REGISTRATION RIGHTS AGREEMENT
Exhibit 2.1
TABLE OF CONTENTS
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Page
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ARTICLE 1
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DEFINITIONS
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Section 1.01. Defined Terms
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1
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Section 1.02. General Interpretive Principles
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3
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ARTICLE 2
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REGISTRATION RIGHTS
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Section 2.01. Registration
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4
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Section 2.02. Piggyback Registrations
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6
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Section 2.03. Selection of Underwriter(s)
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7
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Section 2.04. Registration Procedures
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7
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Section 2.05. Holdback Agreements
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11
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Section 2.06. Underwriting Agreement in Underwritten
Offerings
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11
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Section 2.07. Registration Expenses Paid By
Company
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12
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Section 2.08. Indemnification
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12
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Section 2.09. Reporting Requirements; Rule 144
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14
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ARTICLE 3
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MISCELLANEOUS
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Section 3.01. Term
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15
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Section 3.02. Notices
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15
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Section 3.03. Successors, Assigns and
Transferees
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15
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Section 3.04. GOVERNING LAW; NO JURY TRIAL
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16
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Section 3.05. Specific Performance
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16
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Section 3.06. Headings
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16
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Section 3.07. Severability
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16
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Section 3.08. Amendment; Waiver
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16
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Section 3.09. Further Assurances
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17
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Section 3.10. Counterparts
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17
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i
This
REGISTRATION RIGHTS AGREEMENT, dated as of February 1, 2018 (this
“Agreement”), is
by and between Xxxxxx Ltd., an exempted company limited by
shares incorporated in Bermuda (the “Company”), and Dufry International
AG, a Swiss stock corporation (“Dufry”).
W I T N E S E T H:
WHEREAS, the
Company is currently contemplating an underwritten initial public
offering (“IPO”)
of certain of its Class A Common Shares (as defined below);
and
WHEREAS, the
Company desires to grant registration rights to Dufry on the terms
and conditions set out in this Agreement;
NOW,
THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section
1.01. Defined Terms. As used in this
Agreement, the following terms shall have the following
meanings:
“Action” means any demand, action,
suit, countersuit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority or any
federal, state, local, foreign or international arbitration or
mediation tribunal.
“Affiliate” of any Person means a
Person that controls, is controlled by, or is under common control
with such Person; provided,
however, that, for purposes
of this Agreement, the Company and its Subsidiaries shall not be
considered to be “Affiliates” of Dufry and its
Subsidiaries (other than the Company and its Subsidiaries), and
Dufry and its Subsidiaries (other than the Company and its
Subsidiaries) shall not be considered to be “Affiliates” of the Company or its
Subsidiaries. As used herein, “control” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by
contract or otherwise.
“Agreement” has the meaning set
forth in the preamble to this Agreement.
“Business Day” means any day other
than a Saturday, Sunday or a day on which banking institutions are
authorized or obligated by law to be closed in New York, New York
or Zurich, Switzerland.
“Class A Common Shares” means the
Class A common shares, par value $0.001 per share, of the Company
and any shares into which such Class A Common Shares may be
converted.
“Company Notice” has the meaning
set forth in Section 2.01(a).
“Company Takedown Notice” has the
meaning set forth in Section 2.01(f).
“Demand Registration” has the
meaning set forth in Section 2.01(a).
“Dufry” has the meaning set forth
in the preamble to this Agreement and shall include its successors,
by merger, acquisition, reorganization or otherwise.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
1
“Governmental Authority” means any
nation or government, any state, municipality or other political
subdivision thereof, and any entity, body, agency, commission,
department, board, bureau, court, tribunal or other
instrumentality, whether federal, state, local, domestic, foreign
or multinational, exercising executive, legislative, judicial,
regulatory, administrative or other similar functions of, or
pertaining to, government and any executive official
thereof.
“Holder” shall mean Dufry or any of
its Affiliates, so long as such Person holds any Registrable
Securities, and any Person owning Registrable Securities who is a
permitted transferee of rights under Section
3.03.
“Initiating Holder” has the meaning
set forth in Section 2.01(a).
“IPO” has the meaning set forth in
the recitals to this Agreement.
“Loss” or “Losses” has the meaning set forth
in Section 2.08(a).
“Person” means an individual, a
general or limited partnership, a corporation, a trust, a joint
venture, an unincorporated organization, a limited liability
entity, any other entity and any Governmental
Authority,
“Piggyback Registration” has the
meaning set forth in Section 2.02(a).
“Prospectus” means the prospectus
included in any Registration Statement, all amendments and
supplements to such prospectus, including post-effective
amendments, and all other material incorporated by reference in
such prospectus.
“Registrable Securities” means any
Shares and any securities issued or issuable directly or indirectly
with respect to, in exchange for, upon the conversion of or in
replacement of the Shares, whether by way of a dividend or
distribution or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation, exchange or other
reorganization; provided
that any such Shares shall cease to be Registrable Securities if
(i) they have been registered and sold pursuant to an effective
Registration Statement, (ii) they have been transferred by a Holder
in a transaction in which the Holder’s rights under this
Agreement are not, or cannot be, assigned, (iii) they may be sold
pursuant to Rule 144 under the Securities Act without limitation
thereunder on volume or manner of sale, or (iv) they have ceased to
be outstanding.
“Registration” means a registration
with the SEC of the offer and sale to the public of Class A Common
Shares under a Registration Statement. The terms
“Register,”
“Registered” and
“Registering”
shall have a correlative meaning.
“Registration Expenses” shall mean
all expenses incident to the Company’s performance of or
compliance with this Agreement, including all (i) registration,
qualification and filing fees; (ii) expenses incurred in connection
with the preparation, printing and filing under the Securities Act
of the Registration Statement, any Prospectus and any issuer free
writing prospectus and the distribution thereof; (iii) the fees and
expenses of the Company’s counsel and independent
accountants; (iv) the fees and expenses incurred in connection with
the registration or qualification and determination of eligibility
for investment of the Shares under the state or foreign securities
or blue sky laws and the preparation, printing and distribution of
a World Sky Memorandum (including the related fees and expenses of
counsel); (v) the costs and charges of any transfer agent and any
registrar; (vii) all expenses and application fees incurred in
connection with any filing with, and clearance of an offering by,
Financial Industry Regulatory Authority, Inc.; (vii) expenses
incurred in connection with any “road show” presentation to
potential investors; (viii) printing expenses, messenger, telephone
and delivery expenses; (ix) internal expenses of the Company
(including all salaries and expenses of employees of the Company
performing legal or accounting duties); and (x) fees and expenses
of listing any Registrable Securities on any securities exchange on
which Class A Common Shares are then listed; but excluding any
Selling Expenses.
