Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
by and among
MINDRAY MEDICAL INTERNATIONAL LIMITED
and
GS CAPITAL PARTNERS V FUND, L.P.,
GS CAPITAL PARTNERS V OFFSHORE FUND, L.P.,
GS CAPITAL PARTNERS V GmbH & Co. KG, and
GS CAPITAL PARTNERS V INSTITUTIONAL, L.P.,
Dated as of September 5, 2006
TABLE OF CONTENTS
Page
Section 1. Certain Definitions...............................................1
Section 2. Registration Rights...............................................5
2.1. Demand Registrations........................................5
2.2. Piggyback Registrations.....................................8
2.3. Allocation of Securities Included in Registration
Statement..................................................10
2.4. Registration Procedures....................................12
2.5. Registration Expenses......................................18
2.6. Certain Limitations on Registration Rights.................18
2.7. Limitations on Sale or Distribution of Other Securities....19
2.8. No Required Sale...........................................19
2.9. Indemnification............................................19
Section 3. Underwritten Offerings...........................................23
3.1. Requested Underwritten Offerings...........................23
3.2. Piggyback Underwritten Offerings...........................23
Section 4. General..........................................................24
4.1. Adjustments Affecting Registrable Securities...............24
4.2. Rule 144 and Rule 144A.....................................24
4.3. Nominees for Beneficial Owners.............................25
4.4. Amendments and Waivers.....................................25
4.5. Notices....................................................25
4.6. Successors and Assigns.....................................26
4.7. Entire Agreement...........................................26
4.8. Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial......................................................26
4.9. Headings...................................................27
4.10. Counterparts..............................................27
4.11. Severability..............................................27
4.12. Specific Performance......................................27
4.13. Further Assurances........................................27
4.14. No Inconsistent Agreements................................27
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
September 5, 2006, by and among Mindray Medical International Limited, a private
limited company incorporated in the Cayman Islands (the "Company"), and GS
Capital Partners V Fund, L.P., a Delaware limited partnership ("GSCP"), GS
Capital Partners V Offshore Fund, L.P., a Cayman Islands limited partnership
("GSCP Offshore"), GS Capital Partners V GmbH & Co. KG, a private limited
company organized under the laws of Germany ("GSCP Germany"), and GS Capital
Partners V Institutional, L.P., a Delaware limited partnership ("GSCP
Institutional" and, collectively with GSCP, GSCP Offshore, and GSCP Germany, the
"GSCP Parties").
W I T N E S S E T H :
---------------------
WHEREAS, the GSCP Parties and the Company have entered into a Subscription
and Share Purchase Agreement dated July 6, 2005 (as such agreement may be
amended, supplemented or modified from time to time, the "Subscription and Share
Purchase Agreement");
WHEREAS, the GSCP Parties and the Company desire to provide for certain
arrangements with respect to the registration of the ordinary shares in the
capital of the Company under the Securities Act (as defined below).
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
Section 1. Certain Definitions. As used herein, the following terms shall
have the following meanings:
"Additional Piggyback Rights" has the meaning ascribed to such term in
Section 2.2(b).
"Affiliate" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) with respect to any
individual, the spouse, parent, sibling, child, step-child, grandchild, niece or
nephew of such Person, or the spouse thereof and any trust, limited liability
company, limited partnership or private foundation for such Person or for the
benefit of any of the foregoing; provided, however, that, for purposes hereof,
(a) each GSCP Party shall be deemed to be an Affiliate of every other GSCP Party
and (b) neither the Company nor any Person controlled by the Company shall be
deemed to be an Affiliate of any Holder.
"Agreement" means this Registration Rights Agreement, as this agreement
may be amended, modified, supplemented or restated from time to time after the
date hereof.
"Board" means the board of directors of the Company.
"Business Day" shall mean a day on which licensed banks generally are open
for business in Hong Kong.
"Claims" has the meaning ascribed to such term in Section 2.9(a).
"Company" has the meaning ascribed to such term in the Preamble to this
Agreement.
"Convertible Redeemable Preference Shares" means the convertible
redeemable preference shares of HK$0.01 each in the capital of the Company
"Demand Exercise Notice" has the meaning ascribed to such term in Section
2.1(a)(i).
"Demand Registration" has the meaning ascribed to such term in Section
2.1(a)(i).
"Demand Registration Request" has the meaning ascribed to such term in
Section 2.1(a)(i).
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC issued under such Act, as they
may from time to time be in effect.
"Expenses" means any and all fees and expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation: (i)
SEC, stock exchange or NASD registration and filing fees and all listing fees
and fees with respect to the inclusion of securities on the New York Stock
Exchange or on any other securities market on which the Ordinary Shares of the
Company are listed or quoted, (ii) fees and expenses of compliance with state
securities or "blue sky" laws and in connection with the preparation of a "blue
sky" survey, including, without limitation, reasonable fees and expenses of
outside "blue sky" counsel, (iii) printing and copying expenses, (iv) messenger
and delivery expenses, (v) expenses incurred in connection with any road show,
(vi) fees and disbursements of counsel for the Company, (vii) with respect to
each registration or underwritten offering, the fees and disbursements of
counsel for the Holders (selected by the Holders owning a majority in interest
of the Registrable Securities being registered or sold), (viii) fees and
disbursements of all independent public accountants (including the expenses of
any audit and/or "cold comfort" letter and updates thereof) and fees and
expenses of other Persons, including special experts, retained by the Company,
(ix) fees and expenses payable to a Qualified Independent Underwriter and (x)
any other fees and disbursements of underwriters, if any, customarily paid by
issuers or sellers of securities.
"GSCP" has the meaning ascribed to such term in the Preamble to this
Agreement.
"GSCP Germany" has the meaning ascribed to such term in the Preamble to
this Agreement.
"GSCP Institutional" has the meaning ascribed to such term in the Preamble
to this Agreement.
"GSCP Offshore" has the meaning ascribed to such term in the Preamble to
this Agreement.
"GSCP Parties" has the meaning ascribed to such term in the Preamble to
this Agreement.
"Holder" or "Holders" means any Person who is a signatory to this
Agreement
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or any transferee of Registrable Securities to whom any Person who is a
signatory to this Agreement assigns its rights hereunder in a Permitted Transfer
of Registrable Securities, provided that such transferee has agreed in writing
to be bound by this Agreement in respect of such Registrable Securities.
"Initiating Holders" has the meaning ascribed to such term in Section
2.1(a)(i).
"IPO" means the initial bona fide underwritten public offering of Ordinary
Shares (and/or depositary receipts representing Ordinary Shares) pursuant to an
effective registration statement filed under the Securities Act.
"Litigation" means any action, proceeding or investigation in any court or
before any governmental authority.
"Majority Participating Holders" means Participating Holders holding more
than 50% of the Registrable Securities proposed to be included in any offering
of Registrable Securities by such Participating Holders pursuant to Section 2.1
hereto.
"Major Shareholders" means each of Xu Hang, Li Xiting, Xxxxx Xxxxxx and
Dragon City International Investment Limited and "Major Shareholder" means any
one of them.
"Manager" has the meaning ascribed to such term in Section 2.1(c).
"NASD" means the National Association of Securities Dealers, Inc.
"Ordinary Shares" means the Company's ordinary shares as from time to time
designated in its Articles of Association and any and all securities of any kind
whatsoever which may be issued after the date hereof in respect of, or in
exchange for, such ordinary shares of the Company pursuant to a merger,
consolidation, stock split, stock dividend or recapitalization of the Company or
otherwise.
