Exhibit 10.62
REGISTRATION RIGHTS AGREEMENT
dated as of September 24, 2004
by and between
Xxxxxxxxx Telecommunications International Limited
Xxxxxxxxx Telecommunications Investment Holdings Limited
and
Xxxxxx Kong (Holdings) Limited
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.........................................................1
1.1. Defined Terms.......................................................1
1.2. General Interpretive Principles.....................................5
SECTION 2. REGISTRATION RIGHTS.................................................6
2.1. Demand Registrations................................................6
2.2. Piggyback Registrations.............................................9
2.3. Black-out Periods..................................................11
2.4. Preparation and Filing.............................................12
2.5. No Inconsistent Agreements; Additional Rights......................14
2.6. Registration Expenses..............................................14
2.7. Indemnification....................................................15
2.8. Adjustments Affecting Registrable Securities.......................18
2.9. Rules 144 and 144A; Regulation S...................................18
2.10. Certain Other Offerings............................................18
SECTION 3. MISCELLANEOUS......................................................19
3.1. Term...............................................................19
3.2. Injunctive Relief..................................................19
3.3. Attorneys' Fees....................................................19
3.4. Notices............................................................19
3.5. Successors, Assigns and Transferees................................20
3.6. Governing Law; Service of Process; Consent to Jurisdiction.........20
3.7. Headings...........................................................22
3.8. Severability.......................................................22
3.9. Amendment; Waiver..................................................22
3.10. Counterparts.......................................................22
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of September 24, 2004 (this
"Agreement") by and among Xxxxxxxxx Telecommunications International Limited, a
corporation incorporated under the laws of the Cayman Islands (the "Company"),
and the entities listed on the signature page(s) hereto (each such entity and
its respective permitted transferees a "Shareholder", and collectively the
"Shareholders").
Recitals
WHEREAS, the Shareholders hold, or have agreed to subscribe to,
certain ordinary shares of the Company, par value HK$0.25 per share, and the
Company has agreed to provide the registration rights set forth in this
Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants and agreements of the parties hereto, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Adverse Disclosure" means public disclosure of material non-public
information which, in the good faith judgment of the Board of Directors of the
Company after consultation with independent outside counsel to the Company, (i)
would be required to be made in any Registration Statement filed by the Company
so that such Registration Statement would not be false or misleading in any
material respect, (ii) would not be required to be made at such time but for the
filing of such Registration Statement and (iii) would have a material adverse
effect on the Company or its business or on the Company's ability to effect a
material acquisition, disposition or financing.
"Affiliate" means, with respect to any Entity, a Person that directly,
or indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such first Person.
"Agreement" has the meaning set forth in the preamble.
"Alternative Listing Jurisdiction" means Hong Kong or any other
jurisdiction (other than the U.S.) in which the Company applies to have Company
Securities listed, or in which Company Securities are listed or are or have been
publicly offered or traded.
"Beneficially Own" means, with respect to any equity or debt
securities, the ownership or the ability to vote, receive dividends or other
economic benefits in respect of, or direct the disposition of, such securities;
provided that a Person shall be deemed to Beneficially
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Own all such securities that such Person has the right to acquire, through
Rights or otherwise, whether such right is exercisable immediately or otherwise.
The terms "Beneficial Ownership," "Beneficial Owner" and "Beneficially Owning"
have correlative meanings.
"Brokers' Sale" means the Disposition of any Company Securities in (i)
a "brokers' transaction" (as defined in Rule 144 under the Securities Act), (ii)
any non-negotiated purchase or sale of Shares carried out through the automated
trading system of a stock exchange or trading system, in which at the time when
the instruction to such purchase or sale is given, the identity of the seller(s)
or purchaser(s) of the shares, as the case may be, is unknown to the purchasing
or selling party, or (iii) any other Disposition lawfully made to the general
public, other than Dispositions made pursuant to this Agreement.
"Business Day" means any day on which commercial banks are open for
business except for Saturday, Sunday and national or public holidays in New York
City, New York or Hong Kong.
"Charter Documents" means, with respect to any Entity, the memorandum
and articles of association and other organizational documents of such Entity.
"Claim" has the meaning set forth in Section 2.7(c).
"Commission" means the U.S. Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble and shall include
the Company's successors by merger, acquisition, reorganization or otherwise.
"Company Securities" means (a) the Shares, (b) any other class of
equity shares of the Company approved by the Company in accordance with the
Charter Documents of the Company, and (c) any depositary receipts of the Company
at any time and from time to time and any equity, Rights or equity-linked
securities distributed in respect of such shares or depositary receipts, as the
case may be.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the affairs or management of a Person
through the ownership of voting securities, by contract or otherwise, including,
without limitation, having the power to elect a majority of the board of
directors or other governing body of such Person, and "Controlling" and
"Controlled" have correlative meanings.
"Demand Notice" has the meaning set forth in Section 2.1(d).
"Demand Registration" has the meaning set forth in Section 2.1(a).
"Demand Suspension" has the meaning set forth in Section 2.1(g).
"Disposition" (including, with correlative meanings, the terms
"Dispose" and "Disposed") means any transfer, sale, assignment, exchange,
pledge, hypothecation, gift, issuance, distribution, foreclosure or other
disposition of any kind, voluntary or by operation of law or other involuntary
means, directly or indirectly, for or without consideration.
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"Entity" means a partnership, limited liability partnership,
corporation, limited liability company, association, joint stock company, trust,
estate, joint venture, or unincorporated organization or other legal person
established or existing pursuant to the Laws of any jurisdiction.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"GAAP" means, unless otherwise expressly specified, generally accepted
accounting principles in Hong Kong, as in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"HK$" means Hong Kong dollars.
"Holder" means any holder of Registrable Securities who is a party
hereto or who succeeds to rights hereunder pursuant to Section 3.5.
