REGISTRATION RIGHTS AGREEMENT
Exhibit 10.52
This REGISTRATION RIGHTS AGREEMENT is dated as of April 22, 2010, by and between MIE Holdings
Corporation, an exempted company incorporated with limited liability in the Cayman Islands
(together with its successors, the “Company”), TPG Star Energy Ltd. (“TPG Star”),
an exempted company incorporated with limited liability in the Cayman Islands, TPG Star Energy
Co-Invest, LLC (“TPG Co-Invest,” together with TPG Star, “TPG”) and Sino Link
Limited (collectively, the “Investors”).
RECITALS
WHEREAS, the Investors are holders of all Series A Preferred Shares, par value US$0.001 per
share (“Series A Preferred Shares”), of the Company and together with the Company and other
parties thereto are parties to the Second Amended and Restated Shareholders Agreement dated March
10, 2010 (the “Shareholders Agreement”);
WHEREAS, the Company desires to raise additional capital through the public offer and sale of
American Depositary Shares representing the Company’s Ordinary Shares (as defined below) (the
“IPO”) and has made its first public filing of a registration statement on Form F-1 with
the United States Securities and Exchange Commission on April 16, 2010;
WHEREAS, each Series A Preferred Share will automatically convert into one Ordinary Share
immediately prior to the consummation of the IPO, which is expected to take place within one month
hereof; and
WHEREAS, the parties desire to set forth certain registration rights applicable to the
Registrable Shares (as defined below) held by the Investors, and the Company desires to indemnify
the Investors against certain liabilities to which it may become subject as a result of their
investments in the Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and upon the terms and subject to the conditions hereof, the parties hereby agree as
follows:
1. Definitions. As used herein:
“Adverse Disclosure” means public disclosure of material non-public information,
disclosure of which, in the good faith judgment of a majority of the Board of Directors of the
Company, after consultation with outside counsel to the Company, (i) would be required to be made
in any Registration Statement filed by the Company so that such Registration Statement would not be
false or misleading in any material respect; (ii) would not be required to be made at such time but
for the filing or publication of such Registration Statement; and (iii) the Company has a
bona fide business purpose for not disclosing publicly.
“Affiliate” of any person means any person that, alone or together with any other
person, directly or indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, such person. For purposes of this definition, “control” means,
when used with respect to any person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person, whether through the
ownership of voting securities, by contract, or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Agreement” means this Registration Rights Agreement, as the same shall be amended,
modified or supplemented from time to time.
“Claim” has the meaning specified in Section 6.3 hereof.
“Commission” means the United States Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
“Company” has the meaning specified in the preamble hereof.
“Covered Documents” means each Registration Statement and each Periodic Report
incorporated by reference into the Registration Statement.
“Demand Registration” has the meaning assigned such term in Section 2.1.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
“Governmental Entity” means any government or political subdivision or department
thereof, any governmental or regulatory body, commission, board, bureau, agency or instrumentality,
or any court or arbitrator or alternative dispute resolution body, in each case, whether federal,
state, local or foreign.
“Group” has the meaning specified in Rule 13d-5 under the Exchange Act.
“Holders” means the Investors and their respective successors and assigns who are
Holders of the Registrable Shares in accordance with this Agreement.
“Indemnified Parties” has the meaning specified in Section 6.1 hereof.
“Initiating Holders” shall means the Holders who are the holders of at least a
majority of the Registrable Shares.
“Losses” has the meaning specified in Section 6.1 hereof.
“Material Adverse Change” means (i) any general suspension of trading in, or
limitation on prices for, securities on any national securities exchange or in the over-the-counter
market in the United States of America or the international financial markets; (ii) the declaration
of a banking moratorium or any suspension of payments in respect of banks in the United States of
America, Cayman Islands or People’s Republic of China; (iii) a material outbreak or escalation of
armed hostilities or other international or national calamity involving the United States of
America, Cayman Islands or People’s Republic of China or the declaration by the
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United States, Cayman Islands or People’s Republic of China of a national emergency or war or
a change in national or international financial, political or economic conditions or any material
change in the exchange rate between Renminbi and the U.S. dollar; and (iv) any material adverse
change in the Company’s business, properties, condition (financial or otherwise) or in the
earnings, business affairs or business prospects of the Company, whether or not in the ordinary
course of business.