"Participating Holders" has the meaning ascribed to such term in Section
2.1(a)(ii).
"Partner Distribution" has the meaning ascribed to such term in Section
2.1(a)(iii).
"Permitted Transfer" means any transfer of Registrable Securities ;
(i) to a person who is to hold such Registrable Securities transferred,
as a nominee on behalf of the transferor (but excludes any transfer
by such nominees and a nominee for the purposes of this definition
excludes any entity that is a member of a GSCP Party);
(ii) by a nominee to the beneficial owner of such Registrable Securities
to another nominee of the same beneficial owner; or
(iii) to an Affiliate;
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"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Piggyback Shares" has the meaning ascribed to such term in Section
2.3(a)(iii).
"Postponement Period" has the meaning ascribed to such term in Section
2.1(b).
"Qualified Independent Underwriter" means a "qualified independent
underwriter" within the meaning of NASD Conduct Rule 2720.
"Registrable Securities" means (a) any Ordinary Shares issued or issuable
upon the conversion or exercise of any preference shares (including, without
limitation, the Convertible Redeemable Preference Shares), warrants or other
securities acquired by any Holder pursuant to the Subscription and Share
Purchase Agreement, (b) any other Ordinary Shares issued or issuable in respect
of such Ordinary Shares, preference shares (including, without limitation, the
Convertible Redeemable Preference Shares), warrants or other securities (because
of share splits, stock dividends, reclassifications, recapitalizations, merger,
reorganization or similar events), (c) any Ordinary Shares issued or issuable to
the Holders as a result of the exercise by them of any statutory or contractual
pre-emptive right, (d) any Ordinary Shares issued or issuable, directly or
indirectly, in exchange for or with respect to the securities referenced in
clauses (a) through (c) above by way of stock dividend, stock split or
combination of shares or in connection with a reclassification,
recapitalization, merger, share exchange, consolidation or other reorganization,
(e) any Ordinary Shares issued or issuable, directly or indirectly, in exchange
for or with respect to the securities issued in replacement of or exchange for
any securities described in clauses (a) through (d) above, or (i) if applicable,
depositary shares evidencing Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (A) a registration statement with respect to the sale of such securities
shall have been declared effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement, or
(B) such securities shall have been sold (other than in a privately negotiated
sale) in compliance with the requirements of Rule 144 under the Securities Act,
as such Rule 144 may be amended (or any successor provision thereto).
"Rule 144" and "Rule 144A" have the meaning given in Section 4.2.
"SEC" means the United States Securities and Exchange Commission or such
other federal agency which at such time administers the Securities Act.
"Section 2.3(a) Sale Number" has the meaning ascribed to such term in
Section 2.3(a).
"Section 2.3(b) Sale Number" has the meaning ascribed to such term in
Section 2.3(b).
"Section 2.3(c) Sale Number" has the meaning ascribed to such term in
Section 2.3(c).
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC issued under such Act, as they
may from time to time be in effect.
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"Share Equivalents" means, with respect to any Person, securities
convertible into, or exchangeable or exercisable for, shares of capital stock or
other equity securities of such Person (including, without limitation, any note
or debt security convertible into or exchangeable for shares of capital stock or
other equity securities of such Person).
"Shelf Registrable Securities" has the meaning ascribed to such term in
Section 2.1(e).
"Shelf Registration Statement" has the meaning ascribed to such term in
Section 2.1(e).
"Shelf Underwriting" has the meaning ascribed to such term in Section
2.1(e).
"Shelf Underwriting Notice" has the meaning ascribed to such term in
Section 2.1(e).
"Shelf Underwriting Request" has the meaning ascribed to such term in
Section 2.1(e).
"Subscription and Share Purchase Agreement" has the meaning ascribed to
such term in the Preamble to this Agreement.
"Valid Business Reason" has the meaning ascribed to such term in Section
2.1(b).
"WKSI" has the meaning ascribed to such term in Section 2.4.
Section 2. Registration Rights.
2.1. Demand Registrations.
(a) (i) Subject to Sections 2.1(b) and 2.3, at any time and from
time to time after one hundred eighty (180) days following an IPO, each of the
GSCP Parties shall have the right to require the Company to file registration
statements under the Securities Act covering all or any part of its and its
Affiliates' Registrable Securities by delivering a written request therefor to
the Company specifying the number of Registrable Securities to be included in
such registration and the intended method of distribution thereof. Any such
request by any Holder pursuant to this Section 2.1(a)(i) is referred to herein
as a "Demand Registration Request," and the registration so requested is
referred to herein as a "Demand Registration" (with respect to any Demand
Registration, the Holder(s) making such demand for registration being referred
to as the "Initiating Holders"). Any Demand Registration Request may request
that the Company register Registrable Securities on an appropriate form,
including a shelf registration statement, and, if the Company is a well-known
seasoned issuer, an automatic shelf registration statement. As promptly as
practicable, but no later than five (5) Business Days after receipt of a Demand
Registration Request, the Company shall give written notice (the "Demand
Exercise Notice") of such Demand Registration Request to all Holders of record
of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in
a Demand Registration (x) the Registrable Securities of the Initiating Holders
and (y) the Registrable Securities of any other Holder of Registrable Securities
which shall have made a written request to the Company for inclusion in such
registration (together with the Initiating Holders, the "Participating Holders")
(which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Participating Holder) within twenty (20)
Business
5
Days after the receipt of the Demand Exercise Notice (or ten (10) Business Days
if, at the request of the Initiating Holders, the Company states in such written
notice or gives telephonic notice to all Holders, with written confirmation to
follow promptly thereafter, that such registration will be on a Form S-3 or F-3,
as appropriate).
(iii) The Company shall, as expeditiously as possible (and in any
event within forty-five (45) days after the receipt of a Demand Registration
Request), but subject to Section 2.1(b), use its reasonable best efforts to (x)
effect such registration under the Securities Act (including, without
limitation, by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested and if the Company is then eligible to use such a
registration) of the Registrable Securities which the Company has been so
requested to register, for distribution in accordance with such intended method
of distribution, including a distribution to, and resale by, the members or
partners of a Holder (a "Partner Distribution") and (y) if requested by the
Initiating Holders, obtain acceleration of the effective date of the
registration statement relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the
Company shall, at the request of any Holder seeking to effect a Partner
Distribution, include all disclosure and language necessary to effect such
Partner Distribution.
(b) Notwithstanding anything to the contrary in Section 2.1(a), the
Demand Registration rights granted in Section 2.1(a) are subject to the
following limitations:
(i) The Company shall not be required to effect in any 12 month
period more than one (1) Demand Registrations on Form S-1 or Form F-1, as
appropriate, and not more than one (1) Demand Registration on Form S-3 or F-3,
as appropriate, in each case at the request of the Holders.
(ii) Each registration in respect of a Demand Registration Request
made by any Holder must include, in the aggregate (based on the Registrable
Securities included in such registration by all Holders participating in such
registration), Registrable Securities having an aggregate market value of at
least $40 million as of the date of the relevant Demand Registration Request.