2
“Registration Period” has the
meaning set forth in Section 2.01(c).
“Registration Rights” shall mean
the rights of the Holders to cause the Company to Register
Registrable Securities pursuant to this Agreement.
“Registration Statement” means any
registration statement of the Company filed with, or to be filed
with, the SEC under the rules and regulations promulgated under the
Securities Act, including the related Prospectus, amendments and
supplements to such registration statement, including
post-effective amendments, and all exhibits and all material
incorporated by reference in such registration
statement.
“SEC” has the meaning set forth in
the recitals to this Agreement.
“Securities Act” means the U.S.
Securities Act of 1933, as amended.
“Selling Expenses” means all
underwriting discounts, selling commissions and transfer taxes
applicable to the sale of Registrable Securities
hereunder.
“Shares” means all Class A Common
Shares that are beneficially owned by Dufry or any of its
Affiliates or any permitted transferee of rights under
Section 3.03 from time to time, whether or not held
immediately following the IPO.
“Shelf Registration” means a
Registration Statement of the Company for an offering to be made on
a delayed or continuous basis of Class A Common Shares pursuant to
Rule 415 under the Securities Act (or similar provisions then in
effect).
“Subsidiary” means, when used with
respect to any Person, (a) a corporation in which such Person or
one or more Subsidiaries of such Person, directly or indirectly,
owns capital stock having a majority of the total voting power in
the election of directors of all outstanding shares of all classes
and series of capital stock of such corporation entitled generally
to vote in such election; and (b) any other Person (other than a
corporation) in which such Person or one or more Subsidiaries of
such Person, directly or indirectly, has (i) a majority ownership
interest or (ii) the power to elect or direct the election of a
majority of the members of the governing body of such first-named
Person.
“Takedown Notice” has the meaning
set forth in Section 2.01(f).
“Underwritten Offering” means a
Registration in which securities of the Company are sold to an
underwriter or underwriters on a firm commitment basis for
reoffering to the public.
Section
1.02. General Interpretive Principles.
Whenever used in this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, any noun or
pronoun shall be deemed to include the plural as well as the
singular and to cover all genders. Whenever the words
“include,”
“includes” or
“including” are
used in this Agreement, they shall be deemed to be followed by the
words “without
limitation.” Unless otherwise specified, the terms
“hereof,”
“herein,”
“hereunder” and
similar terms refer to this Agreement as a whole (including the
exhibits hereto), and references herein to Articles and Sections
refer to Articles and Sections of this Agreement. Except as
otherwise indicated, all periods of time referred to herein shall
include all Saturdays, Sundays and holidays; provided, however, that if the date to perform
the act or give any notice with respect to this Agreement shall
fall on a day other than a Business Day, such act or notice may be
performed or given timely if performed or given on the next
succeeding Business Day. References to a Person are also to its
permitted successors and assigns. The parties have participated
jointly in the negotiation and drafting of this Agreement and, in
the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the
parties, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
3
ARTICLE 2
REGISTRATION
RIGHTS
(a) Request. Any Holder(s) of Registrable
Securities (collectively, the “Initiating Holder”) shall have the
right to request that the Company file a Registration Statement
with the SEC on the appropriate registration form for all or part
of the Registrable Securities held by such Holder once such Holder
is no longer subject to the lock-up applicable to it entered into
in connection with the IPO (which may be due to the expiration or
waiver of such lock-up with respect to such Registrable Securities)
by delivering a written request to the Company specifying the kind
and number of shares of Registrable Securities such Holder wishes
to Register and the intended method of distribution thereof (a
“Demand
Registration”). The Company shall (i) within 10
Business Days of the receipt of such request, give written notice
of such Demand Registration to all Holders of Registrable
Securities (the “Company
Notice”), (ii) use its reasonable best efforts to file
a Registration Statement in respect of such Demand Registration
within 45 days of receipt of the request, and (iii) use its
reasonable best efforts to cause such Registration Statement to
become effective as soon as reasonably practicable thereafter. The
Company shall include in such Registration all Registrable
Securities that the Holders request to be included within the 10
Business Days following their receipt of the Company
Notice.
(b) Limitations of Demand Registrations.
There shall be no limitation on the number of Demand Registrations
pursuant to Section 2.01(a); provided, however, that the Holders may not
require the Company to effect more than ten Demand Registrations in
a 12-month period. In the event that any Person shall have received
rights to Demand Registrations pursuant to Section 3.03, and
such Person shall have made a Demand Registration request, such
request shall be treated as having been made by the Holder(s). The
Registrable Securities requested to be Registered pursuant to
Section 2.01(a) must represent an (i) aggregate offering
price of Registrable Securities that is reasonably be expected to
equal at least $10,000,000 or (ii) all of the remaining Registrable
Securities owned by the requesting Holder and its
Affiliates.
(c) Effective Registration. The Company
shall be deemed to have effected a Registration for purposes of
Section 2.01(b) if the Registration Statement is declared
effective by the SEC or becomes effective upon filing with the SEC,
and remains effective until the earlier of (i) the date when all
Registrable Securities thereunder have been sold and (ii) 40 days
from the effective date of the Registration Statement (the
“Registration
Period”). No Registration shall be deemed to have been
effective if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with
such Registration are not satisfied by reason of the Company. If,
during the Registration Period, such Registration is interfered
with by any stop order, injunction or other order or requirement of
the SEC or other Governmental Authority, the Registration Period
shall be extended on a day-for-day basis for any period the Holder
is unable to complete an offering as a result of such stop order,
injunction or other order or requirement of the SEC or other
Governmental Authority.
