EXHIBIT 10.12
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is made as of September 5, 2002, among MDCP Acquisitions plc, a
public limited company registered under the laws of the Republic of Ireland (the
"COMPANY"), each of the MDCP Co-Investors and each of the Persons listed on the
Schedule of Minority Investors attached hereto (each a "MINORITY INVESTOR" and
collectively, the "MINORITY INVESTORS"). The MDCP Co-Investors and the Minority
Investors are collectively referred to herein as the "INVESTORS" and
individually as an "INVESTOR". Capitalized terms used but not otherwise defined
herein have the meanings set forth in SECTION 7 hereof.
WHEREAS, the Company and certain of the Investors are parties to that
certain Registration Rights Agreement, dated as of July 4, 2002 (the "EXISTING
AGREEMENT"); and
WHEREAS, this Agreement amends and restates in its entirety the
Existing Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION.
(i) At any time prior to the Company's Initial Public Offering,
the holders of a majority of the MDCP Co-Investor Registrable Securities may
request registration under the Securities Act of all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration (a
"LONG-FORM REGISTRATION").
(ii) At any time after the Company's Initial Public Offering, the
holders of a majority of the MDCP Co-Investor Registrable Securities may request
three Long-Form Registrations and, if available, an unlimited number of
registrations under the Securities Act of all or any portion of their
Registrable Securities on Form S-2 or Form S-3 or any similar short-form
registration ("SHORT-FORM REGISTRATIONS").
Each such request for registration under this SECTION 1(a) is referred to herein
as a "DEMAND REGISTRATION." All requests for Demand Registrations shall be made
by giving written notice to the Company (the "DEMAND NOTICE"). Each Demand
Notice shall specify the approximate number of Registrable Securities requested
to be registered and the anticipated per share price range for such offering.
Within ten days after receipt of any Demand Notice, the Company shall give
written notice of such requested registration to all other holders of
Registrable Securities and, subject to the provisions of SECTION 1(e) below,
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for
inclusion therein within 20 days after the receipt by such holders of the
Company's notice.
(b) EXPENSE. The Company shall pay all Registration Expenses of all
holders of Registrable Securities in all Demand Registrations.
(c) LONG-FORM REGISTRATIONS. A registration shall not count as one of
the permitted Long-Form Registrations until it has become effective or if the
holders of Registrable Securities initially requesting such registration are not
able to register and sell at least ninety percent (90%) of the Registrable
Securities requested to be included in such registration; PROVIDED that the
Company shall in any event pay all Registration Expenses in connection with any
registration initiated as a Demand Registration whether or not it has become
effective and whether or not such registration has counted as one of the
permitted Long-Form Registrations. All Long-Form Registrations shall be
underwritten registrations unless otherwise requested by the holders of a
majority of the Registrable Securities included in such registration.
(d) SHORT-FORM REGISTRATIONS. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Exchange Act, the Company shall use its best efforts to make Short-Form
Registrations on Form S-2 or Form S-3 (or any successor form) available for the
sale of Registrable Securities.
(e) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requesting registration, the Company shall include in such registration the
number which can be so sold in the following order of priorities: (i) first,
among the Registrable Securities, if any, requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of Registrable Securities owned by each such holder (but in
no event greater than the amount requested to be included by such holder) and
(ii) second, other securities requested to be included in such registration.
(f) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration which is a Long-Form Registration
within 180 days after the effective date of a previous Demand Registration which
was a Long-Form Registration or a previous registration in which the holders of
Registrable Securities were given piggyback rights pursuant to SECTION 2 and in
which there was no reduction in the number of Registrable Securities requested
to be included therein. The Company may postpone for up to 180 days the filing
or the effectiveness of a registration statement for a Demand Registration if
the Board determines in its reasonable good faith judgment that such Demand
Registration would reasonably be expected to have a material adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to engage in any
material acquisition of assets (other than in the
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ordinary course of business) or any material merger, consolidation, tender
offer, reorganization or similar transaction; PROVIDED that in such event, the
holders of Registrable Securities initially requesting such Demand Registration
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand
Registrations hereunder and the Company shall pay all Registration Expenses in
connection with such withdrawn registration. The Company may delay a Demand
Registration hereunder only once in any twelve-month period.