"Hong Kong" means Hong Kong Special Administrative Region.
"ICC" has the meaning set forth in Section 3.6(b).
"Included Securities" has the meaning set forth in Section 2.2(b).
"Indebtedness" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person, and whether contingent or
fixed, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (c) any obligation, issued or assumed as the deferred
purchase price (whether created or arising under any conditional sale or other
title retention agreement or otherwise), with respect to property, assets or
services acquired by such Person (even though the rights and remedies of the
sellers or lenders under such agreement in the event of default are limited to
repossession or sale of such property), (d) all obligations of such Person as
lessee under leases that have been or should be, in accordance with GAAP,
recorded as capital leases, (e) all obligations of such Person under or with
respect to banker's acceptances, letters of credit, "documents against
acceptance" or similar facilities, (f) all obligations of such Person to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of such Person, valued, in the case of redeemable preferred stock, at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends, (g) any interest rate or currency swap or similar hedging
agreement and (h) all Indebtedness of others referred to in clauses (a) through
(g) above guaranteed directly or indirectly in any manner by such Person.
"Inspectors" has the meaning set forth in Section 2.4(a)(v).
"Law" means any law, treaty, statute, ordinance, code, rule,
regulation, judgment, decree, order, writ, award, injunction or determination of
any Governmental Authority.
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"Liabilities" means all Indebtedness and other liabilities (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether fixed or unliquidated, and
whether due or to become due), including any such liability for Taxes.
"Losses" means all losses, penalties, charges, claims, damages, dues,
fines, interest, costs, diminution in value (including diminution in value
arising from payments made by the Company pursuant to Section 2), amounts paid
in settlement, Liabilities, Taxes, expenses and fees (including court costs and
attorneys' fees and expenses) incurred by, imposed upon, or asserted against any
Person.
"Managing Underwriter" has the meaning set forth in Section 2.1(e).
"NASD" means the U.S. National Association of Securities Dealers, Inc.
"Person" means an individual, Entity or Governmental Authority.
"Piggyback Registration" has the meaning set forth in Section 2.2(a).
"Registrable Securities" shall mean Company Securities Beneficially
Owned by any Shareholder or its Affiliates or its or their successors or
permitted assigns, at any time and from time to time, and any securities that
may be issued or distributed or be issuable with respect to any such Company
Securities by way of conversion, stock dividend, stock split or other
distribution or in connection with a combination of shares, recapitalization,
merger, consolidation, reorganization, reclassification or otherwise; provided,
however, that any Registrable Securities shall cease to be Registrable
Securities to the extent (a) a Registration Statement with respect to the sale
of such Registrable Securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with the plan
of distribution set forth in such Registration Statement in accordance with
applicable Laws, (b) such Registrable Securities shall have been distributed in
accordance with Rule 144 of the Securities Act or (c) such Registrable
Securities shall have been otherwise transferred pursuant to a Broker's Sale,
and subsequent disposition of such Registrable Securities shall not require
registration or qualification under the Securities Act or any other applicable
Law.
"Registration" means a registration with the Commission of Company
Securities for offer and sale to the public under a Registration Statement. The
term "Register" shall have a correlative meaning.
"Registration Statement" means (i) any registration statement of the
Company filed with, or to be filed with, the Commission 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, and (ii) in the context of any
offering of Company Securities in any Alternative Listing Jurisdiction the
equivalent prospectus, listing particulars or offering circular, as the case may
be, and all other documentation, amendments and supplements thereto required by
the Law of such Alternative Listing Jurisdiction in connection with such
offering.
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"Rights" means, with respect to any Person, any subscription, option,
warrant, convertible or exchangeable security or other right, however
denominated, to subscribe for, purchase or otherwise acquire any capital stock,
other equity interest or other security of any class or series and of any
issuer, with or without payment of additional consideration in cash or property,
either immediately or upon the occurrence of a specified date or a specified
event or the satisfaction or happening of any other condition or contingency.
"Representatives" means, with respect to any Person, any of such
Person's officers, directors, employees, agents, attorneys, accountants,
actuaries, consultants, sources of equity financing or financial advisers or
other Person associated with, or acting on behalf of, such Person.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and any successor thereto, and any rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Shareholders" has the meaning set forth in the preamble.
"Shares" means ordinary shares of the Company, par value HK$0.25 per
share.
"Tax" means all taxes, however denominated, including any interest,
additions to tax or penalties that may become payable in respect thereof,
imposed by any national, state, provincial, local or foreign government or any
agency or political subdivision of any such government, which taxes shall
include, without limiting the generality of the foregoing, all income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, worker's compensation, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Underwritten Offering" means a Registration in which Registrable
Securities are sold to an underwriter or underwriters on a firm commitment basis
for reoffering to the public or in which an underwriter or underwriters commit
to acquire such securities if and to the extent they are not acquired by third
parties.
"U.S." means the United States of America.
1.2. General Interpretive Principles. This Agreement is to be
interpreted in accordance with the following rules of construction:
(a) Number and Gender. All definitions of terms apply equally to both
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.
(b) "Including," "Herein," Etc. The words "include," "includes" and
"including" are deemed to be followed by the phrase "without limitation." The
words "herein,"
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"hereof," and "hereunder" and words of similar import refer to this Agreement in
its entirety and are not limited to any part hereof unless the context shall
otherwise require.
(c) Subdivisions and Attachments. All references in this Agreement to
Sections and subsections are, respectively, references to Sections and
subsections of this Agreement, unless otherwise specified.
(d) References to Documents and Laws. All references to (x) any
agreement or instrument or (y) any requirement of Law, license or similar item
are to it as amended and supplemented from time to time (and, in the case of a
Law, to any corresponding provisions of successor Laws), unless otherwise
specified.