(d) Underwritten Offering. If the
Initiating Holder so indicates at the time of its request pursuant
to Section 2.01(a), such offering of Registrable Securities
shall be in the form of an Underwritten Offering and the Company
shall include such information in the Company Notice. In the event
that the Initiating Holder intends to distribute the Registrable
Securities by means of an Underwritten Offering, no Holder may
include Registrable Securities in such Registration unless such
Holder, subject to the limitations set forth in Section
2.06, (i) agrees to sell its Registrable Securities on the basis
provided in the applicable underwriting arrangements; (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and
(iii) cooperates with the Company’s reasonable requests in
connection with such Registration (it being understood that the
Company’s failure to perform its obligations hereunder, which
failure is caused by such Holder’s failure to cooperate, will
not constitute a breach by the Company of this
Agreement).
4
(e) Priority of Securities in an Underwritten
Offering. If the managing underwriter or underwriters of a
proposed Underwritten Offering, including an Underwritten Offering
from a Shelf Registration, pursuant to this Section 2.01
informs the Company and the Holders with Registrable Securities in
the proposed Underwritten Offering in writing that, in its or their
opinion, the number of securities requested to be included in such
Underwritten Offering exceeds the number that can be sold in such
Underwritten Offering without being likely to have a significant
adverse effect on the price, timing or distribution of the
securities offered or the market for the securities offered, then
the number of securities to be included in such Underwritten
Offering shall be reduced in the following order of priority:
first, there shall be
excluded from the Underwritten Offering any securities to be sold
for the account of any selling securityholder other than the
Holders; second, there
shall be excluded from the Underwritten Offering any securities to
be sold for the account of the Company; third, there shall be excluded from the
Underwritten Offering any securities to be sold for the account of
Holders other than Dufry and its Affiliates that have been
requested to be included therein pro rata based on the number of
Registrable Securities owned by each such Holder; and finally, the number of Registrable
Securities of Dufry and its Affiliates shall be reduced, in each
case to the extent necessary to reduce the total number of
securities to be included in such offering to the number
recommended by the managing underwriter or
underwriters.
(f) Shelf Registration. At any time after
the date hereof when the Company is eligible to Register the
applicable Registrable Securities on Form F-3 (or a successor form)
and the Holder may request Demand Registrations, the requesting
Holders may request the Company to effect a Demand Registration as
a Shelf Registration. There shall be no limitations on the number
of Underwritten Offerings pursuant to a Shelf Registration;
provided, however, that the Holders may not
require the Company to effect more than ten Underwritten Offerings
in a 12-month period. Any Holder of Registrable Securities included
on a Shelf Registration shall have the right to request that the
Company cooperate in a shelf takedown at any time, including an
Underwritten Offering, by delivering a written request thereof to
the Company specifying the kind and number of shares of Registrable
Securities such Holder wishes to include in the shelf takedown
(“Takedown
Notice”). The Company shall (i) within 5 Business Days
of the receipt of a Takedown Notice for an Underwritten Offering,
give written notice of such Takedown Notice to all Holders of
Registrable Securities included on such Shelf Registration (the
“Company Takedown
Notice”), and (ii) shall take all actions reasonably
requested by such Holder, including the filing of a Prospectus
supplement and the other actions described in Section 2.04,
in accordance with the intended method of distribution set forth in
the Takedown Notice as expeditiously as practicable. If the
takedown is an Underwritten Offering, the Company shall include in
such Underwritten Offering all Registrable Securities that that the
Holders request to be included within the 5 days following their
receipt of the Company Takedown Notice. If the takedown is an
Underwritten Offering, the Registrable Securities requested to be
included in a shelf takedown must represent (i) an aggregate
offering price of Registrable Securities that is reasonably be
expected to equal at least $10,000,000 or (ii) all of the remaining
Registrable Securities owned by the requesting Holder and its
Affiliates.
(g) SEC Form. Except as set forth in the
next sentence, the Company shall use its reasonable best efforts to
cause Demand Registrations to be Registered on Form F-3 (or any
successor form), and if the Company is not then eligible under the
Securities Act to use Form F-3, Demand Registrations shall be
Registered on Form F-1 (or any successor form). The Company shall
use its reasonable best efforts to become eligible to use Form F-3
and, after becoming eligible to use Form F-3, shall use its
reasonable best efforts to remain so eligible. All Demand
Registrations shall comply with applicable requirements of the
Securities Act and, together with each Prospectus included, filed
or otherwise furnished by the Company in connection therewith,
shall not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
5
Section
2.02. Piggyback Registrations.
(a) Participation. If the Company proposes
to file a Registration Statement under the Securities Act with
respect to any offering of Class A Common Shares for its own
account and/or for the account of any other Persons (other than a
Registration (i) under Section 2.01 hereof, (ii) pursuant to
a Registration Statement on Form S-8 (or other registration solely
relating to an offering or sale to employees or directors of the
Company pursuant to any employee stock plan or other employee
benefit arrangement) or Form F-4 or similar form that relates to a
transaction subject to Rule 145 under the Securities Act, (iii)
pursuant to any form that does not include substantially the same
information as would be required to be included in a Registration
Statement covering the sale of Registrable Securities, (iv) in
connection with any dividend reinvestment or similar plan or (v)
for the sole purpose of offering securities to another entity or
its security holders in connection with the acquisition of assets
or securities of such entity or any similar transaction), then, as
soon as practicable (but in no event less than 15 days prior to the
proposed date of filing such Registration Statement), the Company
shall give written notice of such proposed filing to each Holder,
and such notice shall offer such Holders the opportunity to
Register under such Registration Statement such number of
Registrable Securities as each such Holder may request in writing
(a “Piggyback
Registration”). Subject to Section 2.02(a) and
Section 2.02(c), the Company shall include in such
Registration Statement all such Registrable Securities that are
requested to be included therein within 12 days after the receipt
of any such notice; provided, however, that if, at any time after
giving written notice of its intention to Register any securities
pursuant to this Section 2.01(a) and prior to the effective
date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to
Register or to delay Registration of such securities, the Company
may, at its election, give written notice of such determination to
each such Holder and, thereupon, (i) in the case of a determination
not to Register, shall be relieved of its obligation to Register
any Registrable Securities in connection with such Registration and
shall have no liability to any Holder in connection with such
termination, without prejudice, however, to the rights of any
Holder to request that such Registration be effected as a Demand
Registration under Section 2.01, and (ii) in the case of a
determination to delay
Registration, shall be permitted to delay Registering any
Registrable Securities for the same period as the delay in
Registering such other Class A Common Shares. No Registration
effected under this Section 2.02 shall relieve the Company
of its obligation to effect any Demand Registration under
Section 2.01. If the offering pursuant to a Registration
Statement pursuant to this Section 2.02 is to be an
Underwritten Offering, then each Holder making a request for a
Piggyback Registration pursuant to this Section 2.02(a)
shall, and the Company shall use reasonable best efforts to
coordinate arrangements with the underwriters so that each such
Holder may, participate in such Underwritten Offering. If the
offering pursuant to such Registration Statement is to be on any
other basis, then each Holder making a request for a Piggyback
Registration pursuant to this Section 2.02(a) shall, and the
Company shall use reasonable best efforts to coordinate
arrangements so that each such Holder may, participate in such
offering on such basis. If the Company files a Shelf Registration
for its own account and/or for the account of any other Persons,
the Company agrees that it shall use its reasonable best efforts to
include in such Registration Statement such disclosures as may be
required by Rule 430B under the Securities Act in order to ensure
that the Holders may be added to such Shelf Registration at a later
time through the filing of a Prospectus supplement rather than a
post-effective amendment.