(iii) If the Board, in its good faith judgment, as evidenced by a
written resolution of the Board of Directors or by a letter duly executed by the
Chairman of the Board, determines that any registration of Registrable
Securities should not be made or continued because filing a registration
statement would materially impede, delay or interfere with any material pending
or proposed financing, acquisition, corporate reorganization or other similar
transaction involving the Company for which the Board has authorized
negotiations; materially adversely impair the consummation of any pending or
proposed material offering or sale of any class of securities by the Company; or
require disclosure of material non-public information that, if disclosed at such
time, would be materially harmful to the interests of the Company and its
stockholders (each, a "Valid Business Reason"), (x) the Company may postpone
filing a registration statement relating to a Demand Registration Request until
five (5) Business Days after such Valid Business Reason no longer exists, but in
no event for more than six (6) months after the date the Board determines a
Valid Business Reason exists (however, upon the expiration of three (3) months
after the date
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the Board determines that a Valid Business Reason exists, the Board must in its
good faith judgment, as evidenced by a written resolution of the Board of
Directors or by a letter duly executed by the Chairman of the Board, determine
that the same Valid Business Reason still exists) and (y) in case a registration
statement has been filed relating to a Demand Registration Request, if the Valid
Business Reason has not resulted from actions taken by the Company, the Company
may, to the extent determined in the good faith judgment of the Board to be
reasonably necessary to avoid interference with any of the transactions
described above, cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement until five (5) Business Days after such Valid Business
Reason no longer exists, but in no event for more than six (6) months after the
date the Board determines a Valid Business Reason exists (however, upon the
expiration of three (3) months after the date the Board determines that a Valid
Business Reason exists, the Board must in its good faith judgment, as evidenced
by a written resolution of the Board of Directors or by a letter duly executed
by the Chairman of the Board, determine that the same Valid Business Reason
still exists) (such period of postponement or withdrawal under this clause
(iii), the "Postponement Period"). The Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof; provided, however,
the Company shall not be permitted to postpone or withdraw a registration
statement after the expiration of any Postponement Period until nine (9) months
after the expiration of such Postponement Period.
If the Company shall give any notice of postponement or withdrawal of any
registration statement pursuant to clause (iii) above, the Company shall not,
during the period of postponement or withdrawal, register any of its Ordinary
Shares or other securities, other than pursuant to a registration statement on
Form X-0, X-0 or S-8 (or an equivalent registration form then in effect). Each
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company that the Company has determined to withdraw, terminate or postpone
amending or supplementing any registration statement pursuant to clause (iii)
above, such Holder will discontinue its disposition of Registrable Securities
pursuant to such Registration Statement. If the Company shall have withdrawn or
prematurely terminated a registration statement filed under Section 2.1(a)(i)
(whether pursuant to clause (iii) above or as a result of any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court), the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement until the Company
shall have filed a new registration statement covering the Registrable
Securities covered by the withdrawn or terminated registration statement and
such registration statement shall have been declared effective and shall not
have been withdrawn. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, not later than five
(5) Business Days after the Valid Business Reason that caused such withdrawal or
postponement no longer exists (but in no event later than three (3) months after
the date of the postponement or withdrawal), use its reasonable best efforts to
effect the registration under the Securities Act of the Registrable Securities
covered by the withdrawn or postponed registration statement in accordance with
this Section 2.1 (unless the Initiating Holders shall have withdrawn such
request, in which case the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement), and such
registration shall not be withdrawn or postponed pursuant to clause (iii) of
Section 2.1(b) above.
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(c) In connection with any Demand Registration, the Initiating Holders
shall have the right to designate the lead managing underwriter (any lead
managing underwriter for the purposes of this Agreement, the "Manager") in
connection with any underwritten offering pursuant to such registration and each
other managing underwriter for any such underwritten offering, in each case
after consultation with the Company.
(d) The obligation to effect a Demand Registration as described in
Section 2.1 above shall be deemed satisfied only when a registration statement
covering the applicable Registrable Securities shall have become effective
(unless, after effectiveness, the registration statement becomes subject to any
stop order, injunction or other order of the SEC or other governmental agency).
(e) In the event that the Company files a shelf registration statement
under Rule 415 of the Securities Act pursuant to a Demand Registration Request
and such registration becomes effective (such registration statement, a "Shelf
Registration Statement"), the Initiating Holders with respect to such Demand
Registration Request shall have the right at any time or from time to time to
elect to sell pursuant to an underwritten offering Registrable Securities
available for sale pursuant to such registration statement ("Shelf Registrable
Securities"), so long as the Shelf Registration Statement remains in effect and
only if the method of distribution set forth in the shelf registration allows
for sales pursuant to an underwritten offering. The Initiating Holders shall
make such election by delivering to the Company a written request (a "Shelf
Underwriting Request") for such underwritten offering to the Company specifying
the number of Shelf Registrable Securities that the Initiating Holders desire to
sell pursuant to such underwritten offering (the "Shelf Underwriting"). As
promptly as practicable, but no later than five (5) Business Days after receipt
of a Shelf Underwriting Request, the Company shall give written notice (the
"Shelf Underwriting Notice") of such Shelf Underwriting Request to all Holders
of record of Shelf Registrable Securities. The Company, subject to Sections 2.3
and 2.6, shall include in such Shelf Underwriting (x) the Registrable Securities
of the Initiating Holders and (y) the Shelf Registrable Securities of any other
Holder of Shelf Registrable Securities which shall have made a written request
to the Company for inclusion in such Shelf Underwriting (which request shall
specify the maximum number of Shelf Registrable Securities intended to be
disposed of by such Holder) within ten (10) days after the receipt of the Shelf
Underwriting Notice. The Company shall, as expeditiously as possible (and in any
event within twenty (20) days after the receipt of a Shelf Underwriting
Request), but subject to Section 2.1(b), use its reasonable best efforts to
effect such Shelf Underwriting. The Company shall, at the request of any
Initiating Holder, file any prospectus supplement or, if the applicable Shelf
Registration Statement is an automatic shelf registration statement (as defined
in Section 2.4), any post-effective amendments and otherwise take any action
necessary to include therein all disclosure and language deemed necessary or
advisable by the Initiating Holders to effect such Shelf Underwriting.
Notwithstanding anything to the contrary in Section 2.1(e), each Shelf
Underwriting must include, in the aggregate (based on the Registrable Securities
included in such Shelf Underwriting by all Holders participating in such Shelf
Underwriting), Registrable Securities having an aggregate market value of at
least $5 million as of the date of the relevant Shelf Underwriting Request.
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2.2. Piggyback Registrations.
(a) If at any time the Company proposes or is required to register any
of its equity securities under the Securities Act (other than pursuant to a
Demand Registration in accordance with Section 2.1 hereof or registrations on
Form F-4 or S-4 or Form S-8 or any similar successor forms thereto), the Company
shall give prompt written notice at least thirty (30) days prior to the filing
of any registration statement under the Securities Act (and in any event within
five (5) Business Days after receipt of notice of any exercise of demand
registration rights by any Person) of its intention to do so to each of the
Holders of record of Registrable Securities. Upon the written request of any
such Holder, made within twenty (20) Business Days following the receipt of any
such written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall, subject to Sections
2.2(c), 2.3 and 2.6 hereof, use its reasonable best efforts to cause all such
Registrable Securities, the Holders of which have so requested the registration
thereof, to be registered under the Securities Act with the securities which the
Company at the time proposes to register to permit the sale or other disposition
by the Holders (in accordance with the intended method of distribution thereof)
of the Registrable Securities to be so registered, including, if necessary, by
filing with the SEC a post-effective amendment or a supplement to the
registration statement filed by the Company or the prospectus related thereto
pursuant to a Form 6-K or Form 8-K. There is no limitation on the number of such
piggyback registrations pursuant to the preceding sentence which the Company is
obligated to effect. No registration of Registrable Securities effected under
this Section 2.2(a) shall relieve the Company of its obligations to effect
Demand Registrations under Section 2.1 hereof.
