EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 1,
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 2,
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 3,
BA CAPITAL INVESTORS SIDECAR FUND, L.P.
AND
XXXXXXXXXX XXXXXXX HOLDINGS CAPITAL PARTNERS (CAYMAN) IV LTD.
DATED AS OF APRIL 6, 2004
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS...................................................................................1
SECTION 1.1 CERTAIN DEFINITIONS...........................................................1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS; INTERPRETATION.................................3
ARTICLE II REGISTRATION RIGHTS..........................................................................4
SECTION 2.1 INCIDENTAL REGISTRATION.......................................................4
SECTION 2.2 DEMAND REGISTRATION...........................................................5
SECTION 2.3 HOLDBACK......................................................................6
SECTION 2.4 OTHER REGISTRATION-RELATED MATTERS............................................7
ARTICLE III INDEMNIFICATION............................................................................11
SECTION 3.1 INDEMNIFICATION BY THE COMPANY...............................................11
SECTION 3.2 INDEMNIFICATION BY THE SHAREHOLDERS..........................................11
SECTION 3.3 NOTICES OF CLAIMS, ETC.......................................................12
SECTION 3.4 CONTRIBUTION.................................................................13
SECTION 3.5 OTHER INDEMNIFICATION........................................................14
SECTION 3.6 NON-EXCLUSIVITY..............................................................14
SECTION 3.7 INDEMNIFICATION PAYMENTS.....................................................14
ARTICLE IV OTHER.......................................................................................14
SECTION 4.1 REMEDIES.....................................................................14
SECTION 4.2 AMENDMENTS, WAIVERS..........................................................14
SECTION 4.3 SUCCESSORS; ASSIGNS; TRANSFEREES.............................................14
SECTION 4.4 NOTICES......................................................................14
SECTION 4.5 INTEGRATION..................................................................15
SECTION 4.6 SEVERABILITY.................................................................16
SECTION 4.7 COUNTERPARTS.................................................................16
SECTION 4.8 LIMITED LIABILITY............................................................16
SECTION 4.9 RULE 144.....................................................................16
SECTION 4.10 OTHER REGISTRATION RIGHTS....................................................16
SECTION 4.11 REDOMICILIATION..............................................................17
SECTION 4.12 GOVERNING LAW................................................................17
SECTION 4.13 JURISDICTION.................................................................17
SECTION 4.14 MUTUAL WAIVER OF JURY TRIAL..................................................17
i
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT is dated April 6, 2004 and is by
and among Blackstone Capital Partners (Cayman) Ltd. 1, an exempted company
incorporated under the laws of the Cayman Islands ("BCP 1"), Blackstone Capital
Partners (Cayman) Ltd. 2, an exempted company incorporated under the laws of the
Cayman Islands ("BCP 2"), Blackstone Capital Partners (Cayman) Ltd. 3, an
exempted company incorporated under the laws of the Cayman Islands ("BCP 3"), BA
Capital Investors Sidecar Fund, L.P., a Cayman Islands limited partnership
("BACI"), and Xxxxxxxxxx Xxxxxxx Holdings Capital Partners (Cayman) IV Ltd., an
exempted company incorporated under the laws of the Cayman Islands (together
with any successor thereto, the "COMPANY").
BACKGROUND
1. In connection with the consummation of the voluntary public
takeover offer by a subsidiary of the Company for all of the outstanding
registered ordinary shares of Celanese AG, a German stock corporation, the
Blackstone Entities (as defined below) and BACI will purchase Ordinary Shares
(as defined below).
2. The Shareholders (as defined below) and the Company wish to
provide for certain matters relating to their holdings of Ordinary Shares.
The parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. As used in this Agreement:
"AFFILIATE" means, with respect to any Person, (i) any Person that
directly or indirectly controls, is controlled by or is under common
control with, such Person or (ii) any director, officer, member, partner
(including limited partners) or employee of such Person or any Person
specified in clause (i) above; PROVIDED that officers, directors or
employees of the Company will be deemed not to be Affiliates of the
Shareholders for purposes hereof solely by reason of being officers,
directors or employees of the Company.
"AGREEMENT" means this
Registration Rights Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"BACI" has the meaning set forth in the preamble.
"BCP 1" has the meaning set forth in the preamble.
"BCP 2" has the meaning set forth in the preamble.
"BCP 3" has the meaning set forth in the preamble.