(g) SELECTION OF UNDERWRITERS. Subject to the approval of the holders
of a majority of the MDCP Co-Investor Registrable Securities, the Board shall
select the investment banker(s) and manager(s) to administer any underwritten
offering pursuant to this SECTION 1.
(h) OTHER REGISTRATION RIGHTS. The Company represents and warrants
that it is not a party to, or otherwise subject to, any other agreement granting
registration rights to any other Person with respect to any securities of the
Company. Except as provided in this Agreement (including SECTION 8(d)), the
Company shall not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the MDCP Co-Investor Registrable
Securities (or, if there are no MDCP Co-Investor Registrable Securities,
Registrable Securities); PROVIDED that the Company may grant rights to other
Persons to participate in Piggyback Registrations so long as such rights are
subordinate to the rights of the holders of Registrable Securities with respect
to such Piggyback Registrations; and provided further that no such grant will
treat holders of a different class of Registrable Securities in an adversely
different manner without the consent of the holders of a majority of such class
of Registrable Securities. Each holder of Other Registrable Securities
irrevocably agrees that a grant of demand registration rights or piggyback
registration rights to any Person does not treat holders of Other Registrable
Securities in an adversely different manner from holders of MDCP Co-Investor
Registrable Securities as long as upon any underwriters cut-back in connection
with any such registration, holders of Other Registrable Securities and MDCP
Co-Investor Securities are cut back ratably vis-a-vis each other based on the
number of Registrable Securities requested to be included by such holders in
such registration.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its securities under the Securities Act (whether pursuant to a Demand
Registration or otherwise), other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor form (a "PIGGYBACK REGISTRATION"), the
Company shall give prompt written notice (in any event within five business days
after its receipt of notice of any exercise of demand registration rights) to
all holders of Registrable Securities and all holders of Class D Convertible
Shares party to this Agreement of its intention to effect such a registration
(including, to the extent known, a reasonable description of the terms thereof)
and shall, subject to the provisions of SECTIONS 2(c) and 2(d) below, include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 20 days after the
receipt by such holders of the Company's notice.
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(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company shall include in such registration: (i)
first, the securities the Company proposes to sell; (ii) second, among the
Registrable Securities, if any, requested to be included in such registration,
pro rata among the holders of such Registrable Securities on the basis of the
number of Registrable Securities owned by each such holder (but in no event
greater than the amount requested to be included by such holder); and (iii)
third, other securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of such
securities initially requesting such registration, the Company shall include in
such registration: (i) first, among the Registrable Securities, if any,
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of Registrable Securities
owned by each such holder (but in no event greater than the amount requested to
be included by such holder); and (ii) second, other securities requested to be
included in such registration.
(e) WITHDRAWAL. If as a result of any pro-ration pursuant to
paragraphs (c) or (d) of this SECTION 2, any holder of Registrable Securities
shall not be permitted to include in a registration all of the Registrable
Securities that such holder had requested to be included, such holder may elect
to either withdraw its request for inclusion or reduce the number of Registrable
Securities to be included in such registration, provided such election is made,
in writing and irrevocably, reasonably in advance of the execution of any
underwriting agreement or custody agreement relating to such registration.
(f) SELECTION OF UNDERWRITERS. Subject to the approval of the holders
of a majority of the MDCP Co-Investor Registrable Securities, the Board shall
select the investment banker(s) and manager(s) to administer any underwritten
offering pursuant to this SECTION 2.
