
the
Investor amended certain of the provisions of the Amended and Restated
Registration Rights Agreement in connection with the Registration Statement
on
Form F-3 (SEC File No. 333-132777) (the “Initial
Registration Statement”)
registering 12,737,139 ADSs issuable to the Investor (x) upon conversion of
the
Existing Notes, (y) as interest on the Existing Notes and (z) upon
exercise of the Original Warrants, which such Registration Statement was
declared effective by the SEC on September 29, 2006.
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D. In
connection with the Second Amendment Agreement by and between the Company
and the Investor, dated as of December 29, 2006, (the “Second
Amendment Agreement”),
the
Company (i) issued to the Investor warrants (the “Series
C Warrants”
and
together with the Series A Warrants and the Original Warrants, the “Existing
Warrants”)
which
are exercisable to purchase ADSs (the “Series
C Warrant
Shares”
and
together with the Series A Warrant Shares and the Original Warrant Shares,
the “Existing
Warrant Shares”)
and
(ii) agreed, among other things, (x) to further amend and restate the Existing
Notes and (y) to issue the Investor warrants (the “Series
D Warrants”)
which
shall be exercisable to purchase ADSs (the “Series
D Warrant Shares”)
at
US$2.00 per ADS.
E. In
connection with the Amended and Restated Second Amendment Agreement, dated
as of
the date hereof (the “Amended
and Restated Second Amendment Agreement”),
the
Company has (i) redeemed the Existing Notes (the “Notes”);
(ii)
issued to the Investor Series D Warrants exercisable into Series D Warrant
Shares, (iii) issued to the Investor additional warrants (the “Series
E Warrants”),
which
are exercisable to purchase Four Million (4,000,000) ADSs (the “Series
E Warrant Shares”)
at
US$1.57 per ADS, (iv) issued to the Investor additional warrants (the
“Series
F Warrants”),
which
are exercisable to purchase One Million (1,000,000) ADSs (the “Series F
Warrant Shares”)
for
US$1.95 per ADS, and (v) issued to the Investor additional warrants (the
“Series
G Warrants”
and
together with the Existing Warrants, the Series D Warrants, the Series E
Warrants and the Series F Warrants, the “Warrants”),
which
are exercisable to purchase Two Million Three Hundred Forty One Thousand Three
Hundred Forty Seven (2,341,347) ADSs (the “Series G
Warrant Shares”
and
together with the Existing Warrant Shares, the Series D Warrant Shares, the
Series E Warrant Shares and the Series F Warrant Shares, the “Warrant
Shares”)
for
US$1.21 per ADS.
F. In
connection with the Amended and Restated Second Amendment Agreement, the Company
has agreed to execute and deliver this Agreement which amends, restates and
consolidates the terms and conditions of the Amended and Restated Registration
Rights Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and each of the Buyers hereby agree
as follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
a. “ADSs”
means
the American Depositary Shares of the Company evidenced by American Depositary
Receipts each of which represents ten (10) Ordinary Shares (as defined
below).
b. “Additional
Effective Date”
means
the date the Additional Registration Statement has been declared effective
by
the SEC.
c. “Additional
Effectiveness Deadline”
means
the date sixty (60) days after the Additional Filing Deadline, or in the event
that the SEC institutes a review of and/or
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issues
comments (including, without limitation, any correspondence or other
communication by the staff of the SEC which requires the Company to reduce
the
number of Ordinary Shares registered on any Registration Statement or otherwise
requires the Company to file an amendment to such Registration Statement) with
respect to the Additional Registration Statement, the date one hundred twenty
(120) days after the Additional Filing Deadline.
d. “Additional
Filing Date”
means
the date on which the Additional Registration Statement is filed with the
SEC.
e. “Additional
Filing Deadline”
means
the date ten (10) days following the Closing Date.
f. “Additional Registrable
Securities”
means
the Ordinary Shares underlying (i) the Series A Warrant Shares, (ii) the Series
C Warrant Shares, (iii) the Series D Warrant Shares, (iv) the
Series E Warrant Shares, (v) the Series F Warrant Shares, (vi) the
Series G Warrant Shares and (vii) any shares of capital stock issued
or issuable with respect to the Series A Warrant Shares, the Series C Warrant
Shares, the Series D Warrant Shares, the Series E Warrant Shares, the
Series F Warrant Shares or the Series G Warrant Shares as a result of any stock
split, stock dividend, recapitalization, exchange or similar event or otherwise,
without regard to any limitations on exercises of the Warrants.
g. “Additional
Registration Statement”
means
a
registration statement or registration statements of the Company filed under
the
1933 Act covering any Additional Registrable Securities.
h. “Additional
Required Registration Amount”
means
(I) Registrable Securities representing (i) 130% of the number of Series A
Warrant Shares issued and issuable pursuant to the Series A Warrants as of
the
Trading Day (as defined below) immediately preceding the applicable date of
determination, (ii) 130% of the number of Series C Warrant Shares issued and
issuable pursuant to the Series C Warrants as of the Trading Day immediately
preceding the applicable date of determination, (iii) 130% of the number of
Series D Warrant Shares issued and issuable pursuant to the Series D
Warrants as of the Trading Day immediately preceding the applicable date of
determination, (iv) 130% of the number of Series E Warrant Shares
issued and issuable pursuant to the Series E Warrants as of the Trading Day
immediately preceding the applicable date of determination, (v) 130% of the
number of Series F Warrant Shares issued and issuable pursuant to the
Series F Warrants as of the Trading Day immediately preceding the
applicable date of determination and (vi) 130% of the number of Series G
Warrant Shares issued and issuable pursuant to the Series G Warrants as of
the Trading Day immediately preceding the applicable date of determination,
in
each case subject to adjustment as provided in Section 2(g) or (II) such other
amount as may be required by the staff of the SEC pursuant to Rule 415 or
otherwise.
i. “Business
Day”
means
any day other than Saturday, Sunday or any other day on which commercial banks
in The City of New York, State of New York, U.S.A. or Perth, Australia are
authorized or required by law to remain closed.
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j. “Closing
Date”
shall
have the meaning set forth in the Amended and Restated Second Amendment
Agreement.
k. "Cutback
Shares"
means
any of the Initial Required Registration Amount or Additional Required
Registration Amount of Registrable Securities not included in a an effective
Registration Statement filed pursuant to this Agreement as a result of a
limitation on the number of Ordinary Shares of the Company permitted to be
registered on any such Registration Statement by the staff of the SEC pursuant
to Rule 415 or otherwise.
l. “Effective
Date”
means,
with respect to the Initial Registration Statement, the Additional Registration
Statement or a Subsequent Registration Statement, the date such Registration
Statement has been declared effective by the SEC.
m. “Effectiveness
Deadline”
means
the Initial Effectiveness Deadline (as defined below), the Additional
Effectiveness Deadline and the Subsequent Effectiveness Deadline (as defined
below), as applicable.
n. “Eligible
Market”
means
the Nasdaq Global Market, The New York Stock Exchange, Inc., the American Stock
Exchange, or The Nasdaq Capital Market.
o. “Initial Effectiveness
Deadline”
means
October 15, 2006.
p. “Initial Registrable
Securities”
means
the Ordinary Shares underlying (i) the ADSs into which the Notes are
convertible in accordance with the terms thereof (the “Conversion
Shares”),
(ii) the Original Warrant Shares, (iii) any Interest Shares (as defined in
the Notes) issued or issuable under the Notes, and (iv) any shares of
capital stock issued or issuable with respect to the Conversion Shares, the
Interest Shares, the Original Warrant Shares, the Notes and the Original
Warrants, as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitations on
conversions of the Notes or exercises of the Original Warrants.