"BLACKSTONE ENTITIES" means collectively BCP 1, BCP 2, BCP 3 and/or
any Affiliate of BCP 1, BCP 2, or BCP 3 that holds Registrable Securities.
"BUSINESS DAY" means a day other than a Saturday, Sunday, federal or
New York State holiday or other day on which commercial banks in
New York
City are authorized or required by law to close.
"COMPANY" has the meaning set forth in the preamble.
"DESIGNATED COUNSEL" means counsel to the selling Shareholders
participating in a registration pursuant hereto which counsel is selected
by the holders of a majority of the Registrable Securities being registered
in the relevant registration.
"HOLDBACK PERIOD" has the meaning set forth in Section 2.3.
"INITIAL PUBLIC OFFERING" means the closing of the first sale of
common equity or equivalent securities of the Company to the public
pursuant to an effective registration statement (other than a registration
statement on Form S-4 or S-8 or any similar or successor form) filed under
the Securities Act.
"INSPECTOR" has the meaning set forth in Section 2.4(k).
"ORDINARY SHARES" means the ordinary shares, par value $0.01 per
share, of the Company.
"ORDINARY SHARE EQUIVALENTS" means any warrants, options and rights or
securities convertible into, exchangeable or exercisable for Ordinary
Shares.
"PERSON" means any individual, corporation, limited liability company,
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other entity of any
nature whatsoever.
"REDOMICILIATION" has the meaning set forth in Section 4.11.
"REGISTRABLE SECURITIES" means (i) any Ordinary Shares, (ii) any
Ordinary Shares owned or to be acquired upon conversion, exercise or
exchange of Ordinary Share Equivalents and (iii) any shares owned or to be
acquired in respect of Ordinary Shares in connection with the
Redomiciliation or a recapitalization, merger, consolidation, exchange or
other reorganization of the Company (or any successor entity), in each case
now or hereafter owned by the Shareholders. As to any particular
Registrable Securities, once issued, such Registrable Securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale by the applicable Shareholder of such securities has
become effective under the Securities Act and such securities have been
disposed of in accordance with such registration statement, (ii) such
securities have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) such securities have
been otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer have been delivered by the
Company and subsequent disposition of such securities does not require
registration or
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qualification of such securities under the Securities Act or any state
securities or blue sky law then in force, (iv) such securities are sold to
a Person in a transaction in which rights under provisions of this
Agreement are not assigned in accordance with this Agreement, or (v) such
securities have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without
limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for any underwriters in
connection with blue sky qualifications of the Registrable Securities),
rating agency fees, printing expenses, messenger, telephone and delivery
expenses, the fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange or national
market system, fees and disbursements of counsel for the Company and all
independent certified public accountants (including the expenses of any
annual audit, special audit and "cold comfort" letters required by or
incident to such performance and compliance), securities laws liability
insurance (if the Company so desires (or if the underwriters of the
applicable offering so require)), the fees and disbursements of
underwriters (including, without limitation, all fees and expenses of any
"qualified independent underwriter" required by the rules of the NASD)
customarily paid by issuers or sellers of securities in public equity
offerings, the expenses customarily borne by the issuers of securities in a
"road show" presentation to potential investors, the fees and expenses of
any special experts retained by the Company in connection with such
registration, the fees and expenses of other persons retained by the
Company and all fees and expenses of any selling Shareholder participating
in a registration pursuant hereto (including fees and expenses of
Designated Counsel), other than underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of shares of Registrable
Securities by such selling Shareholder.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"SHAREHOLDERS" means each of the Blackstone Entities and BACI
collectively, and "SHAREHOLDER" means any one of the Shareholders.
"TRANSFEREE" means any Person to whom any Shareholder or any
Transferee thereof transfers Registrable Securities.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS; INTERPRETATION.
(a) The words "HEREOF," "HEREIN," and "HEREUNDER" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement, and section and subsection
references are to this Agreement unless otherwise specified.
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(b) The headings in this Agreement are included for convenience of
reference only and do not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c) The meanings given to terms defined herein are equally applicable to
both the singular and plural forms of such terms.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 INCIDENTAL REGISTRATION.