(b) Right to Withdraw. Each Holder shall
have the right to withdraw such Holder’s request for
inclusion of its Registrable Securities in any Underwritten
Offering pursuant to this Section 2.02 at any time prior to
the execution of an underwriting agreement with respect thereto by
giving written notice to the Company of such Holder’s request
to withdraw and, subject to the preceding clause, each Holder shall
be permitted to withdraw all or part of such Holder’s
Registrable Securities from a Piggyback Registration at any time
prior to the effective date thereof.
6
(c) Priority of Piggyback Registration. If
the managing underwriter or underwriters of any proposed
Underwritten Offering of a class of Registrable Securities included
in a Piggyback Registration informs the Company and the Holders in
writing that, in its or their opinion, the number of securities of
such class which such Holder and any other Persons intend to
include in such Underwritten Offering exceeds the number which can
be sold in such Underwritten Offering without being likely to have
a significant adverse effect on the price, timing or distribution
of the securities offered or the market for the securities offered,
then the securities to be included in such Underwritten Offering
shall be reduced in the following order of priority: first, there shall be excluded from the
Underwritten Offering any securities to be sold for the account of
any selling securityholder other than the Holders; second, there shall be excluded from
the Underwritten Offering any securities to be sold for the account
of the Company; third,
there shall be excluded from the Underwritten Offering any
securities to be sold for the account of Holders other than Dufry
and its Affiliates that have been requested to be included therein
pro rata based on the
number of Registrable Securities owned by each such Holder; and
finally, the number of
Registrable Securities of Dufry and its Affiliates shall be
reduced, in each case to the extent necessary to reduce the total
number of securities to be included in such offering to the number
recommended by the managing underwriter or
underwriters.
Section
2.03. Selection of Underwriter(s). In any
Underwritten Offering pursuant to Section 2.01 or
Section 2.02 in which a Holder is participating, Dufry, in
the event Dufry is participating, or the Holders of a majority of
the outstanding Registrable Securities being included in the
Underwritten Offering (the “Majority Holders”), in the event
Dufry is not participating, shall select the underwriter(s). Dufry
or the Majority Holders shall consult with the Company in the
selection of such underwriters by Dufry or such Majority Holders,
provided that Dufry or such Majority Holders, as applicable, shall
be under no obligation to the Company as a result of or in
connection with such consultation.
(a) In connection with
the Registration and/or sale of Registrable Securities pursuant to
this Agreement, through an Underwritten Offering or otherwise, the
Company shall use reasonable best efforts to effect or cause the
Registration and the sale of such Registrable Securities in
accordance with the intended methods of disposition thereof
and:
(i) prepare and file
the required Registration Statement, including all exhibits and
financial statements required under the Securities Act to be filed
therewith, and before filing with the SEC a Registration Statement
or Prospectus, or any amendments or supplements thereto, (A)
furnish to the underwriters, if any, and to the Holders
participating in such Registration, copies of all documents
prepared to be filed, which documents will be subject to the review
of such underwriters and such participating Holders and their
respective counsel, and (B) consider in good faith any comments of
the underwriters and Holders and their respective counsel on such
documents;
(ii) prepare
and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective in accordance with the terms of this Agreement and to
comply with the provisions of the Securities Act with respect to
the disposition of all of the Shares Registered
thereon;
(iii) in
the case of a Shelf Registration, prepare and file with the SEC
such amendments and supplements to such Registration Statement and
the Prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of
all Shares subject thereto for a period ending on the 3rd anniversary after
the effective date of such Registration Statement;
7
(iv) notify
the participating Holders and the managing underwriter or
underwriters, if any, and (if requested) confirm such advice in
writing and provide copies of the relevant documents, as soon as
reasonably practicable after notice thereof is received by the
Company (A) when the applicable Registration Statement or any
amendment thereto has been filed or becomes effective, or when the
applicable Prospectus or any amendment or supplement to such
Prospectus has been filed, (B) of any written comments by the SEC
or any request by the SEC or any other Governmental Authority for
amendments or supplements to such Registration Statement or such
Prospectus or for additional information, (C) of the issuance by
the SEC of any stop order suspending the effectiveness of such
Registration Statement or any order preventing or suspending the
use of any preliminary or final Prospectus or the initiation or
threatening of any proceedings for such purposes, (D) if, at any
time, the representations and warranties of the Company in any
applicable underwriting agreement cease to be true and correct in
all material respects, and (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for offering or sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose;
(v) promptly notify
each selling Holder and the managing underwriter or underwriters,
if any, when the Company becomes aware of the occurrence of any
event as a result of which the applicable Registration Statement or
the Prospectus included in such Registration Statement (as then in
effect) contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein
(in the case of such Prospectus and any preliminary Prospectus, in
light of the circumstances under which they were made) not
misleading or, if for any other reason it shall be necessary during
such time period to amend or supplement such Registration Statement
or Prospectus in order to comply with the Securities Act and, in
either case as promptly as reasonably practicable thereafter,
prepare and file with the SEC, and furnish without charge to the
selling Holder and the managing underwriter or underwriters, if
any, an amendment or supplement to such Registration Statement or
Prospectus which will correct such statement or omission or effect
such compliance;
(vi) use
its reasonable best efforts to prevent or obtain the withdrawal of
any stop order or other order suspending the use of any preliminary
or final Prospectus;
(vii) promptly
incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, and the
Holders may reasonably request to be included therein in order to
permit the intended method of distribution of the Registrable
Securities; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably
practicable after being notified of the matters to be incorporated
in such Prospectus supplement or post-effective
amendment;
(viii) furnish
to each selling Holder and each underwriter, if any, without
charge, as many conformed copies as such Holder or underwriter may
reasonably request of the applicable Registration Statement and any
amendment or post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by
reference);
(ix) deliver
to each selling Holder and each underwriter, if any, without
charge, as many copies of the applicable Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as
such Holder or underwriter may reasonably request (it being
understood that the Company consents to the use of such Prospectus
or any amendment or supplement thereto by each selling Holder and
the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto) and such other documents as such
selling Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities by such