(e) References to Days. Any reference in this Agreement to a "day" or
number of "days" (without the explicit qualification "Business") is a reference
to a calendar day or number of calendar days. If any action or notice is to be
taken or given on or by a particular calendar day, and such calendar day is not
a Business Day, then such action or notice may be taken or given on the next
Business Day.
(f) Examples. If, in any provision of this Agreement, any example is
given (through the use of the words "such as," "for example," "e.g." or
otherwise) of the meaning, intent or operation of any provision, such example is
intended to be illustrative only and not exclusive.
(g) Participation in Drafting. The parties and their respective legal
counsel have participated in the drafting of this Agreement, and this Agreement
will be construed simply and according to its fair meaning and without any
presumption or prejudice for or against any party.
(h) Headings. The table of contents and section headings contained in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 2. REGISTRATION RIGHTS
2.1. Demand Registrations. Commencing six (6) months after the
consummation of an initial public offering of the Company in one or more of the
U.S. or any Alternative Listing Jurisdiction, any Shareholder may from time to
time make a written request to the Company for Registration of all or part of
the outstanding Registrable Securities held by such Shareholder and any of its
Affiliates; provided, that the number of Registrable Securities requested to be
so Registered represents at least one per cent (1%) of all issued and
outstanding Shares. A Registration that is undertaken by the Company in response
to a valid request made by a Shareholder pursuant to this Section 2.1 shall be
referred to herein as a "Demand Registration." Each such request shall specify
the class and the aggregate amount and class of Registrable Securities to be
Registered and the intended methods of disposition and distribution thereof. The
Company shall file, as promptly as practicable (and in any event, within sixty
(60) days) following receipt of a request for a Demand Registration, a
Registration Statement relating to such Demand Registration and shall use its
reasonable best efforts to cause any such Registration Statement promptly to be
declared effective under the Securities Act, the "blue sky"
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laws of such jurisdictions as the Shareholder or underwriter, if any, reasonably
request, or any other Law, as applicable, and to cause such Registration
Statement to remain effective until the later of (i) the date all Registrable
Securities have been sold or (ii) nine (9) months after the effective date of
such Registration Statement.
(b) Each Shareholder may make an unlimited number of requests for a
Demand Registration pursuant to Section 2.1(a); provided, however, that the
Company shall not be required to file a Registration Statement for a Demand
Registration at any time during the one hundred eighty (180) day period
following the effective date of another such Demand Registration Statement.
(c) Any Shareholder and/or its Affiliates may withdraw their
Registrable Securities from a Demand Registration at any time prior to the
effectiveness of the applicable Registration Statement. Upon receipt of a
written notice from a Shareholder to such effect, the Company shall cease all
efforts to secure Registration of such Registrable Securities.
(d) Promptly upon receipt of any request for a Demand Registration
pursuant to Section 2.1(a) (but in no event more than ten (10) Business Days
thereafter), the Company shall deliver a written notice (a "Demand Notice") of
any such Registration request to all other Holders of Registrable Securities,
and the Company shall include in such Demand Registration all such Registrable
Securities with respect to which the Company has received written requests for
inclusion therein from such Holders within twenty-one (21) days after the date
that the Demand Notice has been delivered. All requests made pursuant to this
Section 2.1(d) shall specify the class and aggregate amount of Registrable
Securities to be registered and the intended method of distribution of such
securities.
(e) If a Shareholder that has requested a Demand Registration so
elects, the offering of Registrable Securities pursuant to such Demand
Registration shall be in the form of an Underwritten Offering. If any offering
pursuant to a Demand Registration involves an Underwritten Offering, such
Shareholder shall have the right to select the underwriter or underwriters to
administer the offering; provided, that such underwriter or underwriters shall
be reasonably acceptable to the Company.
(f) If at any time the managing underwriter or underwriters (the
"Managing Underwriter") of a proposed Underwritten Offering of a class of
Registrable Securities included in a Demand Registration (or in the case of a
Demand Registration not being underwritten, the Shareholder requesting such
Demand Registration) informs the Holders of such class of Registrable Securities
in writing that, in its opinion, the total number of Company Securities of such
class proposed to be included in such Demand Registration exceeds the number
which can be sold in (or during the time of) such offering without being likely
to have a significant adverse effect on the price, timing or distribution of the
class of securities offered or the market for the class of securities offered,
then the number of Registrable Securities of such class that, in the opinion of
such Managing Underwriter (or, in the case of a Demand Registration which is not
underwritten, the Shareholder requesting such Demand Registration), can be
included without having such an adverse effect shall be allocated as follows:
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(i) first, pro rata among the Holders which have requested
participation in the Demand Registration (based, for each such
Holder, on the percentage derived by dividing (i) the number of
Registrable Securities of such class which such Holder has
requested to include in such Demand Registration by (ii) the
aggregate number of Registrable Securities of such class which
all such Holders have requested to include); and
(ii) second, and only if all the securities referenced in clause
(i) have been included, pro rata among any other Persons
contractually entitled to participate in such Demand Registration
(based, for each such Person, on the percentage derived by
dividing (i) the number of Registrable Securities of such class
which such Person has requested to include in such Demand
Registration by (ii) the aggregate number of Registrable
Securities of such class which all such Persons have requested to
include).
(g) If the filing, initial effectiveness, publication or continued use
of a Registration Statement in respect of a Demand Registration at any time
would require the Company to make an Adverse Disclosure, the Company may, upon
giving prompt written notice of such action to the Holders, delay the filing or
initial effectiveness of, or suspend use of, such Registration Statement (a
"Demand Suspension"); provided, however, that the Company shall not be permitted
to exercise a Demand Suspension (A) more than once during any six-month period,
(B) for a period exceeding thirty (30) days on any one occasion or (C) for a
period exceeding forty-five (45) days in any twelve-month period. In the case of
a Demand Suspension, the Holders agree to suspend, immediately upon their
receipt of the notice referred to above, use of the prospectus relating to such
Demand Registration in connection with any sale or purchase, or offer to sell or
purchase, Registrable Securities. The Company shall immediately notify the
Holders upon termination of any Demand Suspension, and amend or supplement the
related prospectus, if necessary, so it does not contain any untrue statement or
omission and furnish to the Holders such number of copies of such prospectus as
so amended or supplemented as the Holders may reasonably request. The Company
represents that, as of the date hereof, it has no knowledge of any circumstance
that would reasonably be expected to cause it to exercise its rights under this
Section 2.1(g).