(b) The Company, subject to Sections 2.3 and 2.6, may elect to include
in any registration statement and offering pursuant to demand registration
rights by any Person (including any Demand Registration pursuant to Section 2.1
hereof), (i) authorized but unissued Ordinary Shares or Ordinary Shares held by
the Company as treasury shares and (ii) any other Ordinary Shares which are
requested to be included in such registration pursuant to the exercise of
piggyback registration rights granted by the Company after the date hereof and
which are not inconsistent with the rights granted in, or otherwise conflict
with the terms of, this Agreement ("Additional Piggyback Rights"); provided,
however, that, with respect to any underwritten offering, such inclusion shall
be permitted only to the extent that it is pursuant to, and subject to, the
terms of the underwriting agreement or arrangements, if any, entered into by the
Holders of a majority of the Registrable Securities in connection with any
underwritten offering being effected pursuant to such registration.
(c) If, at any time after giving written notice of its intention to
register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
equity securities, the Company may, at its election, give written notice of such
determination to all Holders of record of Registrable Securities and (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such abandoned
registration, without prejudice, however, to the rights of Holders under Section
2.1, and (ii) in the case of a determination to delay such registration of its
equity securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
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(d) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 2.2 by giving written notice to the Company of its request to
withdraw; provided, however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement, the execution of
the custody agreement or the printing and distribution of a preliminary
prospectus with respect to such registration and (ii) such withdrawal shall be
irrevocable and, after making such withdrawal, a Holder shall no longer have any
right to include Registrable Securities in the registration as to which such
withdrawal was made.
(e) Notwithstanding anything contained herein to the contrary, the
Company shall, at the request of any Holder (seeking to effect a Partner
Distribution), include all disclosure and language necessary to effect such
Partner Distribution in the relevant Registration Statement).
(f) In connection with any registrations set out in Section 2.2(a), the
Company shall have the right to designate the Manager in connection with any
underwritten offering pursuant to such registration and each other managing
underwriter for any such underwritten offering, in each case after consultation
with the GSCP Parties.
2.3. Allocation of Securities Included in Registration Statement.
(a) If any requested registration made pursuant to Section 2.1 involves
an underwritten offering and the Manager of such offering shall advise the
Company that, in its view, the number of securities requested to be included in
such underwritten offering by the Holders of Registrable Securities, the Company
and any other Persons exercising Additional Piggyback Rights exceeds the largest
number (the "Section 2.3(a) Sale Number") that can be sold in an orderly manner
in such underwritten offering within a price range acceptable to the Initiating
Holders, the Company shall include in such underwritten offering:
(i) first, all Registrable Securities requested to be included in
such underwritten offering by the GSCP Parties thereof; provided, however, that
if the number of such Registrable Securities exceeds the Section 2.3(a) Sale
Number, the number of such Registrable Securities (not to exceed the Section
2.3(a) Sale Number) to be included in such underwritten offering shall be
allocated on a pro rata basis among all GSCP Parties requesting that Registrable
Securities be included in such underwritten offering, based on the aggregate
number of Registrable Securities then owned by each such GSCP Parties requesting
inclusion in relation to the aggregate number of Registrable Securities owned by
all GSCP Parties requesting inclusion;
(ii) second, to the extent that the number of Registrable
Securities to be included pursuant to clause (i) of this Section 2.3(a) is less
than the Section 2.3(a) Sale Number, any securities that the Company proposes to
register, up to the Section 2.3(a) Sale Number; and
(iii) third, to the extent that the number of Registrable Securities
to be included pursuant to clauses (i) and (ii) of this Section 2.3(a) is less
than the Section 2.3(a) Sale Number, the remaining securities to be included in
such underwritten offering, up to the Section 2.3(a) Sale Number, shall be
allocated among all Persons requesting that securities be included in such
underwritten offering pursuant to the exercise of Additional Piggyback Rights
("Piggyback Shares") in any manner agreed by such Persons.
10
(b) If any registration made pursuant to Section 2.2 involves an
underwritten primary offering on behalf of the Company after the date hereof and
the Manager (as selected by the Company after consultation with the GSCP
Parties) shall advise the Company that, in its view, the number of securities
requested to be included in such underwritten offering by the Holders of
Registrable Securities, the Company or any other Persons exercising Additional
Piggyback Rights exceeds the largest number (the "Section 2.3(b) Sale Number")
that can be sold in an orderly manner in such underwritten offering within a
price range acceptable to the Company, the Company shall include in such
underwritten offering:
(i) first, all equity securities that the Company proposes to
register for its own account;
(ii) second, to the extent that the number of Registrable
Securities to be included pursuant to clause (i) of this Section 2.3(b) is less
than the Section 2.3(b) Sale Number, the remaining Registrable Securities to be
included in such underwritten offering shall be allocated on a pro rata basis
among all Major Shareholders and GSCP Parties requesting that Registrable
Securities be included in such underwritten offering pursuant to the exercise of
piggyback rights pursuant to Section 2.2, based on the aggregate number of
Registrable Securities then owned by each such Major Shareholder and/or GSCP
Party requesting inclusion in relation to the aggregate number of Registrable
Securities owned by all Major Shareholders and GSCP Parties requesting
inclusion, up to the Section 2.3(b) Sale Number; and
(iii) third, to the extent that the number of Registrable Securities
to be included pursuant to clauses (i) and (ii) of this Section 2.3(b) is less
than the Section 2.3(b) Sale Number, the remaining securities to be included in
such underwritten offering, up to the Section 2.3(b) Sale Number, shall be
allocated among all Persons requesting that securities be included in such
underwritten offering pursuant to the exercise of Additional Piggyback Rights in
any manner agreed by such Persons.
(c) If any registration pursuant to Section 2.2 involves an underwritten
offering that was initially requested by any Person(s) other than a Holder to
whom the Company has granted registration rights which are not inconsistent with
the rights granted in, or otherwise conflict with the terms of, this Agreement
and the Manager (as selected by the Company or such other Person) shall advise
the Company that, in its view, the number of securities requested to be included
in such underwritten offering exceeds the number (the "Section 2.3(c) Sale
Number") that can be sold in an orderly manner in such underwritten offering
within a price range acceptable to the Company, the Company shall include in
such underwritten offering:
(i) first, the shares requested to be included in such
underwritten offering shall be allocated on a pro rata basis among such
Person(s) requesting the registration and all Major Shareholders and GSCP
Parties Holders requesting that Registrable Securities be included in such
underwritten offering pursuant to the exercise of piggyback rights pursuant to
Section 2.2, based on the aggregate number of securities or Registrable
Securities, as applicable, then owned by each of the foregoing requesting
inclusion in relation to the aggregate number of securities or Registrable
Securities, as applicable, owned by all such Holders and Persons requesting
inclusion, up to the Section 2.3(c) Sale Number; and
11
(ii) second, to the extent that the number of Registrable
Securities to be included pursuant to clause (i) of this Section 2.3(c) is less
than the Section 2.3(c) Sale Number, the remaining shares to be included in such
underwritten offering, up to the Section 2.3(c) Sale Number, shall be allocated
among the Company and all Persons requesting that securities be included in such
underwritten offering pursuant to the exercise of Additional Piggyback Rights in
any manner agreed by such Persons.