q. “Initial Required
Registration Amount”
means
the Ordinary Shares underlying 12,737,139 ADSs representing not less than (i)
130% of the number of Conversion Shares issued and issuable as of the Trading
Day immediately preceding the applicable date of determination, (ii) 130% of
the
number of Original Warrant Shares issued and issuable pursuant to the Original
Warrants as of the Trading Day immediately preceding the applicable date of
determination, in each case subject to adjustment as provided in Section 2(g)
and (iii) 100% of the Interest Shares paid by the Company.
r. “Investor”
means
a
Buyer, any transferee or assignee thereof to whom a Buyer assigns its rights
under this Agreement and who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 and any transferee or assignee thereof
to
whom a transferee or assignee assigns its rights under this Agreement and who
agrees to become bound by the provisions of this Agreement in accordance with
Section 9.
s. “Ordinary
Shares”
means
ordinary shares of the Company.
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t. “Person”
means
an individual, a limited liability company, a partnership, a joint venture,
a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
u. “Purchase
Price”
means,
with respect to a convertible note, the principal amount of such convertible
note, and, with respect to a warrant, the number of shares subject to such
warrant multiplied by the then current per share exercise price provided for
therein.
v. “register,”
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing one or more Registration
Statements in compliance with the 1933 Act and pursuant to Rule 415 and the
declaration or ordering of effectiveness of such Registration Statement(s)
by
the SEC.
w. “Registrable
Securities”
means
the Initial Registrable Securities, the Additional Registrable Securities and
the Subsequent Registrable Securities.
x. “Registration
Statement”
means
a
registration statement or registration statements of the Company filed under
the
1933 Act covering Registrable Securities.
y. “Required
Holders”
means
the holders of at least a majority of the Registrable Securities.
z. “Required
Registration Amount”
means
(a) with respect to an Initial Registration Statement, the Initial Required
Registration Amount, (b) with respect to the Additional Registration
Statement, the Additional Required Registration Amount, and (c) with
respect to a Subsequent Registration Statement, the Subsequent Required
Registration Amount.
aa. “Rule
415”
means
Rule 415 under the 1933 Act or any successor rule providing for offering
securities on a continuous or delayed basis.
bb. "Subsequent
Effectiveness Date"
means
the date the Subsequent Registration Statement is declared effective by the
SEC.
cc. “Subsequent
Effectiveness Deadline”
with
respect to a Subsequent Registration Statement means the date which is sixty
(60) calendar days after the Subsequent Filing Date with respect to such
Subsequent Registration Statement or in the event that the SEC institutes a
review of and/or issues comments with respect to such Subsequent Registration
Statement (including, without limitation, any correspondence or other
communication by the staff of the SEC which requires the Company to reduce
the
number of Ordinary Shares registered on any Registration Statement or otherwise
requires the Company to file an amendment to such Registration Statement),
one-hundred and twenty (120) calendar days after the Subsequent Filing Date
with
respect to such Subsequent Registration Statement.
dd. "Subsequent
Filing Date"
with
respect to a Subsequent Registration Statement means the date on which such
Subsequent Registration Statement is filed with the SEC.
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ee. “Subsequent
Filing Deadline”
means
if Cutback Shares are required to be included in a Subsequent Registration
Statement, the later of (i) the date sixty (60) days after the date that the
Company receives notice from the Required Holders that substantially all of
the
Registrable Securities registered
under the immediately preceding Registration Statement have been sold
and
(ii)
the date six (6) months from the Additional Effective Date or the most recent
Effective Date occurring after the Additional Effective Date, as
applicable.
ff. “Subsequent
Registrable Securities”
means,
(i) any Cutback Shares not previously included on a Registration Statement
and
(ii) any share capital of the Company issued or issuable with respect to the
Warrants, the Warrant Shares or Cutback Shares, as applicable, as a result
of
any stock split, stock dividend, recapitalization, exchange or similar event
or
otherwise, without regard to any limitations on exercise of the
Warrants.
gg. “Subsequent
Registration Statement”
means
a
registration statement or registration statements of the Company filed under
the
1933 Act covering any Subsequent Registrable Securities.
hh. “Subsequent
Required Registration Amount”
means
any Cutback Shares not previously included on a Registration Statement, all
subject to adjustment as provided in Section 2(g), without regard to any
limitations on exercise of the Warrants, which have not previously been sold
pursuant to an effective registration statement, without restriction pursuant
to
Rule 144(k) or on the ASX.
ii. “SEC”
means
the United States Securities and Exchange Commission.
jj. “Trading
Day”
means
any day on which the ADSs are traded on the Nasdaq Global Market, or, if the
Nasdaq Global Market is not the principal trading market for the ADSs, then
on
the principal securities exchange or securities market on which the ADSs are
then traded; provided that “Trading Day” shall not include any day on which the
ADSs are scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the ADSs are suspended from trading during the final hour of
trading on such exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange or market,
then during the hour ending at 4:00:00 p.m., New York Time).
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Amended and Restated Second Amendment Agreement.
In
the event that the Company’s Board of Directors should determine that the
Company shall transform itself (whether by re-incorporation in the United States
or otherwise) from a foreign private issuer (as defined in the Securities Act
of
1933, as amended), all references to ADSs shall be deemed references to the
securities that are substituted for the ADSs with equitable adjustment of the
provisions of this Agreement for such substituted securities.
2. Registration.
a. Initial
Mandatory Registration.
The
Company has prepared, and (i) filed with the SEC the Initial Registration
Statement on Form F-3 covering the resale of all of the Initial Registrable
Securities. The Initial Registration Statement prepared pursuant hereto
registered for resale the Initial Required Registration Amount. The Initial
Registration Statement
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contained
the “Selling
Shareholders”
and
“Plan
of Distribution”
sections in substantially the form attached hereto as Exhibit
B,
with
such changes as were necessary or appropriate and mutually agreed by the
parties. The Initial Registration Statement was declared effective by the SEC
on
September 29, 2006.
b. Additional
Mandatory Registrations.
The
Company shall prepare, and, no later than the Additional Filing Deadline, file
with the SEC an Additional Registration Statement on Form F-3 covering the
resale of all of the Additional Registrable Securities. In the event that Form
F-3 or Form S-3 is unavailable for such a registration, the Company shall use
Form F-1 or Form S-1, as applicable, subject to the provisions of Section 2(f).
The Additional Registration Statement shall register for resale at least that
number of ADSs equal to the Additional Required Registration Amount as of the
date the Additional Registration Statement is initially filed with the SEC.
The
Additional Registration Statement shall contain (except if otherwise directed
by
the Required Holders) the “Selling Stockholders” and “Plan of Distribution”
sections in substantially the form attached hereto as Exhibit
B,
with
such changes as may be appropriate to reflect the inclusion of other permissible
securities of the Company and other changes which may be necessary or
appropriate. The Company shall use its reasonable best efforts to have the
Additional Registration Statement declared effective by the SEC as soon as
practicable after its filing, but in no event later than the Additional
Effectiveness Deadline. By 9:30 a.m. New York time on the date following the
Additional Effective Date,
the
Company shall file with the SEC in accordance with Rule 424 under the 1933
Act
the final prospectus to be used in connection with sales pursuant to such
Registration Statement.
c. Subsequent
Mandatory Registrations.