(h) Commencing six (6) months after the consummation of an initial
public offering of the Company in one or more of the U.S. or any Alternative
Listing Jurisdiction, any Shareholder may make a written request to the Company
to initiate a public offering in any Alternative Listing Jurisdiction of all or
part of the outstanding Registrable Securities held by such Shareholder and any
of its Affiliates; provided, that the number of Registrable Securities requested
to be so Registered represents at least one per cent (1%) of all issued and
outstanding Shares. If a Shareholder proposes to initiate such an offering, it
will give written notice to the Company specifying the class and aggregate
amount of Registrable Securities to be offered, the proposed method of
disposition, the proposed exchange(s) on which such Registrable Securities will
be listed (if any) and, if applicable, the proposed filings or registrations
under any applicable securities laws. Upon receipt of such notice, the Company
shall take all necessary action to cause the Company to (i) conduct such an
offering of such Registrable Securities, (ii) list such Registrable Securities
on such exchange(s), and (iii) comply with all applicable securities laws,
including, without limitation, providing such access to records, assistance and
information as
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may be required to enable the production of a prospectus or offering circular
and all other documentation reasonable required by the underwriters, and causing
the Company to give such representations and warranties and to enter into all
underwriting or placement agent agreements, covenants and indemnities with the
underwriters of such offering as are necessary to effect such offering, list the
Registrable Securities on such exchange(s) and comply with all applicable
securities laws. Each request by a Shareholder pursuant to this Section 2.1(h)
shall be deemed to be a request for a Demand Registration. To the fullest extent
possible under applicable Law, with respect to any offering initiated pursuant
to a request under this Section 2.1(h), (y) Holders of Registrable Securities
shall have such rights as against the Company and the underwriter(s) equivalent
to, and providing benefits substantially similar to, the rights the Holders
would enjoy in respect of a Demand Registration hereunder, and (z) such offering
shall be conducted and the Company shall be under the same obligations as though
such offering were a Demand Registration (and, in such context, the terms
"Registration" and "Register" shall mean the publication of the relevant
Registration Statement or filing of such Registration Statement with the
relevant regulatory authority, as the case may be, in accordance with the
applicable Law of such Alternative Listing Jurisdiction).
(j) All registration or listing expenses incurred with respect to or
under this Section 2.1 (other than customary underwriting and broker
commissions, stamp or transfer taxes, and income or capital gains taxes levied
or imposed on the Relevant Shareholder) shall be paid by the Company, including
the reasonable fees and disbursements of one legal firm or counsel in each
relevant jurisdiction to represent the relevant Shareholders in the case of a
Demand Registration.
2.2. Piggyback Registrations. (a) If the Company at any time proposes
to file a Registration Statement with respect to any offering of its securities
for its own account or for the account of other Persons (other than (A) a
Registration under Section 2.1 hereof, (B) a Registration on Form F-4 or S-8 or
any successor form to such forms, or (C) as part of any Registration of
securities for offering and sale to employees or directors of the Company
pursuant to any employee stock plan or other employee benefit plan arrangement),
the Company shall give written notice as soon as practicable, but in no event
less than sixty (60) days prior to the proposed date of filing of such
Registration Statement, to all Holders of Registrable Securities and such notice
shall offer to Holders of Registrable Securities the opportunity, subject to
Section 2.2(b), to Register under such Registration Statement such number of
Registrable Securities as such Holders may request (a "Piggyback Registration").
Within twenty-one (21) days after receipt of such notice, the Holders of
Registrable Securities shall, subject to Section 2.2(b), have the right by
notifying the Company in writing to require the Company to include in such
Registration Statement such number of Registrable Securities as such Holder may
request (including Registrable Securities Beneficially Owned by the Holder's
Affiliates). If the offering pursuant to such Registration Statement is to be an
Underwritten Offering, then the Company shall make such arrangements with the
Managing Underwriter so that the Holders of Registrable Securities and/or their
Affiliates may participate, subject to Section 2.2(b), in such Underwritten
Offering on the same terms as the Company and the other Persons selling
securities in such Underwritten Offering. If the offering pursuant to such
Registration Statement is to be on any other basis, then the Company will make
such arrangements so that each Holder may participate, subject to Section
2.2(b), in such offering on such basis.
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(b) Notwithstanding Section 2.2(a), if at any time the Managing
Underwriter of any proposed Underwritten Offering (or, in the case of an
offering which is not underwritten, the Company) informs the Holders of such
class of Registrable Securities that, in its opinion, the total number of
Company Securities of such class proposed to be sold in such offering (including
the total number of Registrable Securities that the Holders (including any
Registrable Securities of their Affiliates) have requested to be sold in such
offering and the total number of Company Securities requested to be included by
any other selling shareholder entitled to sell Company Securities in such
offering) exceeds the maximum number of Company Securities which the Managing
Underwriter (or the Company, as the case may be) believes may be sold without
materially adversely affecting the price, timing or distribution of the
offering, the number of Registrable Securities of such class that, in the
opinion of such Managing Underwriter (or, in the case of an offering which is
not underwritten, the Company), can be included without having such an adverse
effect shall be allocated as follows:
(i) first, 100% of the securities that the Company has proposed
to sell;
(ii) second, and only if all the securities referenced in clause
(i) have been included, pro rata among the Holders which have
requested participation in the Piggyback Registration (based for
each such Holder, on the percentage derived by dividing (x) the
number of Registrable Securities of such class which such Holder
has requested to include in such Piggyback Registration by (y)
the aggregate number of Registrable Securities of such class
which all such Holders have requested to include); and
(iii) third, and only if all the Registrable Securities
referenced in clauses (i) and (ii) have been included, any other
securities eligible for inclusion in such Registration.