(a) If the Company proposes to register any of its securities under the
Securities Act (other than a registration statement on Form S-4 or S-8), whether
or not for its own account (and including any registration pursuant to a request
or demand right of any other Person), then the Company will each such time give
prompt written notice thereof to the Shareholders of their rights under this
Section 2.1, at least 15 Business Days prior to the anticipated filing date of
such registration statement. Such notice shall offer the Shareholders the
opportunity to include in such registration statement such number of Registrable
Securities as each Shareholder may request. Upon the written request of any
Shareholder made within 15 Business Days after the receipt of any such notice
from the Company, which request shall specify the number of Registrable
Securities intended to be disposed of by such Shareholder in such offering, the
Company will use its reasonable best efforts to effect the registration under
the Securities Act, as expeditiously as is possible, of all the Registrable
Securities which the Company has been so requested to register by the
Shareholders, subject to Section 2.1(b); PROVIDED that until the six-month
anniversary of the Initial Public Offering (or such shorter period as the
underwriters for such Initial Public Offering shall require of either the
Blackstone Entities or BACI), BACI shall not be permitted to include any
Registrable Securities in such registration unless any of the Blackstone
Entities include any Registrable Securities in such registration; PROVIDED,
FURTHER that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company or any other
holder of securities that initiated such registration (an "INITIATING HOLDER")
shall determine for any reason not to proceed with the proposed registration,
the Company may at its election (or the election of such Initiating Holder(s) as
applicable) give written notice of such determination to the Shareholders and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses incurred in connection therewith).
(b) If a registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of securities which the Company and the holders of the
Registrable Securities and any other Persons intend to include in such
registration exceeds the largest number of securities which can be sold in such
offering without having an adverse effect on such offering (including the price
at which such securities can be sold), then the number of such securities to be
included in such registration shall be reduced to such extent, and the Company
will include in such registration such maximum number of securities as follows
(i) FIRST, all of the securities the Company proposes to sell for its own
account, if any, PROVIDED that the registration of such securities was
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initiated by the Company with respect to securities intended to be registered
for sale for its own account; and (ii) SECOND, such number of Registrable
Securities requested to be included in such registration by the Shareholders
which, in the opinion of such managing underwriter can be sold without having
the adverse effect described above, which number of Registrable Securities shall
be allocated PRO RATA among such Shareholders on the basis of the relative
number of Registrable Securities then held by each such Shareholder; PROVIDED
that any such amount thereby allocated to each such Shareholder that exceeds
such Shareholder's request shall be reallocated among the Shareholders in like
manner, as applicable.
(c) The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities pursuant to this Section 2.1.
SECTION 2.2 DEMAND REGISTRATION.
(a) Upon the written request from time to time (a "REQUEST") of any of the
Blackstone Entities (a "DEMAND PARTY") that the Company effect the registration
under the Securities Act of all or part of such Demand Party's Registrable
Securities and specifying the amount and intended method of disposition thereof,
the Company will promptly give written notice of such requested registration to
the other Shareholders and, as expeditiously as possible, use its reasonable
best efforts to effect the registration under the Securities Act of:
(1) such Registrable Securities which the Company has been so
requested to register by the Demand Party; and
(2) the Registrable Securities of other Shareholders which the Company
has been requested to register by written request given to the Company
within 10 days after the giving of such written notice by the Company
(which request shall specify the amount and intended method of
disposition of such securities).
The Demand Party shall have the right to select the managing underwriter or
underwriters to administer the offerings covered by its Requests.
(b) If a requested registration pursuant to this Section 2.2 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration by the Shareholders exceeds the largest number of
securities which can be sold in such offering without having an adverse effect
on such offering (including the price at which the securities can be sold) then
the Company shall include in such registration such number of Registrable
Securities requested to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
described above, which number shall be allocated PRO RATA among all such
requesting Shareholders based on the relative number of Registrable Securities
then held by each such requesting Shareholder. In the event that the number of
Registrable Securities which the Shareholders have requested to include is less
than the number of securities which, in the opinion of the managing underwriter,
can be sold in such offering without having the adverse effect referred to
above, then the Company shall be entitled to include in such registration, for
its own account, up to that number of securities which, in the opinion of such
managing underwriter, can be sold without having the adverse result on the
offering referred to above.
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(c) If a requested registration pursuant to this Section 2.2 involves an
underwritten offering and the managing underwriter advises the Company that, in
its opinion, certain disclosure is of material importance to the success of such
proposed offering, then the Company shall cooperate with the managing
underwriter to provide such disclosure. The Company agrees to include in any
registration statement all information which, in the reasonable view of counsel
to the underwriters (if any) or Designated Counsel, is required to be included.