(d) If, as a result of the proration provisions set forth in clauses
(a), (b) or (c) of this Section 2.3, any Holder shall not be entitled to include
all Registrable Securities in an underwritten offering that such Holder has
requested be included, such Holder may elect to withdraw such Holder's request
to include Registrable Securities in the registration to which such underwritten
offering relates or may reduce the number requested to be included; provided,
however, that (x) such request must be made in writing prior to the earlier of
the execution of the underwriting agreement or the execution of the custody
agreement with respect to such registration and (y) such withdrawal or reduction
shall be irrevocable and, after making such withdrawal or reduction, such Holder
shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal or reduction was made to the extent of
the Registrable Securities so withdrawn or reduced.
2.4. Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement
(or use commercially reasonable best reasonable best efforts to accomplish the
same), the Company shall, as expeditiously as possible (but, in any event,
within forty-five (45) days after the receipt of a Demand Registration Request,
if applicable):
(a) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC for the disposition of such Registrable
Securities in accordance with the intended method of disposition thereof
(including, without limitation, a Partner Distribution), which registration form
shall, in the case of a shelf registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and such registration
statement shall comply as to form in all material respects with the requirements
of the applicable registration form and include all financial statements
required by the SEC to be filed therewith, and the Company shall use reasonable
best efforts to cause such registration statement to become effective and remain
continuously effective for a period of three hundred sixty-five (365) days or
until the selling Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs, provided,
however, that the Company may postpone or suspend use of, or trading under, any
registration statement pursuant to Section 2.1(b)(iii) (provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, or comparable statements under securities or state "blue
sky" laws of any jurisdiction, or any free writing prospectus related thereto,
the Company will furnish to counsel for the Holders participating in the planned
offering (selected by the Majority Participating Holders) and to counsel for the
Manager, if any, copies of all such documents proposed to be filed (including
all exhibits thereto), which documents will be subject to the reasonable review
and reasonable comment of such counsel, and the Company shall not file any
registration statement or amendment thereto, any prospectus or supplement
thereto or any free writing prospectus related
12
thereto to which the Holders of a majority of the Registrable Securities covered
by such registration statement or the underwriters, if any, shall reasonably
object);
(b) (i) 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 such
period as any seller of Registrable Securities pursuant to such registration
statement shall request, provided, however, that the Company may postpone or
suspend use of, or trading under, any registration statement pursuant to Section
2.1(b)(iii), and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all Registrable Securities covered
by such registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement and (ii) provide notice to such sellers of Registrable Securities and
the Manager, if any, of the Company's reasonable determination that a
post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits), the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, each free writing prospectus utilized in
connection therewith, in each case, in conformity with the requirements of the
Securities Act, and other documents, as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such seller (the Company hereby
consenting to the use in accordance with all applicable law of each such
registration statement (or amendment or post-effective amendment thereto) and
each such prospectus (or preliminary prospectus or supplement thereto) or free
writing prospectus by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or state "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall reasonably
request in writing, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers or underwriter, if any,
to consummate the disposition of the Registrable Securities in such
jurisdictions (including keeping such registration or qualification in effect
for so long as such registration statement remains in effect), except that in no
event shall the Company be required to qualify to do business as a foreign
corporation in any jurisdiction where it would not, but for the requirements of
this paragraph (d), be required to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of process in
any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i) when
the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto, any post-effective amendment to the
registration statement or any free writing prospectus has been filed and, with
respect to the registration statement or any post-effective amendment, when the
13
same has become effective; (ii) of any request by the SEC or state securities
authority for amendments or supplements to the registration statement or the
prospectus related thereto or for additional information; (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
state "blue sky" laws of any jurisdiction or the initiation of any proceeding
for such purpose; (v) of the existence of any fact of which the Company becomes
aware which results in the registration statement or any amendment thereto, the
prospectus related thereto or any supplement thereto, any document incorporated
therein by reference, any free writing prospectus or the information conveyed to
any purchaser at the time of sale to such purchaser containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statement therein not misleading; and
(vi) if at any time the representations and warranties contemplated by any
underwriting agreement, securities sale agreement, or other similar agreement,
relating to the offering shall cease to be true and correct in all material
respects; and, if the notification relates to an event described in clause (v),
the Company shall promptly prepare and furnish to each such seller and each
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein in the light of the circumstances
under which they were made not misleading;
(f) (i) (A) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of such
exchange, or (B) if no similar securities are then so listed, to either cause
all such Registrable Securities to be listed on a national securities exchange
or to secure designation of all such Registrable Securities as a Nasdaq National
Market "national market system security" within the meaning of Rule 11Aa2-1 of
the Exchange Act or, failing that, secure Nasdaq National Market authorization
for such shares and, without limiting the generality of the foregoing, take all
actions that may be required by the Company as the issuer of such Registrable
Securities in order to facilitate the managing underwriter's arranging for the
registration of at least two market makers as such with respect to such shares
with the NASD, and (ii) comply (and continue to comply) with the requirements of
any self-regulatory organization applicable to the Company, including without
limitation all corporate governance requirements;
(g) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(h) enter into such customary agreements (including, if applicable, an
underwriting agreement, provided such underwriting agreement contains customary
terms) and take such other actions as reasonably advisable or necessary in order
to expedite or facilitate the timely disposition of such Registrable Securities;
14
(i) use its reasonable best efforts to (i) obtain an opinion and/or
disclosure letter from counsel to the Company for each relevant jurisdiction and
a "cold comfort" letter and updates thereof from the Company's independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, in each
case, in customary form and covering such matters as are customarily covered by
such opinions and "cold comfort" letters (including, in the case of such "cold
comfort" letter, events subsequent to the date of such financial statements)
delivered to underwriters in underwritten public offerings, which opinion and
letter shall be dated the dates such opinions and "cold comfort" letters are
customarily dated and otherwise reasonably satisfactory to the underwriters, if
any, (ii) obtain officer's certificates from the Company in customary form and
covering such matters as are customarily covered by such certificates, and (iii)
furnish to each Holder participating in the offering, if any, a copy of such
opinion, letter and certificate addressed to the underwriters;
(j) deliver promptly to each Holder participating in the offering and
each underwriter, if any, copies of all correspondence between the SEC and the
Company, its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement, and, upon
receipt of such confidentiality agreements as the Company may reasonably
request, make reasonably available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of the Company, and
cause all of the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement, or the lifting
of any suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction, in each case, as promptly as possible;
(l) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the registration statement;
(m) use its reasonable best efforts to make available its employees and
personnel for participation in "road shows" (so long as such road show
participation does not, in the judgment of the board of directors, as evidenced
by a written resolution, materially adversely disrupt the management and
operations of the Company) and other marketing efforts and otherwise provide
reasonable assistance to the underwriters (taking into account the needs of the
Company's businesses and the requirements of the marketing process) in the
marketing of Registrable Securities in any underwritten offering;
(n) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement), and prior to the
filing or use of any free writing prospectus, provide copies of such document to
counsel for the selling Holders of Registrable Securities and to each managing
underwriter, if any, and make the Company's representatives reasonably available
for
15
discussion of such document and make such changes in such document concerning
the selling Holders prior to the filing thereof as counsel for such selling
Holders or underwriters may reasonably request;
(o) furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments or supplements thereto,
including financial statements and schedules, all documents incorporated therein
by reference, the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus), any other prospectus
filed under Rule 424 under the Securities Act and all exhibits (including those
incorporated by reference) and any free writing prospectus utilized in
connection therewith;
(p) cooperate with the selling Holders of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates not bearing any restrictive legends representing the Registrable
Securities to be sold, and cause such Registrable Securities to be issued in
such denominations and registered in such names in accordance with the
underwriting agreement at least two (2) Business Days prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten offering,
in accordance with the instructions of the selling Holders of Registrable
Securities at least two (2) Business Days prior to any sale of Registrable
Securities and instruct any transfer agent and registrar of Registrable
Securities to release any stop transfer orders in respect thereof;
(q) take no direct or indirect action prohibited by Regulation M under
the Exchange Act; provided, however, that to the extent that any prohibition is
applicable to the Company, the Company will take such action as is necessary to
make any such prohibition inapplicable;
(r) use its reasonable best efforts to cause the Registrable Securities
covered by the applicable registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the selling Holders or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(s) take other commercially reasonable actions necessary or advisable in
order to expedite or facilitate the timely disposition of such Registrable
Securities;
(t) take all reasonable action to ensure that any free writing
prospectus utilized in connection with any registration covered by Section 2.1
or 2.2 complies in all material respects with the Securities Act, is filed in
accordance with the Securities Act to the extent required thereby, is retained
in accordance with the Securities Act to the extent required thereby and, when
taken together with the related prospectus, prospectus supplement and related
documents, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(u) in connection with any underwritten offering, if at any time the
information conveyed to a purchaser at the time of sale includes any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, promptly file with the SEC such
16
amendments or supplements to such information as may be necessary so that the
statements as so amended or supplemented will not, in light of the
circumstances, be misleading.