(c) Prior to the effective date of a Registration Statement relating
to an offering described under this Section 2.2, the Company may, at its
election, give written notice to each Holder of Registrable Securities of its
intention to postpone or withdraw any such Registration Statement without
obligation to such Holders. Each Holder of Registrable Securities and/or its
Affiliates shall be permitted to withdraw all or part of their Registrable
Securities from such Registration at any time prior to the effective date
thereof. All Registration expenses of the Holders and/or their Affiliates (other
than customary underwriting and broker commissions) shall be paid by the Company
in the case of any and all Registrations governed by this Section 2.2.
(d) If the Company at any time proposes to offer any securities of the
same class as any Registrable Securities for its own account or for the account
of any holders of its securities (y) to an underwriter or underwriters on a firm
commitment basis for re-offering to the public in any Alternative Listing
Jurisdiction, or (z) in an offering in any Alternative Listing Jurisdiction in
which an underwriter or underwriters commit to acquire such securities if and to
the extent not acquired by third parties, then in such event, to the fullest
extent possible under applicable Law, the Holders of Registrable Securities
shall have with respect to such offering in such Alternative Listing
Jurisdiction participation rights as against the Company and the
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underwriter(s) equivalent to the rights the Holders would enjoy in respect of a
Piggyback Registration hereunder. Notwithstanding the foregoing, the Company
shall not apply to admit to trading on a regulated market within the European
Union or offer to the public within the European Union any equity or debt
securities of the Company without obtaining the prior written consent of the
Shareholders (such consent not to be unreasonably withheld).
2.3. Black-out Periods. (a) In the event of a Registration by the
Company involving the offering and sale by the Company of equity securities or
securities convertible into or exchangeable for its equity securities, the
Holders of Registrable Securities agree, if requested by the Company (or, in the
case of an Underwritten Offering, by the Managing Underwriter), not to effect
any public sale or distribution (excluding any sale pursuant to Rule 144 under
the Securities Act) of any securities (except, in each case, as part of the
applicable Registration, if permitted), which securities are the same as or
similar to those being Registered in connection with such Registration, or which
are convertible into or exchangeable or exercisable for such securities, during
the period beginning seven (7) days before, and ending ninety (90) days (or such
lesser period as may be permitted by the Company or such Managing Underwriter)
after, the effective date of the Registration Statement filed in connection with
such Registration, to the extent such Holders are timely notified in writing by
the Company or the Managing Underwriter; provided, however, that such
restriction shall apply to any individual Holder only to the extent that it
Beneficially Owns five per cent (5)% or more of the then issued Shares at the
date of such request.
(b) (i) In the case of a Registration of a class of Registrable
Securities pursuant to Section 2.1, the Company agrees, if requested by a
Shareholder (or, in the case of an Underwritten Offering, by a Shareholder or
the Managing Underwriter), not to effect (or register for sale) any public sale
or distribution of any securities which are the same as or similar to those
being Registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the period beginning seven (7) days
before, and ending ninety (90) days (or such lesser period as may be permitted
by such Holders or such Managing Underwriter) after, the effective date of the
Registration Statement filed in connection with such Registration (or, in the
case of an Underwritten Offering, the date of the closing under the underwriting
agreement in connection therewith), to the extent the Company is timely notified
in writing by a Holder of Registrable Securities covered by such Registration
Statement or the Managing Underwriter. Notwithstanding the foregoing, the
Company may effect a public sale or distribution of securities of the type
described above and during the periods described above if the same (A) is made
pursuant to Registrations on Form F-4 or S-8 or any successor form to such
forms, or (B) as part of any Registration of securities for offering and sale to
employees or directors of the Company pursuant to any employee stock plan or
other employee benefit plan arrangement.
(ii) The Company agrees to use its reasonable best efforts to obtain
from each holder of "restricted securities" (within the meaning of Rule
144(a)(3) under the Securities Act) of the Company that are the same as or
similar to the Registrable Securities being Registered, or any restricted
securities convertible into or exchangeable or exercisable for any of its
securities, an agreement not to effect any public sale or distribution of such
securities during any period referred to in this Section 2.3(b), except as part
of any such Registration if permitted. Without limiting the foregoing (but
subject to Section 2.5), if after the date hereof the Company grants any Person
(other than a Holder of Registrable Securities) any rights to demand or
participate in
11
a Registration, the Company agrees that the agreement with respect thereto shall
include such Person's agreement as contemplated by the previous sentence.