The
Company shall prepare, and, as soon as practicable but in no event later than
the Subsequent Filing Deadline, file with the SEC a Subsequent Registration
Statement on Form F-3 covering the resale of all of the Subsequent Registrable
Securities. In the event that Form F-3 or Form S-3 is unavailable for such
a
registration, the Company shall use Form F-1 or Form S-1, as applicable, subject
to the provisions of Section 2(f). To the extent the staff of the SEC does
not
permit the Subsequent Required Registration Amount to be registered on a
Subsequent Registration Statement, the Company shall file Subsequent
Registration Statements (consistent with the comments or instructions of the
staff of the SEC) successively trying to register on each such Subsequent
Registration Statement the maximum number of remaining Subsequent Registrable
Securities until the Subsequent Required Registration Amount has been registered
with the SEC. Each Subsequent Registration Statement prepared pursuant hereto
shall register for resale at least that number of ADSs equal to the Subsequent
Required Registration Amount (or such lesser number of Registrable Securities
dictated by the staff of the SEC) as of date the Registration Statement is
initially filed with the SEC. Each Subsequent Registration Statement shall
contain (except if otherwise directed by the Required Holders) the "Selling
Stockholders" and "Plan of Distribution" sections in substantially the form
attached hereto as Exhibit
B,
with
such changes as may be appropriate to reflect the inclusion of other permissible
securities of the Company and other changes which may be necessary or
appropriate. The Company shall use its best efforts to have each Subsequent
Registration Statement declared effective by the SEC as soon as practicable,
but
in no event later than the Subsequent Effectiveness Deadline with respect to
such Subsequent Registration Statement. By 9:30 a.m. New York time on the date
following the Subsequent Effective Date,
the
Company shall file with the SEC in accordance with Rule 424
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under
the
1933 Act the final prospectus to be used in connection with sales pursuant
to
such Registration Statement.
d. Allocation
of Registrable Securities.
The
initial number of Registrable Securities included in any Registration Statement
and any increase in the number of Registrable Securities included therein shall
be allocated pro rata among the Investors based on the number of Registrable
Securities held by each Investor at the time the Registration Statement covering
such initial number of Registrable Securities or increase thereof is declared
effective by the SEC. In the event that an Investor sells or otherwise transfers
any of such Investor’s Registrable Securities, each transferee shall be
allocated a pro rata portion of the then remaining number of Registrable
Securities included in such Registration Statement for such transferor. Any
ADSs
included in a Registration Statement and which remain allocated to any Person
which ceases to hold any Registrable Securities covered by such Registration
Statement shall be allocated to the remaining Investors, pro rata based on
the
number of Registrable Securities then held by such Investors which are covered
by such Registration Statement. Other than as permitted by Section 4(k) of
the
Securities Purchase Agreement, in no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Required Holders.
e. Legal
Counsel.
Subject
to Section 5 hereof, the Required Holders shall have the right to select one
legal counsel to review and oversee any registration pursuant to this Section
2,
which shall be Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as is
thereafter designated in writing by the Required Holders prior to the initiation
of such other legal counsel’s review and oversight of any registration
(“Legal
Counsel”).
The
Company and Legal Counsel shall reasonably cooperate with each other in
performing the Company’s obligations under this Agreement.
f. Ineligibility
for Form F-3 or Form S-3.
In the
event that Form F-3 or Form S-3 is not available for the registration of the
resale of Registrable Securities hereunder, the Company shall (i) register
the
resale of the Registrable Securities on another appropriate form reasonably
acceptable to the Required Holders and (ii) undertake to register the
Registrable Securities on Form F-3 or Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a Registration
Statement on Form F-3 or Form S-3 covering the Registrable Securities has been
declared effective by the SEC.
g. Sufficient
Number of ADSs Registered.
In the
event the number of Ordinary Shares available under a Registration Statement
filed pursuant to Section 2(a) is insufficient to cover all of the Registrable
Securities required to be covered by such Registration Statement or an
Investor’s allocated portion of the Registrable Securities pursuant to Section
2(c), the Company shall amend the applicable Registration Statement, or file
a
new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover at least the Required Registration Amount
as of the Trading Day immediately preceding the date of the filing of such
amendment or new Registration Statement, in each case, as soon as practicable,
but in any event not later than fifteen (15) Business Days after the necessity
therefor arises. The Company shall use its best efforts to cause such amendment
and/or new Registration Statement to become effective as soon as practicable
following the filing thereof. For purposes of the
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foregoing
provision, the number of Ordinary Shares available under a Registration
Statement shall be deemed “insufficient to cover all of the Registrable
Securities” if at any time the number of Ordinary Shares available for resale
under the Registration Statement is less than the product determined by
multiplying (i) the Required Registration Amount by (ii) 0.90. The
calculation set forth in the foregoing sentence shall be made without regard
to
any limitations on the exercise of the Warrants and such calculation shall
assume that the Warrants are then exercisable to purchase ADSs
and are
issuable at the then prevailing Exercise Price (as defined in the Warrants),
as
applicable.
h. Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement.
(1) On
September 14, 2006, as relief for the damages to the Investor by reason of
the
delay prior to such date in its ability to sell the ADSs (which remedy shall
not
be exclusive of any other remedies available at law or in equity), the Company
paid to the Investor an amount in cash equal to $129,166.67. Pursuant to the
Letter Agreement, the Company agreed to make certain other payments to the
Investor as consideration for the Investor entering into the Letter Agreement
and in lieu of any Registration Delay Payments which had not yet been made
and
would otherwise be incurred by the Company or due to the Investor.
Notwithstanding any provision of the Amended and Restated Registration Rights
Agreement, no amounts are due from the Company to the Investor under this
Agreement or the Amended and Restated Registration Rights Agreement in respect
of any Registration Delay Payments as of the date of this Agreement in respect
of the Company’s not having filed an Additional Registration Statement prior to
the date of this Agreement or the Additional Filing Deadline.
(2) If
a
Registration Statement covering all of the Additional Registrable Securities
required to be covered thereby and required to be filed by the Company pursuant
to this Agreement is not declared effective by the SEC on or before the
Additional Effectiveness Deadline (an “Additional
Effectiveness Failure”)
then,
as partial relief for the damages to any holder by reason of any such delay
in
or reduction of its ability to sell the ADSs (which remedy shall not be
exclusive of any other remedies available at law or in equity), the Company
shall pay to each Investor holding Registrable Securities relating to such
Registration Statement on the date of such Additional Effectiveness Failure
an
amount in cash equal to such Investor’s pro rata share of (a) eight
thousand three hundred thirty-three U.S. dollars (US$8,333) for each day in
the
period beginning on December 31, 2006 and ending on the date of such Additional
Effectiveness Failure and (b) eight thousand one hundred fifteen U.S.
dollars ($8,115) for each day in the period beginning on the date of this
Agreement and ending on the date of such Additional Effectiveness
Failure.