(d) The Demand Party shall be permitted to request that any registration
under this Section 2.2 be made under Rule 415 under the Securities Act (the
"SHELF REGISTRATION"). The Company shall use its commercially reasonable efforts
to effect such Shelf Registration and to keep it continuously effective until
such date on which there are no Registrable Securities covered by such
registration. During the period during which the Shelf Registration is
effective, the Company shall supplement or make amendments to the Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Demand Party or an underwriter of Registrable Securities to be sold pursuant
thereto, including to reflect any specific plan of distribution or method of
sale, and shall use its reasonable best efforts to have such supplements and
amendments declared effective, if required, as soon as practicable after filing.
(e) The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities pursuant to this Section 2.2.
SECTION 2.3 HOLDBACK.
(a) RESTRICTIONS ON SALE BY THE SHAREHOLDERS. In connection with any
underwritten public offering of securities of the Company, each Shareholder
agrees not to effect any sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, and not to
effect any sale or distribution of other securities of the Company or of any
securities convertible into or exchangeable or exercisable for any other
securities of the Company (in each case, other than as part of such underwritten
public offering) in each case, during the seven days prior to, and during such
period as the managing underwriter may require (not to exceed 90 days, or, in
the case of the Initial Public Offering, 180 days) (the period during which such
restriction applies, the "HOLDBACK PERIOD") beginning on, the closing date of
the sale of such securities pursuant to an effective registration statement,
except as part of such registration; PROVIDED, HOWEVER, that this provision
shall not apply if (i) such Shareholder owns, at the time of such registration
and throughout the Holdback Period, less than 2% of all outstanding Ordinary
Shares and (ii) such Shareholder is not participating in such public offering.
(b) RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS. In connection with any
underwritten public offering of securities of the Company, the Company agrees
(i) not to effect any sale or distribution, and to use its reasonable best
efforts to cause its directors and officers not to effect any sale or
distribution, of any Ordinary Shares, Ordinary Share Equivalents or other
securities of the Company or of any security convertible into or exchangeable or
exercisable for any Ordinary Shares, Ordinary Share Equivalents or other
securities of the Company (other than in connection with an employee stock
option or other benefit plans) during the seven days prior to, and during the
same period applicable to the Shareholders in connection with such offering
pursuant to Section 2.3(a) beginning on, the closing date of the sale of such
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securities pursuant to an effective registration statement, except as part of
such registration, and (ii) that any agreement entered into after the date of
this Agreement pursuant to which the Company issues or agrees to issue any
privately placed Ordinary Shares, Ordinary Share Equivalents or other equity
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
period referred to in the foregoing clause (i), except as part of such
registration, if permitted.
SECTION 2.4 OTHER REGISTRATION-RELATED MATTERS . If and whenever the
Company is required to use its reasonable best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company will, as expeditiously as possible:
(a) in the case of a registration as provided in this Agreement,
use its reasonable best efforts to prepare and file with the SEC within 45
days (or, in the case of a registration statement on Form S-3, within seven
days) after receipt of a request for registration with respect to such
Registrable Securities, a registration statement on any form for which the
Company then qualifies or which counsel for the Company shall deem
appropriate, and which form shall be available for the sale of the
Registrable Securities in accordance with the intended methods of
distribution thereof, and use its reasonable best efforts to cause such
registration statement to become and remain effective as promptly as
practicable, subject to the right of the Demand Party to defer the
Company's request for the acceleration of effectiveness of any such
registration statement as may be necessary to accommodate the anticipated
timetable for such offering; PROVIDED that, before filing with the SEC a
registration statement or prospectus or any amendments or supplements
thereto, the Company will (i) furnish to the selling Shareholders copies of
the form of preliminary prospectus proposed to be filed and furnish to
counsel of the selling Shareholders copies of all such documents proposed
to be filed, which documents will be subject to the reasonable review of
such counsel and shall not be filed without the approval (not to be
unreasonably withheld) of the Designated Counsel and (ii) notify the
selling Shareholders of any stop order issued or threatened by the SEC and
take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered;
(b) 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 or such shorter period which will
terminate when all Registrable Securities covered by such registration
statement have been sold (or in the case of a Shelf Registration, until the
end of such latter period), and 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) promptly furnish to each Shareholder and each underwriter, if
any, of Registrable Securities covered by such registration statement such
number of copies of such registration statement, each amendment and
supplement thereto (in each case including all financial statements,
schedules and exhibits thereto), the prospectus
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included in such registration statement (including each preliminary
prospectus) (each prepared in conformity with the requirements of the
Securities Act), copies of any correspondence with the SEC or its staff
relating to the registration statement and such other documents as any
Shareholder or underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under the securities or blue sky laws of such