To the extent the Company is a well-known seasoned issuer (as
defined in Rule 405 under the Securities Act) (a "WKSI") at the time any Demand
Registration Request is submitted to the Company, and such Demand Registration
Request requests that the Company file an automatic shelf registration statement
(as defined in Rule 405 under the Securities Act) (an "automatic shelf
registration statement") on Form F-3 or S-3, the Company shall file an automatic
shelf registration statement which covers those Registrable Securities which are
requested to be registered. The Company shall use its commercially reasonable
best efforts to remain a WKSI (and not become an ineligible issuer (as defined
in Rule 405 under the Securities Act)) during the period during which such
automatic shelf registration statement is required to remain effective. If the
Company does not pay the filing fee covering the Registrable Securities at the
time the automatic shelf registration statement is filed, the Company agrees to
pay such fee at such time or times as the Registrable Securities are to be sold.
If the automatic shelf registration statement has been outstanding for at least
three (3) years, at the end of the third year the Company shall refile a new
automatic shelf registration statement covering the Registrable Securities. If
at any time when the Company is required to re-evaluate its WKSI status the
Company determines that it is not a WKSI, the Company shall use its commercially
reasonable best efforts to refile the shelf registration statement on Form F-3
or S-3 and, if such form is not available, Form F-1 or S-1 and keep such
registration statement effective during the period during which such
registration statement is required to be kept effective.
If the Company files any shelf registration statement for the
benefit of the holders of any of its securities other than the Holders, the
Company agrees that it shall include in such registration statement such
disclosures as may be required by Rule 430B under the Securities Act (referring
to the unnamed selling security holders in a generic manner by identifying the
initial offering of the securities to the Holders) in order to ensure that the
Holders may be added to such shelf registration statement at a later time
through the filing of a prospectus supplement rather than a post-effective
amendment.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable Securities as
to which any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request provided that such information is necessary
for the Company to consummate such registration and shall be used only in
connection with such registration.
In the event the Company shall give any notice of the happening of
any event of the kind described in clause (v) of paragraph (e) of this Section
2.4, the applicable period mentioned in paragraph (b) of this Section 2.4 shall
be extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
paragraph (e) of this Section 2.4.
17
If any such registration statement or comparable statement under
state "blue sky" laws refers to any Holder by name or otherwise as the Holder of
any securities of the Company, then such Holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such Holder and the Company, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion of
the reference to such Holder.
2.5. Registration Expenses.
(a) The Company shall pay all Expenses with respect to any registration
of Registrable Securities pursuant to Section 2.1 (in the event that the Company
proposes, or has indicated that it proposes, to offer securities in an offering
covered by a Demand Registration) and 2.2, whether or not a registration
statement becomes effective. In the event that the Company does not propose, or
indicate to propose, to offer securities covered by a Demand Registration, the
participating selling shareholders will be responsible, pro rata to the number
of shares requested to be sold pursuant to such Demand Registration, for
expenses relating to (i) the fees and disbursements of counsel for the Holders
(selected by the Holders owning a majority in interest of the Registrable
Securities being registered or sold), (ii) fees and expenses payable to a
Qualified Independent Underwriter and (iii) any other fees and disbursements of
underwriters, if any, customarily paid by issuers and sellers of securities; and
the Company shall pay all other Expenses.
(b) Notwithstanding the foregoing, (x) the provisions of this Section
2.5 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with state "blue sky" laws of each state in which the
offering is made and (y) in connection with any underwritten offering, each
Holder of Registrable Securities being registered shall pay all underwriting
discounts and commissions and any transfer taxes, if any, attributable to the
sale of such Registrable Securities, pro rata with respect to payments of
discounts and commissions in accordance with the number of shares sold in the
offering by such Holder.
2.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 involving an underwritten offering, or, in the
case of a registration under Section 2.2, if the Company has determined to enter
into an underwriting agreement in connection therewith, all securities to be
included in such underwritten offering shall be subject to such underwriting
agreement and no Person may participate in such underwritten offering unless
such Person (i) agrees to sell such Person's securities on the basis provided
therein and completes and executes all reasonable questionnaires, and other
documents (including custody agreements and powers of attorney) which must be
executed in connection therewith; provided, however, that all such documents
shall be substantially consistent with the provisions hereof and (ii) provides
such other information to the Company or the underwriter as may be necessary to
register such Person's securities.
18
2.7. Limitations on Sale or Distribution of Other Securities.
(a) Each Holder agrees, (i) to the extent requested in writing by a
managing underwriter, if any, of any underwritten public offering pursuant to a
registration effected pursuant to Section 2.1, not to sell, transfer or
otherwise dispose of, including any sale pursuant to Rule 144 under the
Securities Act, any Ordinary Shares, or any other equity security of the Company
or any security convertible into or exchangeable or exercisable for any equity
security of the Company (other than as part of such underwritten public
offering) during the time period reasonably requested by the managing
underwriter, not to exceed ninety (90) days or such shorter period as the
Company or any executive officer or director of the Company shall agree to (180
days in the case of the Company's initial public equity offering) (and the
Company hereby also so agrees (except that the Company may effect any sale or
distribution of any such securities pursuant to a registration on Form F-4 or
S-4 (if reasonably acceptable to such managing underwriter) or Form S-8, or any
successor or similar form which is (x) then in effect or (y) shall become
effective upon the conversion, exchange or exercise of any then outstanding
Share Equivalent), to use its reasonable best efforts to cause each holder of
any equity security or any security convertible into or exchangeable or
exercisable for any equity security of the Company purchased from the Company at
any time other than in a public offering so to agree), and (ii) to the extent
requested in writing by a managing underwriter of any underwritten public
offering effected by the Company for its own account in which one or more
Holders is selling Ordinary Shares pursuant to the exercise of piggyback rights
under Section 2.2 hereof, it will not sell any Ordinary Shares (other than as
part of such underwritten public offering) during the time period reasonably
requested by the managing underwriter, which period shall not exceed ninety (90)
days or such shorter period as the Company or any executive officer or director
of the Company shall agree to (180 days in the case of the Company's initial
public equity offering).