2.4. Preparation and Filing. Whenever the Company is required to, or
is to use its best efforts to, effect the Registration of any Registrable
Securities pursuant to Section 2.1 or 2.2, the Company will as expeditiously as
possible:
(i) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to promptly become and, subject to a Demand Suspension,
remain effective for the period set forth in subsection (ii) below and promptly
notify the Holders (A) when such Registration Statement becomes effective, (B)
when any amendment to such Registration Statement becomes effective and (C) of
any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional
information;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act, and any other applicable
Laws, with respect to the sale or other disposition of all securities covered by
such Registration Statement for a period of not less than nine (9) months after
the effective date of such Registration Statement (or such shorter period to the
extent necessary to permit the completion of the sale or distribution of such
securities within such period);
(iii) furnish to the Holders, prior to filing a Registration
Statement, copies of such Registration Statement as proposed to be filed and
thereafter, such number of copies of such Registration Statement, each amendment
and supplement thereto, the prospectus included in such Registration Statement
(including each preliminary prospectus) and financial statements, reports and
proxy statements mailed to shareholders of the Company as the Holders may
reasonably request in order to facilitate the disposition of the Registrable
Securities being sold;
(iv) use its best efforts to register or qualify, not later than the
effective date of any filed Registration Statement, the Registrable Securities
covered by such Registration Statement under the securities or "blue sky" laws
of such jurisdictions as any Shareholder and any selling Holder reasonably
requests; provided, that the Company will not be required to (A) qualify to do
business as a foreign corporation or as a dealer in any jurisdiction where it is
not so qualified, (B) subject itself to taxation in any jurisdiction where it is
not subject to taxation, (C) consent to general service of process in any
jurisdiction where it is not subject to general service of process, other than
as a result of the filing of a Registration Statement in accordance with the
terms of this Agreement, or (D) take any action that would subject it to service
of process in suits other than those arising out of the offer or sale of the
Registrable Securities covered by the Registration Statement;
(v) make available, upon reasonable notice and during business hours,
for inspection by the Managing Underwriter(s) for the Registrable Securities
(and counsel representing such Managing Underwriter(s)) (collectively, the
"Inspectors"), all financial and
12
other records, pertinent corporate documents, agreements and properties of the
Company and its Affiliates as shall be reasonably necessary to enable them to
exercise their due diligence responsibilities and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Inspectors in connection with the Registration Statement;
(vi) obtain a comfort letter from the Company's independent public
accountants dated within five (5) Business Days prior to the effective date of
the Registration Statement (and as of such other dates as the Managing
Underwriter(s) for the Registrable Securities may reasonably request) in
customary form and covering such matters of the type customarily covered by such
comfort letters as such Managing Underwriter(s) reasonably request;
(vii) obtain an opinion of counsel dated the effective date of the
Registration Statement (and as of such other dates as the Managing
Underwriter(s) for the Registrable Securities may reasonably request) in
customary form and covering such matters of the type customarily covered by such
opinions as counsel designated by such Managing Underwriter(s) reasonably
request;
(viii) during the period when the Registration Statement is required
to be effective, notify the Shareholders and each selling Holder of the
happening of any event as a result of which the prospectus included in the
Registration Statement contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company will forthwith prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(ix) in the case of an Underwritten Offering, enter into an
underwriting agreement containing customary terms, including such indemnity and
contribution provisions as the Managing Underwriter customarily requires or may
reasonably require;
(x) cause such Registrable Securities to be traded on such securities
exchanges designated by a Holder; and
(xi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of twelve (12) months, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Company may require each Holder of Registrable Securities to
furnish to the Company such information regarding the distribution of
Registrable Securities and such other information relating to each Holder of
Registrable Securities and their ownership of Registrable Securities as the
Company may from time to time reasonably request in writing. Each Holder of
Registrable Securities agrees to furnish such information to the Company and to
13
cooperate with the Company as reasonably necessary to enable the Company to
comply with the provisions of this Agreement.
Each Holder of Registrable Securities agrees that upon the receipt of
any notice from the Company of the happening of any event of the kind described
in Section 2.4(a)(viii), it will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.4(a)(viii). If the
Company gives any such notice, the Company shall keep any such Registration
Statement pursuant to a Demand Registration effective for that number of
additional days equal to the number of days during the period from and including
the date of the giving of such notice pursuant to Section 2.4(a)(viii) to and
including the date on which copies of such supplemented or amended prospectus
are made available to each Holder of Registrable Securities.
2.5. No Inconsistent Agreements; Additional Rights. The Company will
not enter into, and is not currently a party to, any agreement that is, or could
be, inconsistent with the rights granted to Holders of Registrable Securities by
this Agreement and, other than the registration rights granted as provided
herein, has not granted to any party rights with respect to the Registration of
any Registrable Securities or any other securities issued or to be issued by it.
Except for the registration rights granted as provided herein, the Company shall
not provide any other holders of its securities rights with respect to the
Registration of such securities under the Securities Act or any other rule or
regulation or Law, as applicable, without the prior written consent of the
Shareholders (to be granted or denied within their sole discretion).
2.6. Registration Expenses. The Company shall pay all of the expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation (i) all registration and filing fees, and any
other fees and expenses associated with filings required to be made with the
Commission, the NASD or any other Governmental Authority or listing authority,
(ii) all fees and expenses in connection with compliance with state securities
or "blue sky" laws, (iii) all translating, printing, duplicating, word
processing, messenger, telephone, facsimile and delivery expenses (including
expenses of printing certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company or other similar
depository institution and of printing prospectuses), (iv) all fees and
disbursements of counsel for the Company and of all independent certified public
accountants of the Company (including the expenses of any special audit and cold
comfort letter required by or incident to such performance, unless such special
audit was required by the Holders), (v) all fees and expenses relating to the
preparation of a deposit agreement, the deposit of the underlying Company
Securities under the deposit agreement, the issuance thereunder of depositary
shares representing such deposited securities, the issuance of American or
global depositary receipts of the Company evidencing such depositary shares and
the fees of the depositary, (vi) Securities Act or similar liability insurance
if the Company so desires or the underwriter or underwriters, if any, so require
in accordance with then-customary underwriting practice, (vii) all fees and
expenses incurred in connection with the listing of the Registrable Securities
on any securities exchange or the quotation of the Registrable Securities on any
inter-dealer quotation system, (viii) all applicable rating agency fees with
respect to any applicable Registrable Securities, (ix) any reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, (x) all fees and expenses of any special experts or other Persons
retained by the
14
Company in connection with any Registration, and (xi) all fees and expenses
similar, equivalent or analogous to those set forth in the preceding sub-clauses
(i) through (x) which are incurred in any Alternative Listing Jurisdiction. In
addition, in all cases the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any audit and the fees
and expenses of any Person, including special experts, retained by the Company.