“Notice of Demand” has the meaning assigned such term in Section 2.1.
“Ordinary Shares” shall mean ordinary shares of the Company, par value US$0.001 per
share.
“Periodic Report” means each periodic report filed by the Company with the Commission
under the Exchange Act.
“Person” or “Persons” means any individual, corporation, company, association,
partnership, joint venture, trust or unincorporated organization or Governmental Entity.
“Preemption Notice” has the meaning assigned such term in Section 2.3(a).
“Prospectus” means the prospectus included in the Registration Statement at each such
time as such Registration Statement is filed with the Commission and at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
“Registrable Shares” means the Ordinary Shares beneficially owned by the Investors,
and any Ordinary Shares from time to time receivable from the conversion, exchange or exercise of
any other securities of the Company beneficially owned by the Investors, in each case, immediately
following the consummation of the IPO. Registrable Shares shall cease to be such when (a) a
Registration Statement with respect to the sale thereof shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance with such Registration
Statement; (b) they shall have been sold as permitted by Rule 144 (or any successor provision)
under the Securities Act; (c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration of such distribution under
the Securities Act; (d) they shall have ceased to be outstanding; (e) they shall have been sold in
a transaction not subject to the registration requirements of the Securities Act in which the
transferor’s rights pursuant to Section 2 hereof shall not have been assigned to the transferee; or
(f) an opinion of nationally recognized counsel experienced in such matters shall have been
provided to the Company and Holders, in form and substance reasonably acceptable to the Holders and
the Company and based upon such certificates or statements of facts as shall be reasonably required
by such counsel to be delivered by the Holders or the Company, as the case may be, that such
securities are distributable in a single sale without any limitation as to volume pursuant to Rule
144 under the Securities Act.
“Registration Expenses” has the meaning assigned such term in Section 4.
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“Registration Statement” means a registration statement of the Company, concerning the
sale of its securities to the public, on an appropriate form under the Securities Act, including
the Prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and all material incorporated by reference therein.
“Representatives” means, with respect to any Person, any of such Person’s officers,
directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing
partners or financial advisors or other Person associated with, or acting on behalf of, such
Person.
“Securities Act” means the United States Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
2. Demand Registration.
2.1. Requests for Registration. Subject to the terms of this Agreement, Initiating
Holders may request, after 180 days after the consummation of the Company’s IPO, registration of
some or all of its Registrable Shares (provided the Registrable Shares to be so registered have an
estimated market value of at least $20 million in aggregate) under the Securities Act by the
Company. The Initiating Holders of Registrable Shares shall be entitled to request for two
registrations, not including any registrations on Form F-3 (or any successor form) under the
Securities Act, or any similar short form registration statement under applicable non-U.S.
securities laws or registrations pursuant to Section 2.1 herein, which shall have no such limit
(each, a “Demand Registration”). Any request for a Demand Registration (each, a
“Notice of Demand”) shall specify (a) name of the Holder, (b) the amount of Registrable
Shares proposed to be registered, and (c) the intended method or methods and plan of disposition
thereof, including whether such requested registration is to involve an underwritten offering. It
is agreed that at any time when the Company is eligible to file a Registration Statement on Form
F-3 (or any successor form), Initiating Holders may request that the Company file a Registration
Statement pursuant to Rule 415 under the Securities Act to permit the offering of the Registrable
Shares on a delayed or continuous basis. The Company shall give prompt written notice to the
Holders of all other Registrable Shares as soon as practicable (but in no event less than 30 days
prior to the proposed date of filing of the Registration Statement relating to such registration)
and shall include in such Demand Registration all Registrable Shares with respect to which the
Company has received written requests for inclusion within 15 days after delivery of such notice.