(b) The Company hereby agrees that, if it shall previously have received
a request for registration pursuant to Section 2.1 or 2.2, and if such previous
registration shall not have been withdrawn or abandoned, the Company shall not
sell, transfer, or otherwise dispose of, any Ordinary Shares, or any other
equity security of the Company or any security convertible into or exchangeable
or exercisable for any equity security of the Company (other than as part of
such underwritten public offering, a registration on Form F-4 or S-4 or Form S-8
or any successor or similar form which is (x) then in effect or (y) shall become
effective upon the conversion, exchange or exercise of any then outstanding
Share Equivalent), until a period of ninety (90) days shall have elapsed from
the effective date of such previous registration (180 days in the case of the
Company's initial public equity offering); and the Company shall (i) so provide
in any registration rights agreements hereafter entered into with respect to any
of its securities and (ii) use its reasonable best efforts to cause each holder
of any equity security or any security convertible into or exchangeable or
exercisable for any equity security of the Company purchased from the Company at
any time other than in a public offering to so agree.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to create
an independent obligation on the part of any Holder to sell any Registrable
Securities pursuant to any effective registration statement.
19
2.9. Indemnification.
(a) In the event of any registration of any securities of the Company
under the Securities Act pursuant to this Section 2, the Company will, and
hereby agrees to, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder of Registrable Securities, its advisers,
directors, officers, fiduciaries, employees, stockholders, members or general
and limited partners (and the directors, officers, fiduciaries, employees,
stockholders, members or general and limited partners thereof), each other
Person who participates as a seller (and its directors, officers, fiduciaries,
employees, stockholders, members or general and limited partners), underwriter
or Qualified Independent Underwriter, if any, in the offering or sale of such
securities, each officer, director, employee, stockholder, fiduciary, managing
director, agent, affiliate, consultant, representative, successor, assign or
partner of such underwriter or Qualified Independent Underwriter, and each other
Person, if any, who controls such seller or any such underwriter or Qualified
Independent Underwriter within the meaning of the Securities Act, from and
against any and all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected with
the Company's consent, which consent shall not be unreasonably withheld or
delayed) to which each such indemnified party may become subject under the
Securities Act or otherwise in respect thereof (collectively, "Claims"), insofar
as such Claims arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such securities were registered under the Securities Act
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment or
supplement thereto, together with the documents incorporated by reference
therein, or any free writing prospectus utilized in connection therewith, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (iii)
any untrue statement or alleged untrue statement of a material fact in the
information conveyed to any purchaser at the time of the sale to such purchaser,
or the omission or alleged omission to state therein a material fact required to
be stated therein, or (iv) any violation by the Company of any federal, state or
common law rule or regulation applicable to the Company and relating to action
required of or inaction by the Company in connection with any such registration,
and the Company will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact or omission
or alleged omission of a material fact made in such registration statement or
amendment thereof or supplement thereto or in any such prospectus or any
preliminary, final or summary prospectus or free writing prospectus in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such indemnified party specifically for use therein. Such indemnity
and reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in the
securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Company requires as
20
a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 2.1 or 2.2, any underwriter and
Qualified Independent Underwriter, if any) shall, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in paragraph (a) of this Section 2.9) to the extent permitted by law the
Company, its officers and directors, each Person controlling the Company within
the meaning of the Securities Act and all other prospective sellers and their
directors, officers, stockholders, fiduciaries, managing directors, agents,
affiliates, consultants, representatives, successors, assigns or general and
limited partners and respective controlling Persons with respect to any untrue
statement or alleged untrue statement of any material fact in, or omission or
alleged omission of any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or any free writing prospectus utilized in connection
therewith, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or its representatives by or on behalf of such Holder
or underwriter or Qualified Independent Underwriter, if any, specifically for
use therein, and each such Holder, underwriter or Qualified Independent
Underwriter, if any, shall reimburse such indemnified party for any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the aggregate amount which any such Holder shall be
required to pay pursuant to this Section 2.9(b) and Sections 2.9(c) and (e)
shall in no case be greater than the amount of the gross proceeds received by
such Holder upon the sale of the Registrable Securities pursuant to the
registration statement giving rise to such Claim. The Company and each Holder of
Registrable Securities hereby acknowledge and agree that, unless otherwise
expressly agreed to in writing by such Holders to the contrary, for all purposes
of this Agreement, the only information furnished or to be furnished to the
Company by or on behalf of any Holder for use in any such registration
statement, preliminary, final or summary prospectus or amendment or supplement
thereto, or any free writing prospectus, are statements specifically relating to
(i) the number of Registrable Securities held by such Holder and its Affiliates
and (ii) the name and address of such Holder. If any additional information
about such Holder or the plan of distribution (other than for an underwritten
offering) is required by law to be disclosed in any such document, then such
Holder shall not unreasonably withhold its agreement referred to in the
immediately preceding sentence. Such indemnity and reimbursement of expenses
shall remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified party and shall survive the transfer of such
securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any applicable securities and state "blue sky" laws.
(d) Any Person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 2.9, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 2.9, except to the extent the
indemnifying party is materially and actually prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than
21
under this Section 2. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party of the commencement
thereof (as required above), the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
that it so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that (i) if the indemnifying party
fails to take reasonable steps necessary to defend diligently the action or
proceeding within twenty (20) days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so; or (ii) if
such indemnified party who is a defendant in any action or proceeding which is
also brought against the indemnifying party reasonably shall have concluded that
there may be one or more legal or equitable defenses available to such
indemnified party which are not available to the indemnifying party or which may
conflict with those available to another indemnified party with respect to such
Claim; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct,
then, in any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have made a conclusion
described in clause (ii) or (iii) above) and the indemnifying party shall be
liable for any expenses therefor. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable,
unenforceable or is insufficient to hold harmless an indemnified party under
Sections 2.9(a), (b) or (c), then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of any Claim in such proportion as is appropriate to reflect the relative fault
of the indemnifying party, on the one hand, and the indemnified party, on the
other hand, with respect to such Claim. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second preceding sentence
is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also
the relative benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if any
22
contribution pursuant to this Section 2.9(e) were to be 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 preceding sentences of this
Section 2.9(e). The amount paid or payable in respect of any Claim shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
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. Notwithstanding
anything in this Section 2.9(e) to the contrary, no indemnifying party (other
than the Company) shall be required pursuant to this Section 2.9(e) to
contribute any amount in excess of the gross proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the indemnified parties
relate, less the amount of any indemnification payment made by such indemnifying
party pursuant to Sections 2.9(b) and (c).
(f) The indemnity and contribution agreements contained herein shall be
in addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section 2.9
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.
Section 3. Underwritten Offerings.