jurisdictions as any selling Shareholder or each underwriter, if any,
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Shareholder and each
underwriter, if any, to consummate the disposition in such jurisdictions of
the Registrable Securities; PROVIDED that the Company will 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 paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
(e) use its reasonable 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 seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(f) promptly notify the selling Shareholders at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event which comes to the Company's
attention if as a result of such event the prospectus included in such
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
promptly prepare and furnish to the selling Shareholders 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;
(g) if requested by the managing underwriter or any selling
Shareholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
such Shareholder reasonably requests be included therein relating to the
plan of distribution with respect to such Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being sold to such underwriters, the purchase price
being paid therefor by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon
as notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment;
(h) cooperate with the selling Shareholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the
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Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be sold in such denominations and
registered in such names as the managing underwriters or the selling
Shareholders may request prior to any sale of the Registrable Securities to
the underwriters;
(i) use its reasonable best efforts to cause all such Registrable
Securities to be listed on a national securities exchange or quotation
system, and on each securities exchange or quotation system on which
similar securities issued by the Company are then listed, and enter into
such customary agreements including a listing application and
indemnification agreement in customary form, PROVIDED that the applicable
listing requirements are satisfied, and to provide a transfer agent and
registrar for such Registrable Securities covered by such registration
statement no later than the effective date of such registration statement;
(j) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the sellers
of a majority of the Registrable Securities covered by such registration
statement or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities,
including customary indemnification provisions and, in connection with any
shelf registration, supporting Shareholders' efforts to execute block
trades with institutional buyers, if applicable, and, in connection with
any underwritten offering, making appropriate members of senior management
of the Company available (subject to consulting with them in advance as to
schedule) for customary participation in in-person conferences or "road
show" presentations to potential investors;
(k) make available for inspection by the selling Shareholders, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent (including
Designated Counsel) retained by Shareholders holding a majority of the
Registrable Securities covered by the applicable registration statement or
any underwriter (each an "INSPECTOR"), all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, if any, as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and
its subsidiaries' officers, directors and employees to supply all
information and respond to all inquiries reasonably requested by any such
selling Shareholder, underwriter, or Inspector in connection with such
registration statement;
(l) use its reasonable best efforts to obtain (i) an opinion or
opinions of counsel to the Company and (ii) a "cold comfort" letter or
letters from the Company's independent public accountants, in each case in
customary form and covering such matters of the type customarily covered by
opinions and "cold comfort" letters as the Shareholders holding a majority
of the Registrable Securities covered by the applicable registration
statement or the managing underwriter requests;
(m) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, within the required time periods, an earnings statement
covering a period of at least twelve months,
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beginning with the first month after the effective date of the registration
statement (as the term "effective date" is defined in Rule 158(c) under the
Securities Act), which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder or any
successor provisions thereto;
(n) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement), provide copies of
such document to Designated Counsel and counsel to the managing
underwriters, if any, make the Company's representatives available for
discussion of such document and give due consideration to changes in such
document prior to the filing thereof as Designated Counsel may reasonably
request;
(o) promptly notify the selling Shareholders, Designated Counsel to
the selling Shareholders and counsel to the managing underwriter, (i) when
the registration statement, or any post-effective amendment to the
registration statement, shall have become effective, or any supplement to
the prospectus or any amendment to the prospectus shall have been filed,
(ii) of the receipt of any comments from the SEC, (iii) of any request of
the SEC to amend the registration statement or amend or supplement the
prospectus or for additional information, and (iv) of the issuance by the
SEC of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes; and
(p) cooperate with the selling Shareholders and their Designated
Counsel and each underwriter or agent participating in the disposition of
such Registrable Securities and their respective counsel in connection with
any filings required to be made with any securities exchange and/or the
NASD.
The Company may require any Shareholder that is selling Registrable
Securities pursuant to this Agreement to furnish to the Company such
information pertinent to the disclosure requirements relating to the
registration and distribution of such Registrable Securities regarding such
Shareholder, the Registrable Securities held by such Shareholder and the
intended method of disposition thereof as the Company shall reasonably
request in connection with such registration.