Subject to the terms and conditions hereof, each Demand Registration shall register the offer and
sale of Registrable Shares for all cash consideration, and a Registration Statement in connection
therewith shall permit the disposition of such Registrable Shares in accordance with the intended
method or methods of disposition specified in the Notice of Demand. For the avoidance of doubt, a
Piggyback Registration pursuant to Section 2.5 hereof shall not be considered a Demand Registration
for purposes of calculating whether such a registration demand has been made.
2.2. Demand Registration Expenses; Effective Registration. Pursuant to Section 4, the
Holders shall pay all Registration Expenses in connection with each Demand Registration, on a pro
rata basis based on the number of Registrable Shares included in such Demand Registration, whether
or not deemed effected pursuant to this Section. A registration requested pursuant to Section 2.1
shall be deemed to have been effected and to be a Demand
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Registration, if and only if a Registration Statement with respect thereto has become
effective under the Securities Act and remains effective during the period provided for in Section
3(b). No Demand Registration shall be deemed to have been effected if (i) such Registration
Statement is interfered with by any stop order, injunction or other order or requirement of the
Commission or other governmental or regulatory agency or court; or (ii) the conditions to closing
specified in any underwriting agreement entered into in connection with such Registration Statement
are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such
applicable underwriting agreement by the Company.
2.3. Demand Withdrawal. The Holders may withdraw their Registrable Shares from a
Demand Registration at any time prior to the effectiveness of the applicable Registration
Statement. Upon receipt of a notice from the Holders to such effect, the Company shall cease all
efforts to secure effectiveness of such Registration Statement. Such Registration Statement shall
be deemed a Demand Registration effected by the Company for purposes of Section 2.2, unless the
Holders shall have paid or reimbursed the Company for the reasonable and documented Registration
Expenses paid by the Company in connection with such withdrawn Registration.
2.4. Preemption.
(a) If not more than 30 days prior to receipt of a Notice of Demand, the Company shall have
(i) circulated to prospective underwriters and their counsel a draft of a Registration Statement
for a primary offering of equity securities on behalf of the Company; (ii) solicited bids for a
primary offering of Ordinary Shares; or (iii) otherwise reached an understanding with an
underwriter with respect to a primary offering of Ordinary Shares, the Company may preempt the
Demand Registration with such primary offering by delivering written notice of such intention (the
“Preemption Notice”) to the Holders within five days after the Company has received the
Notice of Demand. The period of preemption may be up to 60 days following the date of the
Preemption Notice.
(b) Upon the Company’s preemption of a registration requested pursuant to Section 2.1, such
requested registration shall not be considered a Demand Registration and the Holders agree not to
exercise their right for a Demand Registration during the period of preemption. Notwithstanding
anything to the contrary herein, the Company shall not be entitled to exercise its right to preempt
a requested registration pursuant to this Section more than once in any 12-month period.
2.5. Priority. If a Demand Registration or any Piggyback Registration involves an
underwritten offering and the managing underwriters advise the Board of Directors of the Company in
writing that they believe that the total number of shares of Ordinary Shares (including the
Registrable Shares) is such as would have an adverse effect on the ability of the underwriters to
effect the underwritten offering, then the Company shall include in such registration such number
of shares of Ordinary Shares which the Company is so advised can be sold in such offering,
provided that the securities to be included in such offering shall be (i) in the case of a
Piggyback Registration only, first, 100% of the securities that the Company or (subject to Section
7.1) any Person (other than a Holder of Registrable Shares) exercising a contractual right to
demand registration, as the case may be, proposes to sell; and (ii) second, and in the case of a
Piggyback Registration only if all the securities referenced in clause (i) have been
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included, the number of Registrable Shares that, in the opinion of such underwriter or
underwriters, can be sold without having such adverse effect, allocated pro rata
among the sellers thereof in accordance with the provisions of the following sentence. All sellers
of Registrable Shares shall share pro rata in the number of shares of Ordinary
Shares to be excluded from such offering, such sharing to be based on the respective number of
shares of Ordinary Shares as to which registration has been requested by such sellers. If and only
if all of the Registrable Shares as to which registration has been requested by the Holders thereof
have been included in the Demand Registration or Piggyback Registration, then any other securities
eligible for inclusion in such Demand Registration or Piggyback Registration may be included by the
Company on the account of securityholders other than the Holders of Registrable Shares.