Holder or underwriter;
8
(x) on or prior to the
date on which the applicable Registration Statement is declared
effective or becomes effective, use its reasonable best efforts to
register or qualify, and cooperate with each selling Holder, the
managing underwriter or underwriters, if any, and their respective
counsel, in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities
or “World Sky” laws of each state and other
jurisdiction of the United States as any selling Holder or managing
underwriter or underwriters, if any, or their respective counsel
reasonably request in writing and do any and all other acts or
things reasonably necessary or advisable to keep such registration
or qualification in effect for so long as such Registration
Statement remains in effect and so as to permit the continuance of
sales and dealings in such jurisdictions of the United States for
so long as may be necessary to complete the distribution of the
Registrable Securities covered by the Registration Statement;
provided that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any
action which would subject it to taxation or general service of
process in any such jurisdiction where it is not then so
subject;
(xi) in
connection with any sale of Registrable Securities that will result
in such securities no longer being Registrable Securities,
cooperate with each selling Holder and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive Securities Act legends; and to
register such Registrable Securities in such denominations and such
names as such selling Holder or the underwriter(s), if any, may
request at least two Business Days prior to such sale of
Registrable Securities; provided that the Company may satisfy
its obligations hereunder without issuing physical stock
certificates through the use of The Depository Trust
Company’s Direct Registration System;
(xii) cooperate
and assist in any filings required to be made with the Financial
Industry Regulatory Authority and each securities exchange, if any,
on which any of the Company’s securities are then listed or
quoted and on each inter-dealer quotation system on which any of
the Company’s securities are then quoted, and in the
performance of any due diligence investigation by any underwriter
(including any “qualified independent underwriter”)
that is required to be retained in accordance with the rules and
regulations of each such exchange, and use its reasonable best
efforts to cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition
of such Registrable Securities;
(xiii) not
later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates
for the Registrable Securities which are in a form eligible for
deposit with The Depository Trust Company; provided that the Company may satisfy
its obligations hereunder without issuing physical stock
certificates through the use of The Depository Trust
Company’s Direct Registration System;
(xiv) in
the case of an Underwritten Offering, obtain for delivery to and
addressed to Dufry, if Dufry is participating, and the underwriter
or underwriters, an opinion from the Company’s outside
counsel in customary form and content for the type of Underwritten
Offering, dated the date of the closing under the underwriting
agreement;
(xv) in
the case of an Underwritten Offering, obtain for delivery to and
addressed to the underwriter or underwriters and, to the extent
agreed by the Company’s independent certified public
accountants, each selling Holder, a comfort letter from the
Company’s independent certified public accountants (and the
independent certified public accountants with respect to any
acquired company financial statements) in customary form and
content for the type of Underwritten Offering, including with
comfort letters customarily delivered in connection with quarterly
period financial statements if applicable, dated the date of
execution of the underwriting agreement and brought down to the
closing under the underwriting agreement;
9
(xvi) use
its reasonable best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security
holders, as soon as reasonably practicable, but no later than 90
days after the end of the 12-month period beginning with the first
day of the Company’s first quarter commencing after the
effective date of the applicable Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated
thereunder and covering the period of at least 12 months, but not
more than 18 months, beginning with the first month after the
effective date of the Registration Statement;
(xvii) provide
and cause to be maintained a transfer agent and registrar for all
Registrable Securities covered by the applicable Registration
Statement from and after a date not later than the effective date
of such Registration Statement;
(xviii) cause
all Registrable Securities covered by the applicable Registration
Statement to be listed on each securities exchange on which any of
the Company’s securities are then listed or quoted and on
each inter-dealer quotation system on which any of the
Company’s securities are then quoted;
(xix) provide (A) each Holder
participating in the Registration, (B) the underwriters (which
term, for purposes of this Agreement, shall include a Person deemed
to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, of the Registrable Securities to be
Registered, (C) the sale or placement agent therefor, if any, (D)
counsel for such underwriters or agent, and (E) any attorney,
accountant or other agent or representative retained by such Holder
or any such underwriter, as selected by such Holder, the
opportunity to participate in the preparation of such Registration
Statement, each Prospectus included therein or filed with the SEC,
and each amendment or supplement thereto, and to require the
insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such Holder(s) and their
counsel should be included; and for a reasonable period prior to
the filing of such Registration Statement, make available upon
reasonable notice at reasonable times and for reasonable periods
for inspection by the parties referred to in (A) through (E) above,
all pertinent financial and other records, pertinent corporate
documents and properties of the Company that are available to the
Company, and cause all of the Company’s officers, directors
and employees and the independent public accountants who have
certified its financial statements to make themselves available at
reasonable times and for reasonable periods, to discuss the
business of the Company and to supply all information available to
the Company reasonably requested by any such Person in connection
with such Registration Statement as shall be necessary to enable
them to exercise their due diligence responsibility, subject to the
foregoing, provided that
any such Person gaining access to information or personnel pursuant
to this Section 2.04(a)(xix) shall agree to use reasonable
efforts to protect the confidentiality of any information regarding
the Company which the Company determines in good faith to be
confidential, and of which determination such Person is notified,
unless (F) the release of such information is required by law or
regulation or is requested or required by deposition,
interrogatory, requests for information or documents by a
governmental entity, subpoena or similar process, (G) such
information is or becomes publicly known without a breach of this
Agreement, (H) such information is or becomes available to such
Person on a non-confidential basis from a source other than the
Company or (I) such information is independently developed by such
Person;
(xx) to
cause the executive officers of the Company to participate in the
customary “road show” presentations that may be
reasonably requested by the managing underwriter or underwriters in
any Underwritten Offering and otherwise to facilitate, cooperate
with, and participate in each proposed offering contemplated herein
and customary selling efforts related thereto; and
(xxi) take
all other customary steps reasonably necessary to effect the
Registration, offering and sale of the Registrable
Securities.