In addition, the Company shall pay all reasonable fees and disbursements of one
law firm or other counsel selected by the relevant Shareholder(s) and all fees
and expenses of accountants to the Holders of Registrable Securities being sold.
The Company shall not be required to pay any underwriting discounts and selling
commissions attributable to the sale of Registrable Securities.
2.7. Indemnification. The Company agrees to indemnify and hold
harmless each Holder of Registrable Securities, each shareholder, member, owner
or trustee thereof, each limited and general partner of each such shareholder,
member, owner or trustee, each limited and general partner of each such limited
or general partner and each of their respective Affiliates and Representatives
against any and all Losses, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or any federal, state,
Hong Kong, Cayman Islands or other Law, at common law or otherwise, insofar as
such Losses (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary prospectus or prospectuses contained therein, or in any
amendment thereof or supplement thereto, 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 or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Loss or action; provided,
however, that (x) the Company will not be liable to any Holder (or related
indemnified party) in any case to the extent that any such Loss arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder or the
underwriter(s) for the Registrable Securities specifically for inclusion
therein, and (y) the Company will not be liable to any indemnified party under
these provisions with respect to any Registration Statement or prospectus to the
extent that any such Loss of such indemnified party results from the use of the
prospectus during a period when the use of the prospectus has been suspended in
connection with a Demand Suspension; provided, that in each case, the Holder of
Registrable Securities received prior notice of such suspension. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses, as
provided in Section 2.7(d), of any underwriter(s) of Registrable Securities
registered under a Registration Statement, their officers and directors and each
Person who controls such underwriter(s) on substantially the same basis as that
of the indemnification of the Shareholders provided in this Section 2.7(a) and
shall, if requested by a Shareholder, enter into an underwriting agreement
containing customary terms and conditions, including those related to
indemnification.
15
(b) Each selling Holder of Registrable Securities agrees (severally
and jointly) to indemnify and hold harmless the Company, each shareholder,
member, owner or trustee thereof, each limited and general partner of each such
shareholder, member, owner or trustee, each limited and general partner of each
such limited or general partner and each of their Affiliates and Representatives
to the same extent as the foregoing indemnity from the Company to each selling
Holder, but only with reference to written information relating to such selling
Holder furnished to the Company by or on behalf of such selling Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, that in no case shall a Holder of Registrable Securities be
responsible, in the aggregate, for any amount in excess of the amount of the
proceeds received by such Holder of Registrable Securities from the sale of its
Registrable Securities. This indemnity agreement will be in addition to any
liability which the Holders of Registrable Securities may otherwise have.
(c) The following provisions shall apply to claims for Losses
hereunder based on or resulting from any suit, action, investigation, claim or
Proceeding brought by a third party (a "Claim"). Promptly after receipt by an
indemnified party under this Section 2.7 of notice of the commencement of any
action, such indemnified party will, if a Claim in respect thereof is to be made
against the indemnifying party under this Section 2.7, notify the indemnifying
party in writing of the commencement thereof, but the failure so to notify the
indemnifying party will not relieve it from liability under paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party; provided, however, that the indemnifying party shall
be obligated to pay for only one such separate counsel for all indemnified
parties in each action or related group of actions. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened Claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such Claim) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such Claim.
16
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 2.7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate Losses to which such indemnified party
may be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided, that in no case shall a Holder of Registrable
Securities be responsible, in the aggregate, for any amount in excess of the
amount of the proceeds received by such Holder of Registrable Securities from
the sale of its Registrable Securities. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the indemnifying party, on the
one hand, or by the indemnified party, on the other hand. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (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. For purposes of this Section 2.7, each Person who controls a
Holder of Registrable Securities within the meaning of either the Securities Act
or the Exchange Act and each partner, member, director, officer, employee and
agent of such Holder of Registrable Securities shall have the same rights to
contribution as such Holder of Registrable Securities, and each Person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act, and each director, officer, employee and agent of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
The provisions of this Section 2.7 will remain in full force and
effect, regardless of any investigation made by or on behalf of a Holder of
Registrable Securities or the Company or any of the partners, members, officers,
directors or controlling Persons referred to in this Section 2.7, and will
survive the sale by such Holder of Registrable Securities covered by a
Registration Statement.
2.8. Adjustments Affecting Registrable Securities. The Company shall
not effect or permit to occur any combination or subdivision of Company
Securities which would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in any
Registration of its securities contemplated by this Section 2 or the
marketability of such Registrable Securities under any such Registration.
2.9. Rules 144 and 144A; Regulation S. The Company covenants that it
will, at its own expense, file the reports required to be filed by it, if any,
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder (or, if the Company is not required to file
such reports, it will, upon the request of any Holder of
17
Registrable Securities, make publicly available such necessary information for
so long as necessary to permit sales pursuant to Rule 144, Rule 144A or
Regulation S under the Securities Act), and it will take such further action any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder and /or its Affiliates to sell
Registrable Securities without Registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 or 144A or Regulation S
under the Securities Act, as such rules or regulations may be amended from time
to time, or (ii) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements and, if not, the specifics thereof.
2.10. Certain Other Offerings. (a) Upon request of any Shareholder,
the Company will use its best efforts to assist such Shareholder and its
Affiliates in connection with any proposed offer and sale of any Company
Securities that is not to be registered under the Securities Act, including any
efforts required to facilitate the offer and sale of Company Securities in
exchangeable bond or any other form in reliance on any exemption from the
registration requirements of the Securities Act. The Company accordingly agrees
that it will, upon the request of such Shareholder, prepare an offering document
in customary form, and enter into an underwriting or purchase agreement
containing customary terms and provisions reasonably acceptable to the Company,
in connection with such a proposed offer and sale of Company Securities, and
take all such other customary actions (including participation by the Company's
management in roadshows and other meetings with investors) as may reasonably be
requested to facilitate such offer and sale.