(3) In
the
event that:
(A) a
Registration Statement covering all of the Registrable Securities required
to be
covered thereby and required to be filed by the Company pursuant to this
Agreement is not, with respect to a Subsequent Registration Statement, declared
effective by the SEC on or before the Subsequent Effectiveness Deadline (a
“Subsequent
Effectiveness Failure”);
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(B) a
Registration Statement covering all of the Registrable Securities required
to be
covered thereby and required to be filed by the Company pursuant to this
Agreement is not, with respect to an Additional Registration Statement, filed
with the SEC on or before the Additional Filing Deadline (an “Additional
Filing Failure”)
(provided that, no Additional Filing Failure shall be deemed to have occurred
in
the event that the Company withdraws an Additional Registration Statement at
request of the SEC filed on or before the Additional Filing Deadline and files
a
subsequent Additional Registration Statement after the Additional Filing
Deadline and prior to the Additional Effectiveness Deadline);
(C) an
Additional Effectiveness Failure occurs; or
(D) on
any
day after the applicable Effective Date (I) sales of all of the Registrable
Securities required to be included on such Registration Statement cannot be
made
(other than during an Allowable Grace Period (as defined in Section 3(r))
pursuant to such Registration Statement (including, without limitation, because
of a failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of ADSs), or (II) the
Registrable Securities are not listed or included for quotation on an Eligible
Market or trading of the ADSs is suspended or halted thereon (other than during
an Allowable Trading Grace Period) (each, a “Maintenance
Failure”),
then,
as
partial relief for the damages to any holder by reason of any such delay in
or
reduction of its ability to sell the ADSs (which remedy shall not be exclusive
of any other remedies available at law or in equity), the Company shall pay
to
each holder of Registrable Securities relating to such Registration Statement
an
amount in cash equal to one and one half percent (1.5%) of the aggregate
Purchase Price of such Investor’s Registrable Securities included in such
Registration Statement on each of the following dates:
(X)
every
thirtieth day (pro rated for periods totaling less than thirty days) from the
date of a Subsequent Effectiveness Failure until such Subsequent Effectiveness
Failure is cured;
(Y) every
thirtieth day (pro rated for periods totaling less than thirty days) from the
date of an Additional Effectiveness Failure until such Additional Effectiveness
Failure is cured; and
(Z) every
thirtieth day (pro rated for periods totaling less than thirty days) from the
date of a Maintenance Failure until such Maintenance Failure is cured;
provided,
however,
that
such amount shall not be duplicative or owed more than once with respect to
any
day which falls within a period described in more than one of clauses (X) and
(Y) immediately preceding this proviso.
(4) The
payments to which a holder shall be entitled pursuant to this Section 2(h)
are referred to herein as “Registration
Delay Payments.”
Registration Delay Payments shall be deemed “incurred”, for purposes of the
following sentence, on the thirtieth day following the applicable failure and
such payments shall be made (except as set forth elsewhere in this Section
2(h))
on the earlier of (A) the last day of the calendar month during which
such
-10-
Registration
Delay Payments are incurred and (B) the fifth Business Day after the event
or
failure giving rise to the Registration Delay Payments is cured. In the event
the Company fails to make Registration Delay Payments in a timely manner, such
Registration Delay Payments shall bear interest at the rate of 1.0% per month
(prorated for partial months) until paid in full.
3. Related
Obligations.
At
such
time as the Company is obligated to file a Registration Statement with the
SEC
pursuant to Section 2(a), 2(b), 2(c) or 2(g), the Company will use its
reasonable best efforts to effect the registration of the Registrable Securities
consistent with the Plan of Distribution and, pursuant thereto, the Company
shall have the following obligations:
a. The
Company shall promptly prepare and file with the SEC a Registration Statement
with respect to the Registrable Securities and use its reasonable best efforts
to cause such Registration Statement relating to the Registrable Securities
to
become effective as soon as practicable after such filing (but in no event
later
than the applicable Effectiveness Deadline). The Company shall keep (i) each
Registration Statement effective pursuant to Rule 415 and (ii) the Company's
Form F-6, Registration Number 333-122158 effective (and such Form F-6 shall
have
available the number of ADSs to cover all of the Registrable Securities) at
all
times until the earlier of (i) the date as of which the Investors may sell
all
of the Registrable Securities covered by such Registration Statement without
restriction pursuant to Rule 144(k) (or successor thereto) promulgated under
the
1933 Act or (ii) the date on which the Investors shall have sold all the
Registrable Securities covered by such Registration Statement (the “Registration
Period”),
which
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein,
or
necessary to make the statements therein, in the light of the circumstances
in
which they were made, not misleading. The term “best efforts” shall mean, among
other things, that the Company shall submit to the SEC, within four (4) Business
Days after the later of the date that (i) Company learns that no review of
a
particular Registration Statement will be made by the staff of the SEC or that
the staff has no further comments on the Registration Statement, as the case
may
be, and (ii) the approval of Legal Counsel pursuant to Section 3(c) (which
approval is immediately sought), a request for acceleration of effectiveness
of
such Registration Statement to a time and date not later than 48 hours after
the
submission of such request.
b. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may
be
necessary to keep such Registration Statement effective at all times during
the
Registration Period, subject to Allowable Grace Periods, and, during such
period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement. In the case of amendments and supplements to a
Registration Statement which are required to be filed pursuant to this Agreement
(including pursuant to this Section 3(b)) by reason of the Company filing a
report on Form 10-K or 10-KSB, as applicable, Form 10-Q or 10-QSB, as
applicable, or Form 8-K or any analogous report under the Securities Exchange
Act of
-11-
1934,
as
amended (the “1934
Act”),
the
Company shall have incorporated such report by reference into such Registration
Statement, if applicable, or shall file such amendments or supplements with
the
SEC on the same day on which the 1934 Act report is filed which created the
requirement for the Company to amend or supplement such Registration
Statement.
c. The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least five (5) Business Days prior to its filing
with
the SEC and (ii) all amendments and supplements to all Registration Statements
(except for reports incorporated by reference therein) within a reasonable
number of days prior to their filing with the SEC, and (B) not file any
Registration Statement or amendment or supplement thereto in a form to which
Legal Counsel reasonably objects. The Company shall not submit a request for
acceleration of the effectiveness of a Registration Statement or any amendment
or supplement thereto without the prior approval of Legal Counsel, which consent
shall not be unreasonably withheld. The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff
of
the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC,
one
copy of any Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, and all exhibits and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto.
The
Company shall reasonably cooperate with Legal Counsel in performing the
Company’s obligations pursuant to this Section 3.
d. The
Company shall furnish to each Investor whose Registrable Securities are included
in any Registration Statement, without charge, (i) promptly after the same
is
prepared and filed with the SEC, at least one copy of such Registration
Statement and any amendment(s) thereto, including financial statements and
schedules, all documents incorporated therein by reference, if requested by
an
Investor, all exhibits and each preliminary prospectus, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the prospectus
included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may reasonably request)
and (iii) such other documents, including copies of any preliminary or final
prospectus, as such Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned by such
Investor.
e. The
Company shall use its reasonable best efforts to (i) register and qualify,
unless an exemption from registration and qualification applies, the resale
by
Investors of the Registrable Securities covered by a Registration Statement
under such other securities or “blue sky” laws of all applicable jurisdictions
in the United States, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be
required in connection therewith or as a condition thereto to (x) qualify to
do
business in any jurisdiction where it would
-12-
not
otherwise be required to qualify but for this Section 3(e), (y) subject
itself to general taxation in any such jurisdiction, or (z) file a general
consent to service of process in any such jurisdiction. The Company shall
promptly notify Legal Counsel and each Investor who holds Registrable Securities
of the receipt by the Company of any notification with respect to the suspension
of the registration or qualification of any of the Registrable Securities for
sale under the securities or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threatening of
any
proceeding for such purpose.