(g) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
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3. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to the counsel selected by the holders of a majority
of the MDCP Co-Investor Registrable Securities (or if there are no MDCP
Co-Investor Registrable Securities, Registrable Securities) covered by such
registration statement copies of all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and 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 for a period of not less than 180 days and
otherwise comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities 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 such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such
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Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq and, if listed on the
Nasdaq, use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a Nasdaq "national market
system security" within the meaning of Rule 11Aa2-1 of the SEC or, failing that,
to secure Nasdaq authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
National Association of Securities Dealers;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the MDCP Co-Investor Registrable Securities (or if there are no
MDCP Co-Investor Registrable Securities, Registrable Securities) being sold or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including effecting a share
split, a combination of shares or other recapitalization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale
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in any jurisdiction, the Company shall use its best efforts promptly to obtain
the withdrawal of such order;
(m) obtain a cold comfort letter from the Company's independent public
accountants and an opinion from the Company's outside counsel, each in customary
form and covering such matters of the type customarily covered by cold comfort
letters and legal opinions, respectively, as the holders of a majority of the
MDCP Co-Investor Registrable Securities (or if there are no MDCP Co-Investor
Registrable Securities, Registrable Securities) being sold reasonably request;
(n) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of the Registrable Securities; and
(o) take such other actions - including causing such officers of the
Company and its Subsidiaries as are requested by the managing underwriters to
participate in "road shows" or similar marketing efforts conducted by such
underwriters in connection with any underwritten offering pursuant hereto - as
the holders of a majority of the MDCP Co-Investor Registrable Securities (or if
there are no MDCP Co-Investor Registrable Securities, Registrable Securities)
being sold reasonably request.
4. REGISTRATION EXPENSES.
(a) EXPENSES. All expenses incident to the Company's performance of or
compliance with this Agreement, including all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, fees and disbursements of custodians, and fees
and disbursements of counsel for the Company and all independent certified
public accountants, underwriters (excluding discounts, commissions and transfer
taxes) and other Persons retained by the Company (all such expenses being herein
called "REGISTRATION EXPENSES"), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the Nasdaq.
(b) REIMBURSEMENT OF COUNSEL. In connection with each Demand
Registration and each Piggyback Registration, the Company shall reimburse the
holders of Registrable Securities included in such registration for (i) the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the MDCP Co-Investor Registrable Securities (or, if none,
Registrable Securities) included in such registration and (ii) the reasonable
fees and disbursements of each additional counsel retained by any holder of
Registrable Securities solely for the purpose of rendering a legal opinion to
underwriters on behalf of such holder in connection with any underwritten Demand
Registration or Piggyback Registration.
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(c) PAYMENT OF CERTAIN EXPENSES BY HOLDERS OF REGISTRABLE SECURITIES.
Underwriting discounts and commissions and transfer taxes relating to the
Registrable Securities included in any registration hereunder, and all fees and
expenses of counsel for any holder of Registrable Securities (other than fees
and expenses to be reimbursed by the Company as set forth in SECTION 4(B) above)
shall be borne and paid by the holders of such Registrable Securities.
5. INDEMNIFICATION.
(a) INDEMNIFICATION OBLIGATIONS OF THE COMPANY. The Company agrees to
indemnify, to the extent permitted by law, each holder of Registrable Securities
participating in an offering pursuant to this Agreement, its officers,
directors, partners, employees, advisors and agents and each Person that
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment or supplement
thereto relating to such offering or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the prospectus or
any amendments or supplements thereto after the Company has furnished such
holder with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers, directors, partners, employees, advisors and agents and each Person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) INDEMNIFICATION OBLIGATIONS OF HOLDERS OF REGISTRABLE SECURITIES.
In connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such registration statement, related prospectus or
preliminary prospectus or any amendment or supplement thereto and, to the extent
permitted by law, shall indemnify the Company, its directors, officers,
partners, employees, advisors and agents and each Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in such registration statement, prospectus,
preliminary prospectus, amendment or supplement or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing expressly for use therein by such holder; PROVIDED that the
obligation to indemnify shall be individual, not joint and several, for each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) INDEMNIFICATION PROCEDURES. Any Person entitled to indemnification
hereunder shall (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided that the failure
to give prompt notice shall not impair any Person's right to indemnification
hereunder to the extent such failure has not prejudiced the
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indemnifying party) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement or compromise made by the
indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) OTHER INDEMNIFICATION PROVISIONS; CONTRIBUTION. The
indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director, partner, employee, advisor, agent or controlling
Person of such indemnified party and shall survive the transfer of securities.
The Company also agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason such that such provisions provide
the same obligations and benefits to the indemnified party as those which would
have been applicable had the indemnification provisions in SECTIONS 5(a) and
5(b) been available taking into account all of the limitations set forth in
SECTIONS 5(a) and 5(b).
6. PARTICIPATION; HOLDBACK.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes such questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents as are customary and reasonably required under
the terms of such underwriting arrangements; PROVIDED that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters (other than customary representations and warranties regarding such
holder and 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 5(b) hereof, or to the underwriters with respect
thereto.