2.6. Piggyback Registrations. (a) If the Company at any time proposes to file a
Registration Statement under the Securities Act with respect to any offering of its securities for
its own account or for the account of any other Persons (other than (i) under Section 2.1 hereof,
(ii) on Form F-4 or S-8 or any successor form to such forms, or (iii) solely relating to an
offering and sale to employees or directors of the Company pursuant to any employee stock plan or
other employee benefit plan arrangement), then, as soon as practicable (but in no event less than
30 days prior to the proposed date of filing such Registration Statement), the Company shall give
written notice of such proposed filing to all Holders of Registrable Shares, and such notice shall
offer the Holders of such Registrable Shares the opportunity to register under such Registration
Statement such number of Registrable Shares as each such Holder may request in writing (a
“Piggyback Registration”). Subject to Section 2.4, the Company shall include in such
Registration Statement all such Registrable Shares which are requested to be included therein
within 15 days after the receipt by such Holder of any such notice; provided,
however, that if at any time after giving written notice of its intention to register any
securities and prior to the effective date of the Registration Statement, the Company shall
determine for any reason not to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to each Holder of Registrable
Shares and, thereupon, (i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Shares in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith); and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any Registrable Shares,
for the same period as the delay in registering such other securities. If the offering pursuant to
such Registration Statement is to be underwritten, then each Holder making a request for a
Piggyback Registration pursuant to this Section 2.5 must, and the Company shall make arrangements
with the underwriters so that each such Holder may, participate in such underwritten offering. If
the offering pursuant to such Registration Statement is to be on any other basis, then each Holder
making a request for a Piggyback Registration pursuant to this Section 2.6 must, and the Company
will make arrangements so that each such Holder may, participate in such offering on such basis.
Each Holder of Registrable Shares shall be permitted to withdraw all or part of such Holder’s
Registrable Shares from a Piggyback Registration at any time prior to the effective date thereof.
2.7. Restrictions.
(a) The Company may postpone for up to a total of 120 days the filing or the effectiveness
of, or suspend for up to a total of 120 days the effectiveness of, a Registration Statement for a
Demand Registration if the Company reasonably believes in its good faith
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judgment that the initial filing, initial effectiveness or continued use of such Demand
Registration would require the Company to make any Adverse Disclosure. Any such determination
shall be evidenced by a resolution of the Board of Directors of the Company and delivered at such
time to the Holders. Notwithstanding any term of Section 2.4 or 2.7, in no event may the Company
exercise the rights under Section 2.4 or 2.6 to cause preemption or postponement of the filing of a
Registration Statement or postponement or suspension of the effectiveness thereof for more than 45
consecutive days. Notwithstanding anything to the contrary herein, the Company shall not be
entitled to exercise its right to postpone the filing or postpone or suspend the effectiveness of a
Registration Statement for a Demand Registration pursuant to this Section 2.7 more than three times
in any 24-month period, with each such exercise of this right to be separated by no less than 180
days.
(b) The Company shall immediately notify the Holders upon the termination of any Demand
Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue
statement or omission therein and furnish to the Holders such numbers of copies of the Prospectus
as so amended or supplemented as the Holders may reasonably request.
2.8. Selection of Underwriters. If a Demand Registration involves an underwritten
offering comprising solely of Registrable Securities, the underwriter or underwriters thereof shall
be selected by the Initiating Holders, provided that such underwriter or underwriters shall
be reasonably acceptable to the Company. If a Piggyback Registration involves an underwritten
offering comprising of securities of the Company and Registrable Securities, the underwriter or
underwriters thereof shall be selected by the Company, provided that such underwriter or
underwriters shall be reasonably acceptable to the participating Holders. In all other cases, the
underwriter or underwriters thereof shall be selected by the Company.