f. The
Company shall notify Legal Counsel and each Investor in writing, of the
happening of any event, as promptly as practicable after becoming aware of
such
event, as a result of which the prospectus included in a Registration Statement,
as then in effect, (1) includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading (provided that in no event shall such notice contain any
material, nonpublic information) or (2) otherwise fails to comply with then
current law or the rules and regulations of the SEC or other applicable
regulatory body, and, subject to Section 3(r), promptly prepare a
supplement or amendment to such Registration Statement to correct such untrue
statement or omission, and deliver ten (10) copies of such supplement or
amendment to Legal Counsel and each Investor (or such other number of copies
as
Legal Counsel or such Investor may reasonably request). The Company shall also
promptly notify Legal Counsel and each Investor in writing, (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to
Legal
Counsel and each Investor by facsimile or e-mail on the same day of such
effectiveness and by overnight mail), (ii) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus
or
related information, and (iii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
g. The
Company shall use its reasonable best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of a Registration Statement,
or
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest possible
moment and to notify Legal Counsel and each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
h. If
any
Investor is required under applicable securities law to be described in the
Registration Statement as an underwriter, at the reasonable request of any
Investor, the Company shall furnish to such Investor, on the date of the
effectiveness of the Registration Statement and thereafter from time to time
on
such dates as an Investor may reasonably request (i) a letter, dated such date,
from the Company’s independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to
underwriters in an underwritten public offering, addressed to the Investors,
and
(ii) an opinion, dated as of such date, of counsel representing the Company
for
purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the
Investors.
-13-
i. The
Company shall make available for inspection by (i) any Investor, (ii) Legal
Counsel and (iii) one firm of accountants or other agents retained by the
Investors (collectively, the “Inspectors”),
all
pertinent financial and other records, and pertinent corporate documents and
properties of the Company (collectively, the “Records”),
as
shall be necessary and reasonably requested by each Inspector, and cause the
Company’s officers, directors and employees, counsel and the Company’s
independent certified public accountants to supply all information which may
be
necessary and any Inspector may reasonably request; provided, however, that
each
Inspector shall agree to hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, and such inspector executes any
non-disclosure, non-use or similar document which may be reasonably required
by
Company, its independent certified public accountants or its counsel (and upon
execution of which the Company shall not be deemed to be in violation of its
agreement not to provide to such Investor any material, nonpublic information
or
to publicly disclose such information) unless (a) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or order from
a
court or government body of competent jurisdiction, or (c) the information
in
such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement of which the Inspector
has knowledge. Each Investor agrees that it shall, upon learning that disclosure
of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein (or in any other confidentiality agreement between
the Company and any Investor) shall be deemed to limit the Investors’ ability to
sell Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations.
j. The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to
the
public other than by disclosure in violation of this Agreement or any other
agreement of which the Company has knowledge. The Company agrees that it shall,
upon learning that disclosure of such information concerning an Investor is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt written notice to such Investor and allow
such
Investor, at the Investor’s expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such
information.
k. The
Company shall use its reasonable best efforts either to (i) cause all the
Registrable Securities covered by a Registration Statement to be listed on
each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure
designation and quotation of all the Registrable Securities covered by
the
-14-
Registration
Statement on the Nasdaq Global Market, or (iii) if, despite the Company’s best
efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful
in satisfying the preceding clause (i) or (ii), to secure the inclusion for
quotation on The Nasdaq Capital Market for such Registrable Securities and,
without limiting the generality of the foregoing, to use its best efforts to
arrange for at least two market makers to register with the National Association
of Securities Dealers, Inc. (“NASD”)
as
such with respect to such Registrable Securities. The Company shall pay all
fees
and expenses in connection with satisfying its obligation under this Section
3(k).
l. The
Company shall cooperate with the Investors who hold Registrable Securities
being
offered and, to the extent applicable, facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) , if applicable,
representing the Registrable Securities to be offered pursuant to a Registration
Statement and enable such certificates to be in such denominations or amounts,
as the case may be, as the Investors may reasonably request and registered
in
such names as the Investors may request.
m. If
reasonably requested by an Investor, the Company shall as soon as reasonably
practicable (i) incorporate in a prospectus supplement or post-effective
amendment such information as an Investor reasonably requests to be included
therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being offered or sold, the purchase price being paid
therefor and any other terms of the offering of the Registrable Securities
to be
sold in such offering; and (ii) make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters
to be
incorporated in such prospectus supplement or post-effective amendment if
reasonably requested by an Investor holding any Registrable
Securities.
n. The
Company shall use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.
o. The
Company shall make generally available to its security holders as soon as
practical, but not later than one hundred eighty (180) days after the close
of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period
beginning not later than the first day of the Company’s fiscal quarter next
following the effective date of the Registration Statement.
p. The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
q. Within
three (3) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver, and
shall
cause legal counsel for the Company to deliver, to the transfer agent for such
Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC substantially
in
the form attached hereto as Exhibit
A.
-15-
r. Notwithstanding
anything to the contrary herein, the Company may delay, including by delaying
the effectiveness of a Registration Statement or the filing of a Registration
Statement or an amendment (including a post-effective amendment) or supplement
to a Registration Statement, the disclosure of material, nonpublic information
concerning the Company the disclosure of which at the time is not, in the good
faith opinion of the Board of Directors of the Company and its counsel, in
the
best interest of the Company and, in the opinion of counsel to the Company,
otherwise required (a “Grace
Period”)
and,
as applicable, suspend sales of Registered Securities under an effective
Registration Statement; provided,
that
the Company shall promptly (i) notify the Investors in writing of the existence
of material, nonpublic information giving rise to a Grace Period (provided
that
in each notice the Company will not disclose the content of such material,
nonpublic information to the Investors) and the date on which the Grace Period
will begin, and (ii) notify the Investors in writing of the date on which the
Grace Period ends; and, provided further,
that no
Grace Period shall exceed 15 consecutive days and during any 365 day period
such
Grace Periods shall not exceed an aggregate of 45 days and the first day of
any
Grace Period must be at least 2 Trading Days after the last day of any prior
Grace Period (an “Allowable
Grace Period”).
For
purposes of determining the length of a Grace Period above, the Grace Period
shall begin on and include the date the holders receive the notice referred
to
in clause (i) and shall end on and include the later of the date the holders
receive the notice referred to in clause (ii) and the date referred to in such
notice. The provisions of Sections 2(g) and 3(e) hereof shall not be applicable
during the period of any Allowable Grace Period. Upon expiration of the Grace
Period, the Company shall again be bound by the first sentence of
Section 3(f) with respect to the information giving rise thereto unless
such material nonpublic information is no longer applicable. Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended certificates, if applicable, for ADSs to a transferee of an Investor
in accordance with the terms of the Securities Purchase Agreement in connection
with any sale of Registrable Securities with respect to which an Investor has
entered into a contract for sale, and delivered a copy of the prospectus
included as part of the applicable Registration Statement, prior to the
Investor’s receipt of the notice of a Grace Period and for which the Investor
has not yet settled.
s. Notwithstanding
anything to the contrary herein, the Company may suspend trading of its equity
securities on the applicable Eligible Market on which its equity securities
are
then trading, due to the existence of material, nonpublic information concerning
the Company the disclosure of which at the time is not, in the good faith
opinion of the Board of Directors of the Company and its counsel, in the best
interest of the Company (a “Trading
Grace Period”);
provided, that the Company shall promptly (i) notify the Investors in writing
of
the existence of such suspension (provided that in each notice the Company
will
not disclose the content of any material, nonpublic information to the
Investors) and the date on which the Trading Grace Period will begin, and (ii)
notify the Investors in writing of the date on which the Trading Grace Period
ends; and, provided further, that no Trading Grace Period shall exceed 5
consecutive days and during any 365 day period such Trading Grace Periods shall
not exceed an aggregate of 15 days and the first day of any Trading Grace Period
must be at least 2 Trading Days after the last day of any prior Trading Grace
Period (an “Allowable
Grace Trading Period”).