(b) Without limiting the generality of SECTION 5(a), no holder of
Registrable Securities shall effect any public sale or distribution of any
Registrable Securities or of any other capital stock or equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such stock or securities, during the seven days prior to and the 180-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration unless the underwriters managing the
registration otherwise agree; PROVIDED that (without limiting the provisions of
any other lock-up to which a holder of Registrable Securities may be subject) in
the event that the underwriters managing the
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registration agree to release any holder of Registrable Securities from the
provisions of this SECTION 6(b) with respect to all or any portion of such
holder's Registrable Securities, such release shall be effective only if each
holder is ratably (based on the number of Registrable Securities held by each
such holder) released from the provisions of this SECTION 6(b). The restrictions
on the transfer of Registrable Securities set forth in this SECTION 6(b) shall
continue with respect to each Registrable Security until the date on which such
Registrable Security has been transferred in a Public Sale.
7. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person or any other
Person that is a Permitted Transferee of such Person within the meaning of the
Shareholders Agreement.
"BOARD" means the Company's board of directors.
"CLASS D CONVERTIBLE SHARES" shall have the meaning given to such term
in the Company's Articles of Association.
"CONVERTIBLE SHARES" shall have the meaning given to such term in the
Company's Articles of Association.
"EXCHANGE ACT" mans the United States Securities Exchange Act of 1934,
as amended from time to time.
"FAMILY GROUP" means any Minority Investor's spouse, descendants
(whether natural or adopted), siblings and siblings' descendants and any trust
solely for the benefit of a Minority Investor and/or such Minority Investor's
spouse, descendants, siblings and/or siblings' descendants.
"INITIAL PUBLIC OFFERING" means the initial sale of Ordinary Shares to
the public registered under the Securities Act on Form S-1 or any similar form.
"MDCP CO-INVESTOR REGISTRABLE SECURITIES" means all Registrable
Securities held by the MDCP Co-Investors and their respective Affiliates and, to
the extent agreed to in writing by the holders of a majority of the MDCP
Co-Investor Registrable Securities, any of their transferees, successors or
assigns.
"MDCP CO-INVESTORS" means, collectively, MDCP IV Global Investments
LP, MDCP III Global Investments LP, MDSE III Global Investments LP and any
Affiliate of the foregoing that owns or holds Ordinary Shares as of the date of
determination and "MDCP Co-Investor" means any of the MDCP Co-Investors.
"ORDINARY SHARES" means the Company's Ordinary Shares, nominal value
E0.001 per share, or any shares into which the Ordinary Shares are converted or
exchanged.
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""OTHER REGISTRABLE SECURITIES" means, collectively, all Registrable
Securities other than the MDCP Co-Investor Registrable Securities; PROVIDED
that, without the consent of the holders of a majority of the MDCP Co-Investor
Registrable Securities, Other Registrable Securities shall not include any
Ordinary Shares held by any Person other than a Minority Investor or any of its
Affiliates or Family Group.
"PERMITTED TRANSFEREE" has the meaning given to such term in the
Shareholders Agreement.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC SALE" means any sale of Registrable Securities to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"REGISTRABLE SECURITIES" means (i) any Ordinary Shares held by any
party hereto (or issued upon conversion of any Class D Convertible Shares of the
Company held by any party hereto), (ii) any Ordinary Shares issued or issuable
with respect to the securities referred to in clause (i) by way of a share
dividend or share split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise;
PROVIDED that with respect to any Registrable Securities, such securities shall
cease to be Registrable Securities (x) when they have been distributed to the
public pursuant to an offering registered under the Securities Act or sold to
the public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule promulgated by the SEC then in
force) and (y) unless otherwise consented to by the holders of a majority of the
MDCP Co-Investor Registrable Securities, when any Registrable Securities are
held by any Person other than a MDCP Co-Investor, a Minority Investor or any of
their respective Affiliates or Family Group.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended from time to time.