Each Shareholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 2.4(f)
hereof, such Shareholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Shareholder receives the copies of the prospectus
supplement or amendment contemplated by Section 2.4(f) hereof, and, if so
directed by the Company, such Shareholder will deliver to the Company all
copies, other than permanent file copies, then in such Shareholder's possession,
of the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
period mentioned in Section 2.4(b) hereof shall be extended by the greater of
(i) 30 days or (ii) the number of days during the period from and including the
date of the giving of such notice pursuant to Section 2.4(f) hereof to and
including the date when such Shareholder
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shall have received the copies of the prospectus supplement or amendment
contemplated by Section 2.4(f) hereof.
ARTICLE III
INDEMNIFICATION
SECTION 3.1 INDEMNIFICATION BY THE COMPANY . In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 2.1 or Section 2.2 hereof, the Company will, and it hereby does,
indemnify and hold harmless, to the full extent permitted by law, each
Shareholder, its directors and officers, employees, shareholders, general
partners, limited partners, members, advisory directors, managing directors (and
directors, officers, stockholders, general partners, limited partners, members,
advisory directors, managing directors and controlling persons thereof)
(collectively, "RELATED PERSONS"), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls, is controlled by or is under common control with any
Shareholder or any such underwriter (collectively, the "SHAREHOLDER INDEMNIFIED
PARTIES") within the meaning of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including
without limitation, reasonable attorneys' fees and any and all reasonable
expenses incurred investigating, preparing or defending against any litigation,
commenced or threatened, or any claim, and any and all amounts paid in any
settlement of any such claim or litigation) to which such Shareholder
Indemnified Party may become subject under the Securities Act, state securities
or blue sky laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment 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 not misleading (in
the case of a prospectus, in light of the circumstances under which they are
made), and the Company will reimburse each Shareholder Indemnified Party for any
legal or any other expenses reasonably incurred by it as such expenses are
incurred in connection with investigating or defending such loss, claim,
liability, action or proceeding; PROVIDED that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement thereto
or in any such preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by such Shareholder
or underwriter specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Shareholder Indemnified Party and
shall survive the transfer of such securities by any Shareholder or underwriter.
SECTION 3.2 INDEMNIFICATION BY THE SHAREHOLDERS . The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 2.1 or Section 2.2, that
the Company shall have received an undertaking reasonably satisfactory to it
from the applicable Selling Shareholder or any prospective
-11-
underwriter to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 3.1) the Company, all other prospective selling
Shareholders, any prospective underwriter, and their respective Related Persons
and controlling Persons (collectively, the "COMPANY INDEMNIFIED PARTIES"), with
respect to losses, claims, damages, liabilities and expenses described in the
indemnity contained in Section 3.1, insofar as such losses, claims, damages,
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment 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, in light of the
circumstances under which they are made) not misleading, and the applicable
Shareholder and any underwriter will reimburse each Company Indemnified Party
for any legal or any other expenses reasonably incurred by it as such expenses
are incurred in connection with investigating or defending such loss, claim,
liability, action or proceeding; provided that any such Shareholder and any such
underwriter shall only be liable in any such case if any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or amendment or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information with respect to such
Shareholder or underwriter furnished to the Company by such Shareholder or
underwriter specifically stating that it is for use in the preparation thereof.
Such indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of any Company Indemnified Party. In no event
shall the liability of any selling Shareholders of Registrable Securities
pursuant to this Section 3.2 be greater in amount than the dollar amount of the
net proceeds actually received by such Shareholder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
SECTION 3.3 NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Article III, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, promptly give
written notice to the latter of the commencement of such action; PROVIDED that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding sections
of this Article III, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties exists or the indemnifying party is not adequately
defending such action or proceeding. In such event, the indemnified party shall
be entitled to retain its own counsel to jointly participate in such defense,
PROVIDED that an indemnifying party
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will not be obligated to pay the fees and expenses of more than one such counsel
(together with appropriate local 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, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels (together with the fees of
local counsel). An indemnifying party will not be subject to any liability for
any settlement made without its consent (which consent shall not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or enter
into any settlement of any pending or threatened proceeding involving an
indemnified party which (i) does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation, or (ii) involves the
imposition of equitable remedies or the imposition of any non-financial
obligations on such indemnified party.