For
purposes of determining the length of a Trading Grace Period above, the Trading
Grace Period shall begin on and include the date the holders receive the notice
referred to in clause (i) and shall end on and include the later of the date
the
holders receive the notice referred
-16-
to
in
clause (ii) and the date referred to in such notice. The provisions of Sections
2(g) and 3(e) hereof shall not be applicable during the period of any Allowable
Trading Grace Period.
4. Obligations
of the Investors.
a. At
least
five (5) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing of
the
information the Company requires from each such Investor if such Investor elects
to have any of such Investor’s Registrable Securities included in such
Registration Statement. It shall be a condition precedent to the obligations
of
the Company to complete the registration pursuant to this Agreement with respect
to the Registrable Securities of a particular Investor that such Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect and maintain
the effectiveness of the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company
may
reasonably request.
b. Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder, unless
such Investor has notified the Company in writing of such Investor’s election to
exclude all of such Investor’s Registrable Securities from such Registration
Statement.
c. Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or the first
sentence of Section 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to any Registration Statement(s)
covering such Registrable Securities until such Investor’s receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(g) or
the first sentence of Section 3(f) or receipt of notice that no supplement
or amendment is required. Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to deliver unlegended certificates, if
applicable, for ADSs to a transferee of an Investor in accordance with the
terms
of the Securities Purchase Agreement in connection with any sale of Registrable
Securities with respect to which an Investor has entered into a contract for
sale prior to the Investor’s receipt of a notice from the Company of the
happening of any event of the kind described in Section 3(g) or the first
sentence of Section 3(f) and for which the Investor has not yet
settled.
d. Each
Investor covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it in connection with sales of
Registrable Securities pursuant to a Registration Statement.
5. Expenses
Of Registration.
All
reasonable expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to Sections
2 and 3, including, without limitation, all registration, listing and
qualifications fees, printers and
-17-
accounting
fees, and fees and disbursements of counsel for the Company shall be paid by
the
Company. The Company shall also reimburse Castlerigg Master Investments Ltd.
for
the fees and disbursements of Legal Counsel incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3 of this
Agreement which amount shall be limited to $10,000 in the
aggregate.
6. Indemnification.
In
the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
a. To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Investor, the directors, officers, partners,
members, employees, agents, representatives of, and each Person, if any, who
controls any Investor within the meaning of the 1933 Act or the 1934 Act (each,
an “Indemnified
Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”),
to
which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon: (i) any untrue statement or alleged untrue statement of
a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other “blue sky” laws of any jurisdiction in
which Registrable Securities are offered (“Blue
Sky Filing”),
or
the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented,
if
the Company files any amendment thereof or supplement thereto with the SEC)
or
the omission or alleged omission to state therein any material fact necessary
to
make the statements made therein, in light of the circumstances under which
the
statements therein were made, not misleading, (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to a Registration Statement or (iv) any material violation
of this Agreement (the matters in the foregoing clauses (i) through (iv) being,
collectively, “Violations”).
Subject to Section 6(c), the Company shall reimburse the Indemnified Persons,
promptly as such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Indemnified Person
for such Indemnified Person expressly for use in connection with the preparation
of the Registration Statement or any such amendment thereof or supplement
thereto, if such prospectus
-18-
was
timely made available by the Company pursuant to Section 3(d); (ii) shall not
be
available to the extent such Claim is based on a failure of the Investor to
deliver or to cause to be delivered the prospectus made available by the
Company, including a corrected prospectus, if such prospectus or corrected
prospectus was timely made available by the Company pursuant to Section 3(d);
and (iii) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld or delayed. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on
behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9.
b. In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement and each Person, if any, who controls
the
Company within the meaning of the 1933 Act or the 1934 Act (each, an
“Indemnified
Party”),
against any Claim or Indemnified Damages to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim
or
Indemnified Damages arise out of or are based upon any Violation, in each case
to the extent, and only to the extent, that such Violation occurs in reliance
upon and in conformity with written information furnished to the Company by
such
Investor expressly for use in connection with such Registration Statement;
and,
subject to Section 6(c), such Investor will reimburse any legal or other
expenses reasonably incurred by an Indemnified Party in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Investor, which consent shall not be unreasonably withheld
or
delayed; provided, further, however, that the Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages as
does
not exceed the net proceeds to such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or
on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any preliminary prospectus shall
not inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or
supplemented.
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and 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
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the
-19-
fees
and
expenses of not more than one counsel for such Indemnified Person or Indemnified
Party to be paid by the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person or Indemnified Party and the indemnifying party would
be inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. In the case of an Indemnified Person, legal counsel
referred to in the immediately preceding sentence shall be selected by the
Required Holders to which the Claim relates. The Indemnified Party or
Indemnified Person shall cooperate reasonably with the indemnifying party in
connection with any negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto.
No
indemnifying party shall be liable for any settlement of any action, claim
or
proceeding effected without its prior written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or condition
its
consent. No indemnifying party shall, without the prior written consent of
the
Indemnified Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation. Following indemnification as provided
for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties,
firms
or corporations relating to the matter for which indemnification has been made.
The failure to deliver written notice 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 Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party
is
prejudiced in its ability to defend such action.
d. The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as and
when Indemnified Damages are incurred and applicable bills are
received.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
f. Nothing
herein shall the right of any party to this Agreement to bring a contractual
claim against any other party to this Agreement for a breach of this
Agreement.
7. Contribution.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no person involved
in the sale of Registrable
-20-
Securities
which person is guilty of fraudulent misrepresentation (within the meaning
of
Section 11(f) of the 0000 Xxx) in connection with such sale shall be
entitled to contribution from any person involved in such sale of Registrable
Securities who was not guilty of fraudulent misrepresentation; and (ii)
contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities pursuant to such Registration Statement.
8. Reports
Under The 1934 Act.
Until
the
date on which (A) the Investors shall have sold all the Conversion Shares and
the Warrant Shares and (B) none of the Notes or Warrants is outstanding, with
a
view to making available to the Investors the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that
may
at any time permit the Investors to sell securities of the Company to the public
without registration (“Rule
144”),
the
Company agrees to:
a. make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
b. file
with
the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements (it being understood that nothing herein shall
limit the Company’s obligations under Section 4(c) of the Securities Purchase
Agreement) and the filing of such reports and other documents is required for
the applicable provisions of Rule 144; and
c. furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company, if true, that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the
1934
Act, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, to the extent
not
available on XXXXX, and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule
144
without registration.
9. Assignment
of Registration Rights.
The
rights under this Agreement shall be automatically assignable by the Investors
to any transferee of Registrable Securities if: (i) the Investor agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within three (3) Business Days after
such assignment; (ii) the Company is, within three (3) Business Days after
such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect
to
which such registration rights are being transferred or assigned; (iii)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the 1933
Act
and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all
of
the provisions contained herein; and
-21-
(v)
such
transfer shall have been made in accordance with the applicable requirements
of
the Securities Purchase Agreement.