3. Registration Procedures. Whenever the Initiating Holders have made a Notice of
Demand, the Company shall use all reasonable and diligent efforts to effect the registration and
sale of such Registrable Shares in accordance with the intended method or methods of disposition
thereof and, pursuant thereto, the Company shall as expeditiously as possible:
(a) prepare and (as soon thereafter as possible but in any event no later than 120 days from
the date of the Notice of Demand) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its reasonable best efforts to cause such Registration Statement to
become effective, provided that the Company may discontinue any registration of its securities
that are no longer Registrable Shares, and provided that as far in advance as practicable
before filing a Registration Statement or Prospectus, or any amendments or supplements thereto, the
Company shall furnish copies of all such documents proposed to be filed to counsel for the Holders;
(b) use the Company’s reasonable efforts to prepare and file with the Commission such
amendments and supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective until the completion of
the distribution of all Registrable Shares included therein but no more than 120 days, except in
the case that Initiating Holders have requested that an F-3 registration be on a delayed and
continuous basis pursuant to Rule 415 (or any successor
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rule) for which such period shall be the earlier of three years or until the date on which all
securities registered under such Registration Statement have been sold or withdrawn (excluding in
each case any period during which any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court interfering with the Registration Statement is in
effect with respect to such Registration Statement) or cease to be Registrable Shares and comply
with the provisions of the applicable securities laws with respect to the sale or other disposition
of all securities covered by such Registration Statement during such period in accordance with the
intended method or methods of disposition by the sellers thereof set forth in such Registration
Statement;
(c) furnish to each seller of Registrable Shares such number of copies of such Registration
Statement, each amendment and supplement thereto, the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and any other prospectus filed under Rule 424
promulgated under the Securities Act relating to such Holder’s Registrable Shares, in conformity
with the requirements of the Securities Act, and such other documents as such seller may reasonably
request to facilitate the disposition of its Registrable Shares under such Registration Statement;
(d) use all reasonable and diligent efforts to register or qualify such Registrable Shares
under the securities laws of such jurisdictions as the Holders reasonably request and keep such
registration or qualification in effect for so long as such Registration Statement remains in
effect, and do any and all other acts and things which may be reasonably necessary or advisable to
enable the sellers of Registrable Shares to consummate the disposition in such jurisdictions of
such securities owned by such sellers, provided that the Company shall not be required to
(i) qualify generally to do business as a foreign corporation in any jurisdiction where it would
not otherwise be required to qualify but for this subparagraph; (ii) subject itself to taxation in
any such jurisdiction; or (iii) consent to general service of process in any such jurisdiction;
(e) as soon as practicable notify each seller of Registrable Shares at any time when a
Prospectus relating thereto is required to be delivered under the applicable securities laws, upon
discovery of or upon the happening of any event as a result of which the Prospectus included in
such Registration Statement contains an untrue statement of a material fact or omits any 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, and, at the request of any such seller,
the Company shall promptly prepare and furnish to each such seller a reasonable number of copies of
a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of
such securities, such Prospectus shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading,
provided that upon receipt of any notice delivered in accordance with the provisions of
this Section 3(e), each Holder of Registrable Shares shall be deemed to have agreed that such
Holder shall forthwith discontinue such disposition of Registrable Shares pursuant to such
Registration Statement and Prospectus until the receipt of the copies of the supplemented or
amended Prospectus contemplated by this Section 3(e) and, if so directed by the Company, shall
deliver to the Company all copies, other than permanent file copies, then in its possession of the
Prospectus relating to such Registrable Shares current at the time of receipt of such notice;
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(f) cause all such Registrable Shares to be listed, on or prior to the effective date of such
Registration Statement, on each national securities exchange or national market on which shares of
Ordinary Shares are then listed;
(g) enter into such agreements (including underwriting agreements) as the underwriters or
their counsel reasonably request in order to expedite or facilitate the disposition of such
Registrable Shares and, to the extent reasonably requested by the managing underwriters of any
underwritten offering, send appropriate officers of the Company to attend “road shows” scheduled in