10
(b) As a condition
precedent to any Registration hereunder, the Company may require
each Holder as to which any Registration is being effected to
furnish to the Company such information regarding the distribution
of such securities and such other information relating to such
Holder, its ownership of Registrable Securities and other matters
as the Company may from time to time reasonably request in writing.
Each such Holder agrees to furnish such information to the Company
and to cooperate with the Company as reasonably necessary to enable
the Company to comply with the provisions of this
Agreement.
(c) Dufry agrees, and
any other Holder agrees by acquisition of such Registrable
Securities, that, upon receipt of any written notice from the
Company of the occurrence of any event of the kind described in
Section 2.04(a)(v), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration
Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
2.04(a)(v), or until such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and if so
directed by the Company, such Holder will deliver to the Company
(at the Company’s expense) all copies, other than permanent
file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Securities current at the time
of receipt of such notice. In the event the Company shall give any
such notice, the period during which the applicable Registration
Statement for a Demand Registration is required to be maintained
effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities
covered by such Registration Statement either receives the copies
of the supplemented or amended Prospectus contemplated by
Section 2.04(a)(v) or is advised in writing by the Company
that the use of the Prospectus may be resumed.
Section
2.05. Holdback Agreements. Each of the
Company and the Holders agrees, upon notice from the managing
underwriter or underwriters in connection with any Registration for
an Underwritten Offering of the Company’s securities (other
than pursuant to a registration statement on Form F-4 or any
similar or successor form or pursuant to a registration solely
relating to an offering and sale to employees or directors of the
Company pursuant to any employee stock plan or other employee
benefit plan arrangement), not to effect (other than pursuant to
such Registration) any public sale or distribution of Registrable
Securities, including, but not limited to, any sale pursuant to
Rule 144, or make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of, any Registrable Securities,
any other equity securities of the Company or any securities
convertible into or exchangeable or exercisable for any equity
securities of the Company without the prior written consent of the
managing underwriters during such period as reasonably requested by
the managing underwriters (but in no event longer than the seven
days before and the 90 days after the pricing of such Underwritten
Offering); provided, that
such restrictions shall not apply in any circumstance to (i)
Registrable Securities acquired by a Holder in the public market
subsequent to the IPO, (ii) distributions-in-kind to a
Holder’s limited or other partners, members, shareholders or
other equity holders, (iii) Registrable Securities with regard to
which Dufry has beneficial ownership pursuant to an investment
advisory arrangement under which Dufry provides investment advisory
services to a non-related third party in connection with such
Registrable Securities and does not derive a benefit from such
Registrable Securities other than customary advisory or similar
fees. Notwithstanding the foregoing, no holdback agreements of the
type contemplated by this Section 2.05 shall be required of
Holders unless each of the Company’s directors and executive
officers agrees to be bound by a substantially identical holdback
agreement for at least the same period of time.
Section
2.06. Underwriting Agreement in Underwritten
Offerings. If requested by the managing underwriters for any
Underwritten Offering, the Company and the participating Holders
shall enter into an underwriting agreement in customary form with
such underwriters for such offering; provided, however, that no Holder shall be
required to make any representations or warranties to the Company
or the underwriters (other than representations and warranties
regarding (i) such Holder’s ownership of Registrable
Securities to be transferred free and clear of all liens, claims
and encumbrances created by such Holder, (ii) such Holder’s
power and authority to effect such transfer, (iii) such matters
pertaining to such Holder’s compliance with securities laws
as reasonably may be requested and (iv) such Holder’s
intended method of distribution) or to undertake any
indemnification obligations to the Company with respect thereto,
except as otherwise provided in Section 2.08
hereof.
11
Section
2.07. Registration Expenses Paid By Company.
In the case of any Registration of Registrable Securities required
pursuant to this Agreement (including any Registration that is
delayed or withdrawn) or proposed Underwritten Offering pursuant to
this Agreement, the Company shall pay all Registration Expenses
regardless of whether the Registration Statement becomes effective
or the Underwritten Offering is completed. The Company shall have
no obligation to pay any Selling Expenses.
(a) Indemnification by the Company. The
Company agrees to indemnify and hold harmless, to the full extent
permitted by law, each Holder and such Holder’s officers,
directors, employees, advisors, Affiliates and agents and each
Person who controls (within the meaning of the Securities Act or
the Exchange Act) such Holder from and against any and all losses,
claims, damages, liabilities (or actions in respect thereof,
whether or not such indemnified party is a party thereto) and
expenses, joint or several (including reasonable costs of
investigation and legal expenses) (each, a “Loss” and collectively
“Losses”)
arising out of or based upon (i) any untrue or alleged untrue
statement of a material fact contained in any Registration
Statement under which the sale of such Registrable Securities was
Registered under the Securities Act (including any final or
preliminary Prospectus contained therein or any amendment thereof
or supplement thereto or any documents incorporated by reference
therein), or any such statement made in any free writing prospectus
(as defined in Rule 405 under the Securities Act) that the Company
has filed or is required to file pursuant to Rule 433(d) of the
Securities Act, or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein (in the case of a Prospectus,
preliminary Prospectus or free writing prospectus, in light of the
circumstances under which they were made) not misleading;
provided, however, that the Company shall not be
liable to any particular indemnified party in any such case to the
extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any such Registration Statement in reliance upon
and in conformity with written information furnished to the Company
by such indemnified party expressly for use in the preparation
thereof. This indemnity shall be in addition to any liability the
Company may otherwise have. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of such Holder or any indemnified party and shall survive
the transfer of such securities by such Holder.