10. Amendment
of Registration Rights.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon each Investor and the Company. No such amendment shall
be
effective to the extent that it applies to less than all of the holders of
the
Registrable Securities. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of
this
Agreement unless the same consideration also is offered to all of the parties
to
this Agreement.
11. Miscellaneous.
a. A
Person
is deemed to be a holder of Registrable Securities whenever such Person owns
or
is deemed to own of record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the
basis
of instructions, notice or election received from the such record owner of
such
Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall
be:
If
to the
Company:
pSivida
Limited
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
U.S.A
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Attention:
General
Counsel
-22-
With
a
copy (which shall not constitute notice) to:
Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
X.X. 00000
X.X.X.
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attention:
Xxxxxxxx
Xxxxxxx, Esq.
If
to
Legal Counsel:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Attention:
Xxxxxxx
Xxxxx, Esq.
If
to a
Buyer, to its address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer’s representatives as set forth on the
Schedule of Buyers, or to such other address and/or facsimile number and/or
to
the attention of such other person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by
the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. The
Company hereby irrevocably appoints pSivida Inc., 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 ("pSivida
Inc.")
as its
agent for the receipt of service of process in the United States. The Company
agrees that any document may be effectively served on it in connection with
any
action, suit or proceeding in the United States by service on its agents. The
Buyers consent and agree that the Company may, in its reasonable discretion,
irrevocably appoint a substitute agent for the receipt of service of process
located within the Untied States, and that upon such appointment, the
appointment of pSivida Inc. may be revoked.
(1)
Any
document shall be deemed to have been duly served if marked for the attention
of
the agent at its address set forth above or such other address in the United
States as may be notified to the party wishing to serve the document and
(a) left at the specified address if its receipt is acknowledged in
writing; or (b) sent to the specified address by post, registered mail
return receipt requested. In the case of (a), the document will be deemed to
have been duly served when it is left and signed for. In the case of (b), the
document shall be deemed to have been duly served when received and
acknowledged.
-23-
(2)
If the
Company's agent at any time ceases for any reason to act as such, the Company
shall appoint a replacement agent having an address for service in the United
States and shall notify each Buyer of the name and address of the replacement
agent. Failing such appointment and notification, the Buyer shall be entitled
by
notice to the Company to appoint a replacement agent to act on the Company's
behalf. The provisions of this Section 11(c) applying to service on an agent
apply equally to service on a replacement agent.
d. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
e. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to
such
party at the address for such notices to it under this Agreement and agrees
that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
f. This
Agreement and the other Transaction Documents (as defined in the Second
Amendment Agreement) constitute the entire agreement among the parties hereto
with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement and the other Transaction
Documents supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
g. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
-24-
h. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
i. This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
j. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
k. All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders, determined as if all of the Warrants then outstanding
have been exercised for Registrable Securities without regard to any limitations
on exercises of the Warrants.
l. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
m. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
n. The
obligations of each Buyer hereunder are several and not joint with the
obligations of any other Buyer, and no provision of this Agreement is intended
to confer any obligations on any Buyer vis a vis any other Buyer. Nothing
contained herein, and no action taken by any Buyer pursuant hereto, shall be
deemed to constitute the Buyers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Buyers
are
in any way acting in concert or as a group with respect to such obligations
or
the transactions contemplated herein.
[Signature
page follows.]
-25-
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Registration Rights Agreement to be duly executed as of the date first written
above.
|
COMPANY:
|
|
|
PSIVIDA
LIMITED
By:
/s/
Xxxxxxx X. Xxxx
Name:
Xxxxxxx
X. Xxxx
Title:
Vice
President, Finance and Chief Financial Officer
|
|
| BUYERS: | |
|
CASTLERIGG
MASTER INVESTMENTS LTD.
|
|
|
By:
/s/
Xxxxxxx X’Xxxxx
Name:
Xxxxxxx X’Xxxxx
Title:
Chief Financial Officer
|
SCHEDULE
OF BUYERS
|
Buyer
|
Buyer
Address
and
Facsimile Number
|
Buyer’s
Representative’s Address
and
Facsimile Number
|
||
|
Castlerigg
Master Investments
|
c/o
Sandell Asset Management Corp.
00
Xxxx 00xx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Cem Hacioglu/Xxxxxxx Xxxxxxx
Facsimile: (000)
000-0000
Telephone: (000)
000-0000
|
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
|
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxx
| Re: |
PSIVIDA
LIMITED
|
Ladies
and Gentlemen:
We
have
acted as special U.S. counsel to pSivida
Limited, an
Australian corporation (the “Company”),
in
connection with that certain Second Amended and Restated Amendment Agreement,
dated as of May 15, 2007 (the “Purchase
Agreement”),
entered into by and among the Company and the buyers named therein
(collectively, the “Buyers”),
pursuant to which the Company issued to the Buyers warrants (the “Warrants”)
exercisable for ADSs of the Company (the “Warrant
Shares”).
In
connection with the Purchase Agreement, the Company entered into a Second
Amended and Restated Registration Rights Agreement with the Buyers (the
“Registration
Rights Agreement”)
pursuant to which the Company agreed, among other things, to register under
the
Securities Act of 1933, as amended (the “1933
Act”)
the
resale of the Registrable Securities (as defined in the Registration Rights
Agreement), including, among other securities, the ADSs issuable upon exercise
of the Warrants. In connection with the Company’s obligations under the
Registration Rights Agreement, the Company filed a Registration Statement on
Form F-3 (File No. ___________________) (the “Registration
Statement”)
with
the Securities and Exchange Commission (the “SEC”)
relating to the Initial Registrable Securities which names each of the Buyers
as
a selling security holder thereunder (the “Selling
Security Holders”).
In
connection with the foregoing, we advise you that the SEC’s website indicates
that the SEC entered an order declaring the Registration Statement effective
under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF
EFFECTIVENESS], and we have no knowledge, after telephonic inquiry of a member
of the SEC’s staff, that any stop order suspending its effectiveness has been
issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC, and that to our knowledge the Registrable Securities
are
available for resale under the 1933 Act pursuant to the Registration
Statement.
This
letter shall serve as our standing opinion to you that the ADSs are freely
transferable by the Selling Security Holders pursuant to the Registration
Statement. You need not require further letters from us to effect any future
legend-free issuance or reissuance of ADSs to the Selling Security Holders
as
contemplated by the Company’s Irrevocable Transfer Agent Instructions,
dated
May
15, 2007.
Very
truly yours,
[ISSUER’S
COUNSEL]
By:_____________________
CC: [LIST
NAMES OF HOLDERS]
EXHIBIT
B
SELLING
STOCKHOLDERS
The
ADSs
being offered by the selling stockholders are issuable (i) upon conversion
of
the convertible notes, (ii) as interest on the convertible notes and (iii)
upon
exercise of the warrants. For additional information regarding the notes and
warrants, see “Private Placement of Convertible Notes and Warrants” above. We
are registering the ADSs in order to permit the selling stockholders to offer
the ADSs for resale from time to time. Except for the ownership of the notes
and
the warrants, the selling stockholders have not had any material relationship
with us within the past three years.