connection therewith;
(h) make available for inspection by any underwriter participating in any sale or other
disposition pursuant to such Registration Statement, and any attorney, accountant or other agent
retained by any such underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company’s officers, directors, employees and
independent accountants (subject to any requesting party executing a “hold harmless” letter or any
other document reasonably requested by such independent accountants to furnish such information) to
supply all information reasonably requested by any such underwriter, attorney, accountant or agent
in connection with such Registration Statement (including the opportunity to discuss the business
of the Company with its officers and the independent public accountants who have certified its
financial statements) as shall be necessary, in the opinion of their respective counsel, to conduct
a reasonable investigation within the meaning of the Securities Act; give the Holders, the
underwriters and their respective attorneys, accountants or agents the opportunity to participate
in the preparation of such Registration Statement, each Prospectus included therein or each
Prospectus filed with the Commission in connection therewith;
(i) promptly notify each seller of Registrable Shares and each underwriter, if any:
(i) when such Registration Statement or any Prospectus used in connection therewith has been
filed and, with respect to such Registration Statement or any post-effective amendment thereto,
when the same has become effective;
(ii) of any written comments from the Commission with respect to any filing referred to in
clause (i) and of any written request by the Commission for amendments or supplements to such
Registration Statement or Prospectus;
(iii) of the notification to the Company by the Commission or any other regulatory authority
of its initiation of any proceeding with respect to, or of the issuance by the Commission or any
other regulatory authority of, any stop order suspending the effectiveness of such Registration
Statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Shares for sale under the applicable securities or blue sky laws
of any jurisdiction;
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and, in the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts
(A) to respond satisfactorily to any such comments and to file promptly any necessary amendments or
supplements; (B) to prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued; and (C) to obtain the withdrawal of any such suspension of qualification,
respectively;
(j) otherwise use all reasonable and diligent efforts to comply with all applicable securities
laws and make available to its security holders, as soon as reasonably practicable an earning
statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(k) cooperate with the Holders and each underwriter or agent participating in the disposition
of such Registrable Shares and their respective counsel in connection with any filings required to
be made with Financial Industry Regulatory Authority; and
(l) in the case of an underwritten offering, use reasonable efforts to cause the senior
executive officers of the Company to participate in the customary “road show” presentations that
may be reasonably requested by the managing underwriter or underwriters in any such underwritten
offering and otherwise to facilitate, cooperate with, and participate in each proposed offering
contemplated herein and customary selling efforts related thereto.
In the event the Company shall give any notice referred to in Section 3(e) above, the period
referred to in Section 3(b) above shall be extended by a number of days equal to the number of days
during the period from the date of the giving of such notice to such sellers to and including the
date when each such seller receives the copies of the supplemented or amended Prospectus
contemplated by Section 3(e) above.
4. Registration Expenses. All expenses incident to the Company’s performance of or
compliance with this Agreement, including without limitation (a) all registration, filing and
listing fees and all fees of FINRA; (b) all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws; (c) all word processing, duplicating,
printing, messenger and delivery expenses of the Company (including, without limitation, expenses
of printing certificates for the Registrable Shares in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses); (d) the reasonable fees and disbursements
of counsel for the Company and of its independent public accountants, including, without
limitation, the expenses of any “comfort letters” required by or incident to such performance and
compliance but excluding audit or other similar fees related to the preparation, review or audit of
the Company’s financial statements and Periodic Reports; (e) any reasonable fees and disbursements
of underwriters customarily paid by issuers or sellers of securities including, without limitation,
reasonable fees and disbursements of counsel for the underwriter or underwriters or selling Holders
in connection with blue sky qualifications of the Registrable Shares and determination of their
eligibility for investment under the laws of such jurisdictions; and (f) reasonable fees and
expenses of other Persons retained or employed by the Company (all such expenses being herein
called “Registration Expenses”), shall be borne by the Holders on a pro rata basis based on
the number of Registrable Shares included in such registration.