SECTION 3.4 CONTRIBUTION . If the indemnification provided for in this
Article III is unavailable to an indemnified party under Section 3.1 or Section
3.2 hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other, and the relative fault of the indemnifying party on the one hand and
of the indemnified party on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party on the one hand and of the indemnified party on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact has been made by, or relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 3.1 and Section 3.2, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and the Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 3.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 3.4, no Shareholder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by such Shareholder and
distributed to the public were offered to the public exceeds the amount of any
damages which such Shareholder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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.
-13-
SECTION 3.5 OTHER INDEMNIFICATION. Indemnification similar to that
specified in Section 3.1 and Section 3.2 (with appropriate modifications) shall
be given by the Company and each Shareholder with respect to any required
registration or other qualification of securities under any law or with any
governmental authority other than as required by the Securities Act.
SECTION 3.6 NON-EXCLUSIVITY. The obligations of the parties under this
Article III shall be in addition to any liability which any party may otherwise
have to any other party.
SECTION 3.7 INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by Section 3.1, Section 3.2 and Section 3.4 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
ARTICLE IV
OTHER
SECTION 4.1 REMEDIES. The Company and each Shareholder acknowledge and
agree that in the event of any breach of this Agreement by any of them, the
Shareholders and the Company would be irreparably harmed and could not be made
whole by monetary damages. Each party accordingly agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate and
that the parties, in addition to any other remedy to which they may be entitled
at law or in equity, shall be entitled to compel specific performance of this
Agreement.
SECTION 4.2 AMENDMENTS, WAIVERS. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to or departures from the
provisions hereof may be given unless consented to in writing by the Company and
the Shareholders holding a majority of the Registrable Shares held by all such
Shareholders, PROVIDED that no such amendment shall adversely affect the rights
of a Shareholder disproportionately to other Shareholders without the written
consent of such Shareholder, and PROVIDED, FURTHER, that no such amendment shall
adversely affect BACI in any material respect without the written consent of
BACI.
SECTION 4.3 SUCCESSORS; ASSIGNS; TRANSFEREES. The provisions of this
Agreement shall be binding upon and accrue to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. In addition, the
rights of any particular Shareholder under this Agreement may be assigned by
such Shareholder to any transferee of more than 5% of the outstanding Ordinary
Shares, provided such transfer is made in accordance with the Shareholders'
Agreement and not in violation of any other agreement to which such Shareholder
is a party.
SECTION 4.4 NOTICES. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto shall
be in writing, shall be and shall be deemed given when (i) delivered personally,
(ii) five business days after being sent by
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certified or registered mail, postage prepaid, return receipt requested, (iii)
one business day after being sent by Federal Express or other nationally
recognized overnight courier, or (iv) if transmitted by facsimile, if confirmed
within 24 hours thereafter a signed original sent in the manner provided in
clause (i), (ii) or (iii) to the parties at the following addresses (or at such
other address for a party as shall be specified by notice from such party):
if to the Company or any Blackstone Entity, to such Person at:
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
if to BACI:
BA Capital Investors Sidecar Fund, L.P.
c/o Banc of America Capital Investors, L.P.
Banc of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: J. Xxxxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Fax: (000) 000-0000
SECTION 4.5 INTEGRATION. This Agreement, and the documents referred to
herein, or delivered pursuant hereto, contain the entire understanding of the
parties with respect to the subject matter hereof. There are no agreements,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof and thereof other than those expressly set forth herein
and therein. This Agreement supersedes all other prior agreements and
understandings between the parties with respect to such subject matter.
-15-
SECTION 4.6 SEVERABILITY. If one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
SECTION 4.7 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which will be deemed to be an original and all of which
together will be deemed to be one and the same instrument.
SECTION 4.8 LIMITED LIABILITY. Notwithstanding any other provision of
this Agreement, neither the members, general partners, limited partners or
managing directors, or any directors or officers of any members, general or
limited partner, advisory director, nor any future members, general partners,
limited partners, advisory directors, or managing directors, if any, of any
Shareholder shall have any personal liability for performance of any obligation
of such Shareholder under this Agreement in excess of the respective capital
contributions of such members, general partners, limited partners, advisory
directors or managing directors to such Shareholder.
SECTION 4.9 RULE 144. If the Company is subject to the requirements of
Section 13, 14 or 15(d) of the Exchange Act, the Company covenants that it will
file any reports required to be filed by it under the Securities Act and the
Exchange Act (or, if the Company is subject to the requirements of Section 13,
14 or 15(d) of the Exchange Act but is not required to file such reports, it
will, upon the request of any Shareholder, make publicly available such
information) and it will take such further action as any Shareholder may
reasonably request, so as to enable such Shareholder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Shareholder, the Company
will deliver to such Shareholder a written statement as to whether it has
complied with such requirements.