3.1. Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering pursuant to a registration requested under Section
2.1, the Company shall enter into a customary underwriting agreement with the
underwriters. Such underwriting agreement shall (i) be satisfactory in form and
substance to the Majority Participating Holders, (ii) contain terms not
inconsistent with the provisions of this Agreement and (iii) contain such
representations and warranties by, and such other agreements on the part of, the
Company and such other terms as are customary in agreements of that type,
including, without limitation, indemnities and contribution agreements on
substantially the same terms as those contained herein. Any Holder participating
in the offering shall be a party to such underwriting agreement. Each such
Holder shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, its ownership of and title to
the Registrable Securities, and its intended method of distribution; and any
liability of such Holder to any underwriter or other Person under such
underwriting agreement shall be limited to liability arising from breach of its
representations and warranties and shall be limited to an amount equal to the
proceeds that it derives from such registration.
3.2. Piggyback Underwritten Offerings. In the case of a registration
pursuant to Section 2.2, if the Company shall have determined to enter into an
underwriting agreement in connection therewith, all of the Holders' Registrable
Securities to be included in such registration shall be subject to such
underwriting agreement. Any Holder participating in such
23
registration may, at its option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters shall also be made to and for the benefit
of such Holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holder. Each such Holder shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such Holder, its ownership of and title to the Registrable Securities,
and its intended method of distribution; and any liability of such Holder to any
underwriter or other Person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and shall
be limited to an amount equal to the proceeds (net of expenses and underwriting
discounts and commissions) that it derives from such registration.
Section 4. General.
4.1. Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
Ordinary Shares which would adversely affect the ability of any Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration. The Company agrees that it will
take all reasonable steps necessary to effect a subdivision of Ordinary Shares
if in the reasonable judgment of (a) the Majority Participating Holders and (b)
the managing underwriter for the offering in respect of such Demand Registration
Request, such subdivision would enhance the marketability of the Registrable
Securities. In any event, the provisions of this Agreement shall apply, to the
full extent set forth herein with respect to the Registrable Securities, to any
and all shares of capital stock of the Company, any successor or assign of the
Company (whether by merger, share exchange, consolidation, sale of assets or
otherwise) or any subsidiary of the Company which may be issued in respect of,
in exchange for or in substitution of, Registrable Securities and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
4.2. Rule 144 and Rule 144A. If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of the
Securities Act in respect of the Ordinary Shares or Share Equivalents, the
Company covenants that (i) so long as it remains subject to the reporting
provisions of the Exchange Act, it will timely file the reports required to be
filed by it under the Securities Act or the Exchange Act (including, but not
limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 under the Securities Act, as such Rule may
be amended ("Rule 144")) or, if the Company is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information so long as necessary to permit sales by such Holder under Rule 144,
Rule 144A under the Securities Act, as such Rule may be amended ("Rule 144A"),
or any similar rules or regulations hereafter adopted by the SEC, and (ii) it
will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (A) Rule 144, (B) Rule 144A or (C) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of any Holder
of Registrable Securities, the
24
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
4.3. Nominees for Beneficial Owners. If Registrable Securities are held by
a nominee for the beneficial owner thereof, the beneficial owner thereof may, at
its option, be treated as the Holder of such Registrable Securities for purposes
of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of any number or
percentage of shares constituting Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement), provided that
the Company shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
4.4. Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or any Holder unless such modification, amendment
or waiver is approved in writing by the Company and the Holders holding a
majority of the Registrable Securities held by all Holders. Notwithstanding the
foregoing, no modification, amendment or waiver shall be made or granted in a
manner that materially and adversely affects a Holder's rights hereunder without
the approval of such Holder, unless such modification, amendment or waiver
adversely affects all Holders in the same manner proportionate to their
respective holdings of Registrable Securities. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provision hereof (whether or not similar). No failure or delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof or of any other or future exercise of any such
right, power or privilege.
4.5. Notices. Except as otherwise provided in this Agreement, all notices,
requests, consents and other communications hereunder to any party shall be
deemed to be sufficient if contained in a written instrument delivered in person
or by telecopy, nationally recognized overnight courier or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below and to any other
recipient at the address indicated on Schedule 4.5 hereto or at such other
address as may hereafter be designated in writing by such party to the other
parties:
(i) if to the Company, to:
Mindray Medical International Limited
Mindray Building
Keji 12th Road South
Hitech Industrial Park
Xxxxxxx, Xxxxxxxx, XXX 000000
Telecopy: x00 000 0000 0000
Attention: Xxxxx I-Xxx Xxx
25
(ii) if to the GSCP Parties, to:
Xxxxxxx Sachs & Co.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
XXX
Telecopy: x000 000 0000
Attention: Xxx Xxxxx, Esq./Xxxxxxx Xxxxxx, Esq.
with a copy to:
Freshfields Bruckhaus Xxxxxxxx
00xx Xxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxx Xxxx
Telecopy: x000 0000 0000
Attention: Xxx Xxxxxxxx
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
4.6. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and the
respective successors, personal representatives and assigns of the parties
hereto, whether so expressed or not. This Agreement may not be assigned by the
Company, without the prior written consent of the GSCP Parties. Any Holder may,
at its election, at any time or from time to time, assign its rights under this
Agreement, in whole or in part, to any person who acquires Registrable
Securities held by it. If any Holder shall acquire additional Registrable
Securities, such Registrable Securities shall be subject to all of the terms,
and entitled to all the benefits, of this Agreement.
4.7. Entire Agreement. This Agreement (with the documents referred to
herein or delivered pursuant hereto) embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
4.8. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without reference to the conflict of laws
principles thereof. Each of the parties hereto hereby irrevocably submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
(Borough of Manhattan) for purposes of all legal proceedings arising out of or
relating to the Agreement or the transactions contemplated hereby. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 4.5 shall be deemed effective service of process on such
person. Each of the parties
26
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any
Litigation arising out of or relating to this Agreement or the transactions
contemplated hereby.
4.9. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
Section references are to this Agreement unless otherwise expressly provided.
4.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.11. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
4.12. Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to injunctive relief, including specific performance, to enforce such
obligations without the posting of any bond, and, if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law. All remedies, either under this Agreement, by law, or otherwise afforded to
any party, shall be cumulative and not alternative.
4.13. Further Assurances. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.14. No Inconsistent Agreements. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or by
which it is bound. Without the prior written consent of Holders of a majority of
the then outstanding Registrable Securities, the Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted in this Agreement or
otherwise conflicts with the provisions hereof or provides terms and conditions
which are more favorable to, or less restrictive on, the other party thereto
than the terms and conditions contained in this Agreement are (insofar as they
are applicable) to the Holders. The Company further agrees that if any other
registration rights agreement entered into after the date of this Agreement with
respect to any of its securities contains terms which are more favorable to, or
less restrictive on, the other party thereto than the terms and conditions
contained in this Agreement are (insofar as they are applicable) to the Holders,
then the terms and conditions of this Agreement shall immediately be deemed to
have been amended without further action by the Company or any of the Holders of
27
Registrable Securities so that the Holders shall each be entitled to the benefit
of any such more favorable or less restrictive terms or conditions.
28
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
MINDRAY MEDICAL INTERNATIONAL LIMITED
By: /S/ Xu Hang
-------------------------------------
Name: Xu Hang
Title: Chairman and Co-CEO
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
GS CAPITAL PARTNERS V FUND, L.P.
By: GSCP V Advisors, L.L.C.,
its general partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS V OFFSHORE FUND, L.P.
By: GSCP V Offshore Advisors, L.L.C.,
its general partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS V GmbH & Co. KG
By: GS Advisors V, L.L.C.,
its managing limited partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS V INSTITUTIONAL, L.P.
By: GS Advisors V, L.L.C.,
its general partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director and Vice President