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5. Other Agreements. If requested by the underwriters for any underwritten offering
pursuant to a Demand Registration or Piggyback Registration, the Company shall enter into an
underwriting agreement with such underwriter for such offering, such agreement to contain such
representations, warranties, agreements, indemnity and contribution provision by the Company and
such other terms as are generally prevailing in agreements of this type (including, without
limitation, an agreement to provide an opinion of counsel and a “comfort letter” to each
underwriter, in each case in form and substance reasonably satisfactory to each such underwriter).
In any such case, the Company shall allow Initiating Holders and their counsel to participate in
the negotiation of such underwriting agreement, and approve its terms, such approval not to be
unreasonably withheld. Any such Initiating Holders of Registrable Shares shall not be required to
make any representations or warranties to or agreements with the Company other than
representations, warranties or agreements regarding such Holder, such Holder’s Registrable Shares
and such Holder’s intended method of distribution and any other representation required by law or
as reasonably requested by the underwriters. No Person may participate in any registration
hereunder which is underwritten unless such Person (i) agrees to sell its securities on the basis
provided in such underwriting agreements; and (ii) completes and executes all questionnaires,
powers of attorney (which may contain customary terms regarding the minimum price of the
Registrable Shares to be sold in the subject offering), custody agreements, indemnities and other
documents reasonably required under the terms of such underwriting agreements.
6. Rule 144. The Company covenants that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports, it will, upon the
request of any Holder of Registrable Shares, make publicly available such necessary information for
so long as necessary to permit sales pursuant to Rule 144 under the Securities Act), and it will
take such further action as any Holder of Registrable Shares may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable Shares without
Registration under the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of any Holders of Registrable
Shares, the Company will deliver to such Holder a written statement as to whether it has complied
with such requirements.
7. Miscellaneous.
7.1. No Inconsistent Agreements. The Company is not a party to any agreement with
respect to its securities which is inconsistent with the rights granted to the Holders of
Registrable Shares by this Agreement and, other than the registration rights granted as provided
herein, has not granted to any party rights with respect to the registration of any Registrable
Shares or any other securities issued or to be issued by it. The Company shall not hereafter enter
into any agreement with respect to its securities which is in conflict with the rights granted to
the Holders of Registrable Shares in this Agreement.
7.2. Authority; Enforceability. Each party to this Agreement has the corporate power
and authority to enter into this Agreement and to carry out its obligations hereunder. Each party
is duly organized and validly existing under the laws of its jurisdiction of organization, and
11
the execution of this Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all necessary action, and no other act or proceeding, corporate or
otherwise, on its part is necessary to authorize the execution of this Agreement or the
consummation of any of the transactions contemplated hereby. This Agreement has been duly executed
by each party and constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms of this Agreement, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of creditors generally and to the
exercise of judicial discretion in accordance with general principles of equity (whether applied by
a court of law or of equity).
7.3. Amendments and Waivers. This Agreement may be amended, supplemented or modified
at any time, and any term or condition of the Agreement may be waived at any time by the party
hereto that is entitled to the benefit thereof, in each case by a written instrument duly executed
by Holders of a majority of the Registrable Shares. No waiver by any party of any term or
condition of this Agreement, in one or more instances, shall be deemed to be or construed as a
waiver of the same term or condition of this Agreement on any future occasion, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at law
or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. Each Holder of any Registrable Shares at the time or
thereafter outstanding shall be bound by any amendment, modification, waiver or consent authorized
by this Section, whether or not such Registrable Shares shall have been marked accordingly.
7.4. Successors and Assigns. The terms and provisions of this Agreement shall be
binding on and inure to the benefit of each of the parties hereto and their respective successors.
Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any
Person (other than each other Person entitled to indemnity or contribution under Section 6 hereof)
any right, remedy or claim under or by virtue of this Agreement.
7.5. Assignment; Assumption.
(a) Except by operation of law, this Agreement shall not be assigned by any party without the
prior written consent of the other parties hereto, provided that the Holders may assign
their rights hereunder (including, without limitation, under Section 6) to any Person by giving
notice of such assignment to the Company as herein provided and causing such assignee to agree in
writing be bound by the provisions of this Agreement. Any assignment made in violation of the
foregoing shall be null and void for all purposes.
7.6. Term. This Agreement shall terminate on the date as of which all the Registrable
Shares have been sold pursuant to any Demand Registration and/or Piggyback Registration hereunder
(but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act
and Rule 174 thereunder) or when all Ordinary Shares cease to be Registerable Shares as defined
herein, except for Sections 4 and 6, which shall survive.
7.7. Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law, (a) such provision shall be fully
12
severable; (b) this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance here from; and (d) in lieu of such illegal, invalid
or unenforceable provision, there shall be added automatically as a part of this Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
7.8. Notices. All notices, requests and other communications hereunder must be in
writing and shall be deemed to have been duly given only if (a) delivered personally; (b) given by
facsimile transmission; (c) mailed by FedEx or other nationally
recognized courier service; or (d) mailed (first class postage prepaid) to the parties at the following addresses or facsimile
numbers:
If to the Company, to:
MIE Holdings Corporation
Xxxxx 000, Xxxxx X Xxxxx Xxxxx
0 Xxx Xxxxx Xxxx
Chaoyang District, Beijing 100101
PRC
Facsimile: (8610) 5123 8866
Attention: Xx. Xxxxx Ruilin
Xxxxx 000, Xxxxx X Xxxxx Xxxxx
0 Xxx Xxxxx Xxxx
Chaoyang District, Beijing 100101
PRC
Facsimile: (8610) 5123 8866
Attention: Xx. Xxxxx Ruilin
If to TPG, to:
TPG Star Energy Ltd.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxx
TPG Star Energy Ltd.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxx
with a copy to:
TPG Growth Capital (Asia) Limited
57th Floor, Two International Finance Centre
0 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
Fax: (000) 0000-0000
Attention: Mr. Xxxxxxx Xxx
57th Floor, Two International Finance Centre
0 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
Fax: (000) 0000-0000
Attention: Mr. Xxxxxxx Xxx
If to Sino Link Limited to:
x/x 00/X, Xxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx, Xxxxxxx 100004 PRC
Fax: (8610) 0000 0000
Attention: Xx. Xx Chunqing
x/x 00/X, Xxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx, Xxxxxxx 100004 PRC
Fax: (8610) 0000 0000
Attention: Xx. Xx Chunqing
13
7.9. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
7.10. Injunctive Relief. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damage that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such
Person shall, therefore, be entitled (in addition to any other remedy to which it may be entitled
in law or in equity) to injunctive relief, including, without limitation, specific performance, to
enforce such obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law.
7.11. Attorneys’ Fees. In any action or proceeding brought to enforce any provision
of this Agreement or where any provision hereof is validly asserted as a defense, the successful
party shall, to the extent permitted by applicable law, be entitled to recover reasonable
attorneys’ fees in addition to any other available remedy.
7.12. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument.
[Signature page follows]
14
The parties hereto have executed this Agreement on the date first set forth above.
| MIE Holdings Corporation |
||||
| By | /s/ | |||
| Name: | ||||
| Title: | ||||
15
| TPG Star Energy Ltd. |
||||
| By | /s/ | |||
| Name: | ||||
| Title: | ||||
| TPG Star Energy Co-Invest, LLC |
||||
| By | /s/ | |||
| Name: | ||||
| Title: | ||||
16
| Sino Link Limited |
||||
| By | /s/ | |||
| Name: | ||||
| Title: | ||||
17