(b) The Company hereby undertakes and agrees that for so long as any
of the Company Securities are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, or any Holder of Registrable Securities that
hold any Company Securities may be deemed an "affiliate" of the Company within
the meaning of Rule 144 under such Act, the Company will, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, or is not exempt from such reporting requirements pursuant to and
in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder
of such securities and to each prospective purchaser (as designated by such
Holder) of such securities, upon the request of such Holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Securities Act.
SECTION 3. MISCELLANEOUS
3.1. Term. This Agreement shall terminate in its entirety on the
earliest of: (A) if there has not been a consummation of an initial public
offering of Company Securities in one or more of the U.S. or any Alternative
Listing Jurisdiction within six (6) months of the date of this Agreement, on the
expiry of six (6) months after the date of this Agreement, (B) the date as of
which all of the Registrable Securities have been sold pursuant to a
Registration Statement (but in no event prior to the applicable period referred
to in Section 4(3) of the Securities Act and Rule 174 thereunder), or (C) the
date as of which the Holders are permitted to sell their Registrable Securities
under Rule 144(k) under the Securities Act (or any similar provision then in
force permitting the sale of restricted securities without limitation on the
amount of securities sold or the manner of sale). This Agreement shall terminate
as between the Company and any
18
individual Holder on the date as of which the number of shares of each class of
Registrable Securities Beneficially Owned by such Holder and its Affiliates is
less than one percent (1%) of the total number of shares of such class of
securities that are issued and outstanding. The provisions of Sections 2.7 and
2.9 and this Section 3 shall survive any of termination described in this
Section 3.1.
3.2. Injunctive Relief. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including, without
limitation, specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at Law.
3.3. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable Law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
3.4. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing, shall be effective upon receipt
and shall be delivered personally or by an internationally recognized express
courier or sent by facsimile as follows:
(a) if to the Company to:
Xxxxxxxxx Telecommunications International Limited
18th floor, Two Harbourfront
00 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxx Xxxx
Facsimile: 000-0000-0000
Attention: The Company Secretary
(b) if to a Shareholder to the address or number set forth opposite
such Shareholder's name on Schedule I.
Each Holder, by written notice given to the Company in accordance with
this Section 3.4 may change the address to which notices, other communications
or documents are to be sent to such Holder. Any party may send any notice,
request, demand, claim, or other communication hereunder to the intended
recipient at the address set forth above using any other means (including
personal delivery, expedited courier, messenger service, facsimile transmission,
ordinary mail or electronic mail), but no such notice, request, demand, claim,
or other communication shall be deemed to have been duly given unless and until
it actually is received by the intended recipient. Any party may change the
address to which notices, requests,
19
demands, claims, and other communications hereunder are to be delivered by
giving the other parties notice in the manner herein set forth.
3.5. Successors, Assigns and Transferees. (a) The rights of each
Shareholder under this Agreement with respect to any Registrable Securities may
be transferred and assigned (in whole or in part) to any Person; provided,
however, that no such assignment shall be binding upon or obligate the Company
to any such assignee unless and until the Company shall have received notice of
such assignment as herein provided and a written agreement of the assignee to be
bound by the provisions of this Agreement. Any transfer or assignment made other
than as provided in the first sentence of this Section 3.5 shall be null and
void.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective successors and permitted
assigns. Whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the parties hereto
other than the Company shall also be for the benefit of and enforceable by any
subsequent Holder of Registrable Securities, subject to the provisions contained
herein.
3.6. Governing Law; Service of Process; Consent to Jurisdiction. (a)
This Agreement shall be governed by and construed and interpreted in accordance
with the law of the State of New York, which shall govern this Agreement and any
controversy or claim arising out of or relating to this Agreement.
(b) Each of the parties hereby (i) submits unconditionally to the
non-exclusive jurisdiction of the state and federal courts located in the city
of New York, County of New York for purposes of all legal proceedings arising
out of, or in connection with, this Agreement or the transactions contemplated
hereby, and (ii) irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
(c) Each of the parties irrevocably and unconditionally waives trial
by jury in any legal action or proceeding relating to this Agreement and for any
counterclaim therein.
3.7. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
3.8. Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable Law. If any provision of this Agreement or
the application thereof to any person or circumstance is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision outside of the
jurisdiction of such court or to Persons or circumstances other than those as to
which it has been held invalid, void or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby.
20
3.9. 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, the Holders of a majority of Registrable Securities
then outstanding and, so long as it is a Holder, each Shareholder. Each Holder
of any Registrable Securities at the time or thereafter outstanding shall be
bound by any amendment, modification, waiver or consent authorized by this
Section 3.10(a), whether or not such Registrable Securities shall have been
marked accordingly.
(b) The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach. Except
as otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
3.10. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to constitute one and the same agreement. In addition to any other
lawful means of execution or delivery, this Agreement may be executed by
facsimile signatures and may be delivered by the exchange of counterparts of
signature pages by means of telecopier transmission.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
XXXXXXXXX TELECOMMUNICATIONS
INTERNATIONAL LIMITED
By /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Director
XXXXXXXXX TELECOMMUNICATIONS INVESTMENT
HOLDINGS LIMITED
By /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Director
XXXXXX KONG (HOLDINGS) LIMITED
By /s/ Xxx Xxx Wan, Ezra
------------------------------------
Name: Xxx Xxx Xxx, Xxxx
Title: Executive Director
22
Schedule I
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Shareholder Notice Details
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Xxxxxxxxx Telecommunications Investment 22 Floor, Xxxxxxxxx House
Holdings Limited 00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax: x000-0000-0000
Attention: The Company Secretary
--------------------------------------------------------------------------------
Xxxxxx Kong (Holdings) Limited 7th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax: x000-0000-0000
Attention: The Company Secretary
--------------------------------------------------------------------------------
1