(b) Indemnification by the Selling Holder.
Each selling Holder agrees (severally and not jointly) to indemnify
and hold harmless, to the full extent permitted by law, the Company
and the Company’s directors, officers, employees, advisors,
Affiliates and agents and each Person who controls the Company
(within the meaning of the Securities Act and the Exchange Act)
from and against any Losses arising out of or based upon (i) any
untrue or alleged untrue statement of a material fact contained in
any Registration Statement under which the sale of such Registrable
Securities was Registered under the Securities Act (including any
final or preliminary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by
reference therein), or any such statement made in any free writing
prospectus that the Company has filed or is required to file
pursuant to Rule 433(d) of the Securities Act, or (ii) any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the
case of a Prospectus, preliminary Prospectus or free writing
prospectus, in light of the circumstances under which they were
made) not misleading to the extent, but, in each case (i) or (ii),
only to the extent, that such untrue statement or omission is
contained in any information furnished in writing by such selling
Holder to the Company expressly for inclusion in such Registration
Statement, Prospectus, preliminary Prospectus or free writing
prospectus. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder under the sale of the Registrable
Securities giving rise to such indemnification obligation. This
indemnity shall be in addition to any liability the selling Holder
may otherwise have. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Company or any indemnified party.
12
(c) Conduct of Indemnification Proceedings.
Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that any delay or failure to
so notify the indemnifying party shall relieve the indemnifying
party of its obligations hereunder to the extent that it is
materially prejudiced by reason of such delay or failure) and (ii)
permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to
indemnification hereunder shall have the right to select and employ
separate counsel and to participate in the defense of such claim,
but the fees and expenses of such counsel shall be at the expense
of such Person unless (a) the indemnifying party has agreed in
writing to pay such fees or expenses, (b) the indemnifying party
shall have failed to assume the defense of such claim within a
reasonable time after receipt of notice of such claim from the
Person entitled to indemnification hereunder or fails to employ
counsel reasonably satisfactory to such Person or to pursue the
defense of such claim in a reasonably vigorous manner, (c) the
named parties to any proceeding include both such indemnified and
the indemnifying party and the indemnified party has reasonably
concluded (based on written advice of counsel) that there may be
legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the
indemnifying party, or (d) in the reasonable judgment of any such
Person, based upon written advice of its counsel, a conflict of
interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies
the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense
of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will not
be subject to any liability for any settlement made without its
consent, but such consent may not be unreasonably withheld,
conditioned or delayed. If the indemnifying party assumes the
defense, the indemnifying party shall not have the right to settle
such action without the consent of the indemnified party, which
consent may not be unreasonably withheld, conditioned or delayed.
No indemnifying party shall consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of an unconditional release from all
liability in respect to such claim or litigation. It is understood
that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same
jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm (in addition to any appropriate local counsel) at any
one time from all such indemnified party or parties unless (x) the
employment of more than one counsel has been authorized in writing
by the indemnifying party or parties, (y) an indemnified party has
reasonably concluded (based on written advice of counsel) that
there may be legal defenses available to it that are different from
or in addition to those available to the other indemnified parties
or (z) a conflict or potential conflict exists or in the reasonable
judgment of such Person may exist (based on advice of counsel to an
indemnified party) between such indemnified party or parties and
the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees
and expenses of such additional counsel.
13
(d) Contribution. If for any reason the
indemnification provided for in Section 2.08(a) or
Section 2.08(b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by Section
2.08(a) or Section 2.08(b), then the indemnifying party
shall, in lieu of indemnifying such indemnified party thereunder,
contribute to the amount paid or payable by the indemnified party
as a result of such Loss in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other hand in connection with
the statements or omissions which resulted in such Loss as well as
any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified
party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding anything in this
Section 2.08(d) to the contrary, no indemnifying party
(other than the Company) shall be required pursuant to this
Section 2.08(d) to contribute any amount in excess of the
amount by which the net proceeds received by such indemnifying
party from the sale of Registrable Securities in the offering to
which the Losses of the indemnified parties relate (before
deducting expenses, if any) exceeds the amount of any damages which
such indemnifying party has otherwise been required to pay by
reason of such untrue statement or omission. The parties hereto
agree that it would not be just and equitable if contribution
pursuant to this Section 2.08(d) were determined by
pro rata allocation or by
any other method of allocation that does not take account of the
equitable considerations referred to in this Section
2.08(d). No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The amount paid or payable by an
indemnified party hereunder shall be deemed to include, for
purposes of this Section 2.08(d), any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending
against or appearing as a third party witness in respect of, or
otherwise incurred in connection with, any such loss, claim,
damage, expense, liability, action, investigation or proceeding. If
indemnification is available under this Section 2.08, the
indemnifying parties shall indemnify each indemnified party to the
full extent provided in Section 2.08(a) and Section
2.08(b) hereof without regard to the relative fault of said
indemnifying parties or indemnified party.
Section
2.09. Reporting Requirements; Rule 144. The
Company shall use its reasonable best efforts to be and remain in
compliance with the periodic filing requirements imposed under the
SEC’s rules and regulations, including the Exchange Act, and
thereafter shall timely file such information, documents and
reports as the SEC may require or prescribe under Section 13 or
15(d) (whichever is applicable) of the Exchange Act. If the Company
is not required to file such reports during such period, it will,
upon the request of any Holder, make publicly available such
necessary information for so long as necessary to permit sales
pursuant to Rule 144 or Regulation S under the Securities Act, and
it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without Registration
under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 or Regulation S under the Securities Act,
as such Rules may be amended from time to time, or (b) any rule or
regulation hereafter adopted by the SEC. From and after the date
hereof through the date upon which no Holder owns any Registrable
Securities, the Company shall forthwith upon request furnish any
Holder (i) a written statement by the Company as to whether it has
complied with such requirements and, if not, the specifics thereof,
(ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents filed by the
Company with the SEC as such Holder may reasonably request in
availing itself of an exemption for the sale of Registrable
Securities without registration under the Securities
Act.