SECTION 4.10 OTHER REGISTRATION RIGHTS.
(a) The Company covenants that it will not grant any right of registration
(whether demand or incidental) under the Securities Act relating to any Ordinary
Shares, Ordinary Share Equivalents or any of its other securities to any Person
unless the Shareholders shall be entitled to have included in any registration
effected (i) pursuant to Section 2.2 hereof, all Registrable Securities
requested by it to be so included prior to the inclusion of any securities
requested to be registered by the Persons entitled to any such other
registration rights pursuant to any provision providing registration rights
comparable to those contained in Section 2.1 hereof and (ii) pursuant to Section
2.1 hereof, all Registrable Securities requested by such Shareholder to be so
included prior to the inclusion of any securities requested to be registered by
the Persons entitled to any such other registration rights pursuant to any
provision providing registration rights comparable to those contained in Section
2.1 hereof; it being understood that as among the
-16-
Shareholders, the right and the priority of participation in any such
registration shall be as provided in this Agreement.
(b) If the Company at any time grants to any other holders of Ordinary
Shares, Ordinary Share Equivalents or other securities of the Company any rights
to request the Company to effect the registration (whether demand or incidental)
under the Securities Act of any such securities on any terms more favorable to
such holders than the terms set forth in this Agreement, the terms of this
Agreement shall, at the request of Shareholders holding a majority of the
Registrable Securities held by all Shareholders, be deemed amended or
supplemented to the extent necessary to provide the Shareholders such more
favorable rights and benefits.
(c) The Company covenants that it will not enter into, or cause or permit
any of its subsidiaries to enter into, any agreement which conflicts with or
limits or prohibits the exercise of the rights granted to the Shareholders in
this Agreement.
(d) Each of the Blackstone Entities and the Company agrees that, in the
event that any Blackstone Entity or any of its Affiliates is granted any right
of registration (whether demand or incidental) by any subsidiary of the Company
or any entity through which any Blackstone Entity or any of its Affiliates
hereafter holds its interest in the Company, it shall take all actions available
to it to cause the entity granting such rights to grant to BACI rights
comparable to those held by BACI pursuant to this Agreement.
SECTION 4.11 REDOMICILIATION. It is the intention of the parties to
effect a redomiciliation of the Company to Delaware (the "REDOMICILIATION") at a
time and in a manner determined by the Company. Following the Redomiciliation,
this Agreement shall apply, MUTATIS MUTANDIS, to the Company as redomiciled in
Delaware and to the common stock of the Company held by the Shareholders.
SECTION 4.12 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
New York.
SECTION 4.13 JURISDICTION. The courts of the State of
New York in
New
York County and the United States District Court for the Southern District of
New York shall have jurisdiction over the parties with respect to any dispute or
controversy between them arising under or in connection with this agreement and,
by execution and delivery of this agreement, each of the parties to this
Agreement submits to the exclusive jurisdiction of those courts, including but
not limited to the IN PERSONAM and subject matter jurisdiction of those courts,
waives any objections to such jurisdiction on the grounds of venue or FORUM NON
CONVENIENS, the absence of IN PERSONAM or subject matter jurisdiction and any
similar grounds, consents to service of process by mail (in accordance with the
notice provisions of this Agreement) or any other manner permitted by law, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement.
SECTION 4.14 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
XXXXXXXXXX XXXXXXX HOLDINGS
CAPITAL PARTNERS (CAYMAN) IV LTD.
By: /s/ Xxxxx Xxx
-------------------------
Name: Xxxxx Xxx
Title: Authorized Person
BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 1
By: /s/ Xxxxx Xxx
-------------------------
Name: Xxxxx Xxx
Title: Authorized Person
BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 2
By: /s/ Xxxxx Xxx
-------------------------
Name: Xxxxx Xxx
Title: Authorized Person
BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 3
By: /s/ Xxxxx Xxx
-------------------------
Name: Xxxxx Xxx
Title: Authorized Person
BA CAPITAL INVESTORS SIDECAR FUND,
L.P.
By: BA Capital Management Sidecar, L.P.
Its: General Partner
By: BACM I Sidecar GP Limited
Its: General Partner
By: /s/ Xxxx X. Xxxxx
---------------------
Name: Xxxx X. Xxxxx
Title: Authorized Person
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