"SHAREHOLDERS AGREEMENT" means that certain Subscription and
Shareholders Agreement, dated as of September 5, 2002, by and among the Company,
the MDCP Co-Investors
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at
11
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing general partner of such limited liability
company, partnership, association or other business entity. Reference to any
"Subsidiary" of the Company shall be given effect only at such times as the
Company has one or more Subsidiaries.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including effecting a share split or a combination of shares).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the MDCP
Co-Investor Registrable Securities (or if there are no MDCP Co-Investor
Registrable Securities, Registrable Securities); PROVIDED that if any such
amendment or waiver would adversely affect the holders of any class of
Registrable Securities relative to the holders of Registrable Securities voting
in favor of such amendment or waiver (including the holders of Other Registrable
Securities relative to the holders of MDCP Co-Investor Registrable Securities),
such amendment or waiver shall also require the approval of the holders of a
majority of the class of Registrable Securities (treating the Other Registrable
Securities as a separate class for this purpose) held by all holders so
adversely affected. Each party hereto agrees that each Person issued Ordinary
Shares or Convertible Shares by the Company pursuant to the Company's 2002
Management Equity Plan shall, without the consent of any other Investor party
hereto, be entitled to registration rights as a Minority Investor hereunder by
execution of a counterpart to this Agreement and, upon such joinder, each Person
party hereto shall be a Minority Investor for all purposes of this Agreement
(and the SCHEDULE OF INVESTORS
12
shall be updated accordingly). Furthermore, each party hereto agrees that each
Person to whom any MDCP Co-Investor transfers MDCP Co-Investor Registrable
Securities shall, without the consent of any other Investor party hereto, be
entitled to registration rights as a holder of Other Registrable Securities, or
if consented to by the MDCP Co-Investor Majority, MDCP Co-Investor Registrable
Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Without limiting the foregoing, the Company shall
not engage in a merger, business combination or other extraordinary transaction
in which it is not the surviving parent company, and shall not transfer all or
substantially all of its assets to another company or entity, unless the
successor parent company or entity expressly assumes all of the Company's
obligations hereunder. In addition, whether or not any express assignment has
been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. The rights and
obligations of the MDCP Co-Investors under this Agreement and the agreements
contemplated hereby may be assigned by the MDCP Co-Investors at any time, in
whole or in part, to any investment fund controlling, controlled by or under
common control with the MDCP Co-Investors, or any successor thereto or to any
co-investment vehicle for the benefit of all or some of the employees of Madison
Dearborn Partners, LLC or any successor thereto.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement. Any Person may at any time after the date hereof, with
the prior written approval of the holders of a majority of the MDCP Co-Investor
Registrable Securities (or if there are no MDCP Co-Investor Registrable
Securities, Registrable Securities) and the Company, become a party to this
Agreement by executing a counterpart to this Agreement agreeing to be bound by
the provisions hereof as if such Person were an original signatory hereto (which
joinder shall not constitute a modification, amendment, or waiver hereof).
(h) DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT CONSTRUCTION. The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include" or "including" in this
Agreement shall be by way of
13
example rather than by limitation. The use of the words "or," "either" or "any"
shall not be exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(i) GOVERNING LAW. The Agreement and the exhibits and schedules hereto
shall be governed by and construed in accordance with the laws of the State of
New York.
(j) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, one day after being sent to the recipient by reputable express
courier service by overnight mail (charges prepaid) or by facsimile (receipt
confirmed). Such notices, demands and other communications shall be sent to the
Investors and to the Company at the address indicated below:
IF TO THE COMPANY:
MDCP ACQUISITIONS PLC
x/x Xxxxxx Xxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxx
Attention: Xxxxx X'Xxxxx
Facsimile: x000-0-000-0000
WITH COPIES TO:
the MDCP Co-Investors (at the address indicated below)
and:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
Attention: Xxxxxxx X. Xxxxxx, P.C.
Facsimile: (000) 000-0000
IF TO THE MDCP CO-INVESTORS:
c/o Madison Dearborn Partners, LLC
Three First National Plaza, Suite 3800
14
70 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
XXX
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
XXX
Attention: Xxxxxxx X. Xxxxxx, P.C.
Facsimile: (000) 000-0000
IF TO ANY MINORITY INVESTOR:
To the address set forth on the Schedule of Minority Investors
attached hereto
WITH A COPY TO:
c/o Xxxxxxx Xxx Solicitors
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
Xxxxxxx
Attention: Xxxx X'Xxxxxxx
Facsimile: x000-0-000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(k) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the United States, the time period shall automatically be extended to the
business day immediately following such Saturday, Sunday or legal holiday.