14
ARTICLE
3
Section
3.01. Term. This Agreement shall terminate at
such time as there are no Registrable Securities, except for the
provisions of Section 2.07 and Section 2.08 and all
of this Article 3, which shall survive any such
termination.
Section
3.02. Notices. All notices or other
communications under this Agreement shall be in writing and shall
be deemed to be duly given when (a) delivered in person or (b)
deposited in the United States mail or private express mail,
postage prepaid, addressed as follows:
If to
Dufry, to:
Xxxxx
XX
Xxxxxxxxxxxxx
00, XX – 0000
Xxxxx,
Xxxxxxxxxxx
Attention: Group
General Counsel
If to
the Company to:
4 New
Square
Bedfont
Lakes
Feltham, Xxxxxxxxx
XX00 0XX
Xxxxxx
Xxxxxxx
Attention: Chief
Financial Officer
with a
copy to:
The
Xxxxxx Group
Xxx
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx
X. Xxxxx, Senior Counsel
Any
party may, by notice to the other party, change the address to
which such notices are to be given.
Section
3.03. Successors, Assigns and Transferees.
This Agreement and all provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The Company may assign this
Agreement at any time in connection with a sale or acquisition of
the Company, whether by merger, consolidation, sale of all or
substantially all of the Company’s assets, or similar
transaction, without the consent of the Holders; provided that the successor or
acquiring Person agrees in writing to assume all of the
Company’s rights and obligations under this Agreement. A
Holder may assign its rights and obligations under this Agreement
to any transferee that acquires at least 5% of the outstanding
Class A Common Shares and executes an agreement to be bound hereby
in the form attached hereto as Exhibit A, an executed
counterpart of which shall be furnished to the Company.
Notwithstanding the foregoing, if such transfer is subject to
covenants, agreements or other undertakings restricting
transferability thereof, the Registration Rights shall not be
transferred in connection with such transfer unless such transferee
complies with all such covenants, agreements and other
undertakings.
15
Section
3.04. GOVERNING LAW; NO JURY
TRIAL.
(a) This Agreement
shall be governed by and construed and interpreted in accordance
with the laws of the State of New York, without regard to the
conflict of laws principles thereof that would result in the
application of any law other than the laws of the State of New
York. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF AND PERMITTED UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS
APPLICABLE.
(b) With respect to any
Action relating to or arising out of this Agreement, each party to
this Agreement irrevocably (i) consents and submits to the
exclusive jurisdiction of the courts of the State of New York and
any court of the United States located in the Borough of Manhattan
in New York City; (ii) waives any objection which such party
may have at any time to the laying of venue of any Action brought
in any such court, waives any claim that such Action has been
brought in an inconvenient forum and further waives the right to
object, with respect to such Action, that such court does not have
jurisdiction over such party; and (iii) consents to the service of
process at the address set forth for notices in Section 3.02
herein; provided,
however, that such manner
of service of process shall not preclude the service of process in
any other manner permitted under applicable law.
Section
3.05. Specific Performance. In the event of
any actual or threatened default in, or breach of, any of the
terms, conditions and provisions of this Agreement, the party or
parties who are or are to be thereby aggrieved shall have the right
to seek specific performance and injunctive or other equitable
relief of its rights under this Agreement, in addition to any and
all other rights and remedies at law or in equity, and all such
rights and remedies shall be cumulative.
Section
3.06. Headings. The article, section and
paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section
3.07. Severability. If any provision of this
Agreement or the application thereof to any Person or circumstance
is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof or the
application of such provision to Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid
or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon
such determination, the parties shall negotiate in good faith in an
effort to agree upon such a suitable and equitable provision to
effect the original intent of the parties.
Section
3.08. Amendment; Waiver.
(a) This Agreement may
not be amended or modified and waivers and consents to departures
from the provisions hereof may not be given, except by an
instrument or instruments in writing making specific reference to
this Agreement and signed by the Company and Dufry or, if neither
Dufry or any of its Affiliates is a Holder, the Holders of a
majority of the Registrable Securities.
(b) Waiver by any party
of any default by the other party of any provision of this
Agreement shall not be deemed a waiver by the waiving party of any
subsequent or other default, nor shall it prejudice the rights of
the other party.
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Section
3.09. Further Assurances. Each of the parties
hereto shall execute and deliver all additional documents,
agreements and instruments and shall do any and all acts and things
reasonably requested by the other party hereto in connection with
the performance of its obligations undertaken in this
Agreement.
Section
3.10. Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the
parties and delivered to the other party. Execution of this
Agreement or any other documents pursuant to this Agreement by
facsimile or other electronic copy of a signature shall be deemed
to be, and shall have the same effect as, executed by an original
signature.
[The
remainder of page intentionally left blank. Signature page
follows.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
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XXXXXX
LTD.
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By:
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/s/
Xxxxxx Xxxx Xxxxxxxx
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Name:
Xxxxxx Xxxx Xxxxxxxx
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Title:
Director
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DUFRY
INTERNATIONAL AG
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
Director
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EXHIBIT A
THIS
INSTRUMENT forms part of the Registration Rights Agreement (the
“Agreement”),
dated as of ________, 2018, by and among Xxxxxx Ltd., an exempted
company limited by shares incorporated in Bermuda, and Dufry
International AG, a Swiss stock corporation (“Dufry”). The undersigned hereby
acknowledges having received a copy of the Agreement and having
read the Agreement in its entirety, and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agrees that
the terms and conditions of the Agreement binding upon and inuring
to the benefit of Dufry shall be binding upon and inure to the
benefit of the undersigned and its successors and permitted assigns
as if it were an original party to the Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this instrument on
this day of ___________, 20__.
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By:
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Name:
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Title:
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