The
table
below lists the selling stockholders and other information regarding the
beneficial ownership of the ordinary shares underlying the ADSs by each of
the
selling stockholders. The second column lists the number of ordinary shares
beneficially owned (directly or indirectly through ADSs) by each selling
stockholder, based on its ownership of the notes and the warrants, as of
________, 2007, assuming conversion of all the notes and exercise of all
warrants held by the selling stockholders on that date, without regard to any
limitations on conversions or exercise.
The
third
column lists the ordinary shares being offered by this prospectus by the selling
stockholders.
In
accordance with the terms of registration rights agreements with the holders
of
the notes and the warrants, this prospectus generally covers the resale of
at
least 130% of the sum of (i) the maximum number of ADSs issuable upon conversion
of the notes (assuming that the notes are convertible at their initial
Conversion Price and without taking into account any limitations on the
conversion of the notes set forth in such notes), (ii) the maximum number of
ADSs issuable upon exercise of the related warrants (without taking into account
any limitations on the exercise of the warrants set forth in the warrants)
and
(iii) as interest on the convertible notes, in each case as of the Trading
Day
immediately preceding the date this registration statement was initially filed
with the SEC. Because the conversion price of the notes and the exercise price
of the warrants may be adjusted, the number of ADSs that will actually be issued
may be more or less than the number of ADSs being offered by this prospectus.
The fourth column assumes the sale of all of the ADSs offered by the selling
stockholders pursuant to this prospectus.
Under
the
terms of the notes and the warrants, a selling stockholder may not convert
the
notes, or exercise the warrants, to the extent such conversion or exercise
would
cause such selling stockholder, together with its affiliates, to beneficially
own a number of ordinary shares (directly or indirectly through ADSs) which
would exceed 4.99% of our then outstanding ordinary shares following such
conversion or exercise, excluding for purposes of such determination ordinary
shares issuable upon conversion of the notes which have not been converted
and
upon exercise of the warrants which have not been exercised. The number of
shares in the second column does not reflect this limitation. The selling
stockholders may sell all, some or none of their ADSs in this offering. See
“Plan of Distribution.”
|
Name
of Selling Stockholder
|
Number
of ADSs Owned
Prior
to Offering
|
Maximum
Number of ADSs
to
be Sold
Pursuant
to this Prospectus
|
Number
of ADSs Owned
After
Offering
|
|||
|
Castlerigg
Master Investments (1)
|
0
|
| (1) |
Xxxxxxx
Asset Management Corp. (“SAMC”) is the investment manager of Castlerigg
Master Investments Ltd. (“Master”). Xxxxxx Xxxxxxx is the controlling
person of SAMC and may be deemed to share beneficial ownership of
the
shares beneficially owned by Master. Castlerigg International Ltd.
(“Castlerigg International”) is the controlling shareholder of Castlerigg
International Holdings Limited (“Holdings”). Holdings is the controlling
shareholder of Master. Each of Holdings and Castlerigg International
may
be deemed to share beneficial ownership of the shares beneficially
owned
by Castlerigg Master Investments. SAMC, Xx. Xxxxxxx, Holdings and
Castlerigg International each disclaims beneficial ownership of the
securities with respect to which indirect beneficial ownership is
described.
|
PLAN
OF DISTRIBUTION
We
are
registering the ADSs issuable upon conversion of the notes and upon exercise
of
the warrants and as interest on the convertible notes to permit the resale
of
these ADSs by the holders of the notes and the warrants from time to time after
the date of this prospectus. We will not receive any of the proceeds from the
sale by the selling stockholders of the ADSs. We will bear all fees and expenses
incident to our obligation to register the ADSs.
The
selling stockholders may sell all or a portion of the ADSs beneficially owned
by
them and offered hereby from time to time directly or through one or more
underwriters, broker-dealers or agents. If the ADSs are sold through
underwriters or broker-dealers, the selling stockholders will be responsible
for
underwriting discounts or commissions or agent’s commissions. The ADSs may be
sold in one or more transactions at fixed prices, at prevailing market prices
at
the time of the sale, at varying prices determined at the time of sale, or
at
negotiated prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
|
·
|
on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
|
|
·
|
in
the over-the-counter market;
|
|
·
|
in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
|
|
·
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the ADSs
as
agent but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
short
sales;
|
|
·
|
pursuant
to Rule 144 under the Securities
Act;
|
|
·
|
broker-dealers
may agree with the selling securityholders to sell a specified number
of
such ADSs
at
a stipulated price per ADR;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
If
the
selling stockholders effect such transactions by selling ADSs to or through
underwriters, broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts, concessions or
commissions from the selling stockholders or commissions from purchasers of
the
ADSs for whom they may act as agent or to whom they may sell as principal (which
discounts, concessions or commissions as to particular underwriters,
broker-dealers or agents may be in excess of those customary in the types of
transactions involved). In connection with sales of the ADSs or otherwise,
the
selling stockholders may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the ADSs in the course of hedging
in
positions they assume. The selling stockholders may also sell ADSs short and
deliver ADSs covered by this prospectus to close out short positions. The
selling stockholders may also loan or pledge ADSs to broker-dealers that in
turn
may sell such ADSs.
The
selling stockholders may pledge or grant a security interest in some or all
of
the notes, warrants or the ADSs owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the ADSs from time to time pursuant to this prospectus or any
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act of 1933, as amended, amending, if necessary, the list
of
selling stockholders to include the pledgee, transferee or other successors
in
interest as selling stockholders under this prospectus. The selling stockholders
also may transfer and donate the ADSs in other circumstances in which case
the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The
selling stockholders and any broker-dealer participating in the distribution
of
the ADSs may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any
such broker-dealer may be deemed to be underwriting commissions or discounts
under the Securities Act. At the time a particular offering of the ADSs is
made,
a prospectus supplement, if required, will be distributed which will set forth
the aggregate amount of ADSs being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholders and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under
the
securities laws of some states, the ADSs may be sold in such states only through
registered or licensed brokers or dealers. In addition, in some states the
ADSs
may not be sold unless such ADSs have been registered or qualified for sale
in
such state or an exemption from registration or qualification is available
and
is complied with.
There
can
be no assurance that any selling stockholder will sell any or all of the ADSs
registered pursuant to the shelf registration statement, of which this
prospectus forms a part.
The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of
1934,
as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the ADSs by the selling stockholders and any
other
participating person. Regulation M may also restrict the ability of any person
engaged in the distribution of the ADSs to engage in market-making activities
with respect to the ADSs. All of the foregoing may affect the marketability
of
the ADSs and the ability of any person or entity to engage in market-making
activities with respect to the ADSs.
We
will
pay all expenses of the registration of the ADSs pursuant to the registration
rights agreement, estimated to be $[ ] in total,
including, without limitation, Securities and Exchange Commission filing fees
and expenses of compliance with state securities or “blue sky” laws; provided,
however, that a selling stockholder will pay all underwriting discounts and
selling commissions, if any. We will indemnify the selling stockholders against
liabilities, including some liabilities under the Securities Act, in accordance
with the registration rights agreements, or the selling stockholders will be
entitled to contribution. We may be indemnified by the selling stockholders
against civil liabilities, including liabilities under the Securities Act,
that
may arise from any written information furnished to us by the selling
stockholder specifically for use in this prospectus, in accordance with the
related registration rights agreements, or we may be entitled to
contribution.
Once
sold
under the shelf registration statement, of which this prospectus forms a part,
the ADSs will be freely tradable in the hands of persons other than our
affiliates.