(l) DELIVERY BY FACSIMILE. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such
15
agreement or instrument shall raise the use of a facsimile machine to deliver a
signature or the fact that any signature or agreement or instrument was
transmitted or communicated through the use of a facsimile machine as a defense
to the formation or enforceability of a contract and each such party forever
waives any such defense.
(m) ENTIRE AGREEMENT. This Agreement embodies the complete agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way (including, without limitation, the
Existing Agreement).
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
MDCP ACQUISITIONS PLC
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Its:
------------------------------
MDCP IV GLOBAL INVESTMENTS LP
By: MDP IV Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Its:
------------------------------
MDCP III GLOBAL INVESTMENTS LP
By: MDP III Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Its:
------------------------------
MDSE III GLOBAL INVESTMENTS LP
By: MDP III Global GP, LP
Its: General Partner
By: MDP Global Investors Limited
Its: General Partner
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Its:
------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
/s/ DR. XXXXXXX X. X. SMURFIT
---------------------------------------
Dr. Xxxxxxx X.X. Smurfit
/s/ XXXX XXXXXX
---------------------------------------
Xxxx XxXxxx
/s/ XXXXXXX X.X. SMURFIT
---------------------------------------
Xxxxxxx X.X. Smurfit
/s/ XXX X. XXXXXX
---------------------------------------
Xxx X. Xxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
DBCP EUROPE GP (JERSEY) LIMITED
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Attorney in fact
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
X.X. XXXXXX PARTNERS GLOBAL INVESTORS, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN), L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL
INVESTORS A, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN)II, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXXX STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX STREET FUND, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXX STREET FUND, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PASSAGE PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC,
its general partner
By: MLIM Private Equity, L.P.,
its managing member
By: Portfolio Administration &
Management Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
SPECIAL CO-INVEST I
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Its:
----------------------------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXXXXX COMPANY, L.L.C.
By: /s/ [ILLEGIBLE]
----------------------------------
Its: Member-Manager
----------------------------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ XXXX X. XXXXXXX
----------------------------------
Xxxx X. Xxxxxxx
SIGNATURE PAGE TO SUBSCRIPTION AND SHAREHOLDERS AGREEMENT
NORTHWESTERN UNIVERSITY
By: /s/ XXXXXXX X. XxXXXX
----------------------------------
Xxxxxxx X. XxXxxx
Its: Vice President & Chief Investment
Officer
----------------------------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXXXXX STREET PARTNERS V
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Xxxxxxx X. Xxxxxx
Its: Managing Partner
----------------------------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF MINORITY INVESTORS
Dr. Xxxxxxx X.X. Smurfit
Xxxxx Xxx Xxxxxxxx
0 Xxxxx Xxxxxx Xxxxxx
00000 Xxxxxx
Xxxx XxXxxx
Xxxxxxxxxxx
Xxxxxxxxxx
Xxxxxxxxxx
Xxxxxx 0
Xxxxxxx X.X. Smurfit
Fournaughts
Johnstown
Naas
Co Kildare
Xxx X. Xxxxxx
0 Xxxxx Xxxxx
Xxxxxxxxxxx Xxxx
Xxxxxx
Xx Xxxxxx
DBCP Europe GP (Jersey) Limited
XX Xxx 00,
00 Xxxxxxxxx Xxxxxx,
Xx. Xxxxxx,
Xxxxxx XX0 0XX
X.X. Xxxxxx Partners Global Investors, L.P.
Equity Investments
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Partners Investors (Cayman), L.P.
Equity Investments
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Partners Global Investors A, L.P.
Equity Investments
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Partners Global Investors
(Cayman) II, L.P.
Equity Investments
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Partners (BHCA), L.P.
Equity Investments
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Street Portfolio, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Street Fund, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx Street Portfolio, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx Street Fund, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Passage Portfolio, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Special Co-Invest I
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Schwerin Company, L.L.C.
X.X. Xxx 000
0 Xxxxxxx Xxxxxx
Xxxxxx Xxx, XX 00000
Xxxx X. Xxxxxxx
00000 Xxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Northwestern University
Investment Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Street Partners V
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
