REGISTRATION RIGHTS AGREEMENT dated as of May 28, 2008 between SHENGDATECH, INC. and OPPENHEIMER & CO. INC. as representative of the Initial Purchasers
May
28, 2008
REGISTRATION
RIGHTS AGREEMENT
dated
as of May 28, 2008
between
and
XXXXXXXXXXX
& CO. INC.
as
representative of the Initial Purchasers
REGISTRATION
RIGHTS AGREEMENT (“Agreement”)
dated
as of May 28, 2008 between ShengdaTech, Inc., a Nevada corporation (the
“Company”),
and
Xxxxxxxxxxx & Co. Inc., as representative of the several initial purchasers
listed on Schedule I (the “Initial
Purchasers”)
to the
Purchase Agreement dated as of May 22, 2008 (the “Purchase
Agreement”)
with
the Company. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition
to
the closing under the Purchase Agreement.
The
Company agrees with the Initial Purchasers, (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners (including the
Initial Purchasers) from time to time of the Securities (as defined herein)
and
the beneficial owners from time to time of the Underlying Securities (as defined
herein) issued upon conversion of the Securities (each of the foregoing a
“Holder”
and
together the “Holders”),
as
follows:
Section
1.
Definitions. Capitalized
terms used herein without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
“Additional
Filing Deadline”
has
the
meaning set forth in Section
2(f)(iv)
hereof.
“Additional
Interest Amount”
has
the
meaning set forth in Section
2(f)
hereof.
“Affiliate”
means
with respect to any specified person, an “affiliate,” as defined in Rule 144, of
such person.
“Amendment
Effectiveness Deadline”
has
the
meaning set forth in Section
2(e)
hereof.
“Business
Day”
means
any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
“Conversion
Price”
has
the
meaning assigned such term in the Indenture.
“Deferral
Notice”
has
the
meaning set forth in Section
3(h)
hereof.
“Deferral
Period”
has
the
meaning set forth in Section
3(h)
hereof.
“Effectiveness
Deadline”
has
the
meaning set forth in Section
2(a)
hereof.
2
“Effectiveness
Period”
means
the period commencing on the first date that a Shelf Registration Statement
is
declared effective under the Securities Act hereof and ending on the date that
all Securities and the Underlying Securities have ceased to be Registrable
Securities.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Free
Writing Prospectus”
has
the
meaning set forth in Rule 405.
“Holder”
has
the
meaning set forth in the second paragraph of this Agreement.
“Indenture”
means
the Indenture dated as of the date hereof between the Company and The Bank
of
New York, as trustee, pursuant to which the Securities are being
issued.
“Initial
Purchasers”
means
the Initial Purchasers named in Schedule I to the Purchase
Agreement.
“Interest
Payment Date”
means
each June 1 and December 1 of each year.
“Issue
Date”
means
the latest date of original issuance of the Securities.
“Issuer
Free Writing Prospectus”
has
the
meaning set forth in Rule 433.
“Material
Event”
has
the
meaning set forth in Section
3(h)
hereof.
“Notice
and Questionnaire”
means
a
written notice delivered to the Company containing substantially the information
called for by the Selling Securityholder Notice and Questionnaire attached
as
Annex A to the Offering Memorandum of the Company dated as of May 22, 2008
relating to the Securities.
“Notice
Holder”
means,
on any date, any Holder that has delivered a Notice and Questionnaire to the
Company on or prior to such date; provided
not all
of such Holder’s Registrable Securities that have been registered for resale
pursuant to a Notice and Questionnaire have been sold in accordance with a
Shelf
Registration Statement.
“Prospectus”
means
a
prospectus relating to a Shelf Registration Statement, as amended or
supplemented, and all materials incorporated by reference in such
Prospectus.
3
“Purchase
Agreement”
has
the
meaning set forth in the preamble hereof.
“Record
Date”
means
each May 15 and November 15 of each year.
“Record
Holder”
means
with respect to any Interest Payment Date relating to any Securities as to
which
any Additional Interest Amount has accrued, the registered holder of such
Security at the close of business on the Record Date immediately preceding
the
Interest Payment Date.
“Registrable
Securities”
means
the Securities until such Securities have been converted into or exchanged
for
the Underlying Security, and at all times subsequent to any such conversion
or
exchange, the Underlying Security and any securities into or for which such
Underlying Security has been converted or exchanged, and any security issued
with respect thereto upon any shares dividend, split or similar event
until,
in the
case of any such security, (A) the earliest of (i) one year from the latest
date
of original issuance of the Securities, (ii) the date of its effective
registration under the Securities Act and resale in accordance with a Shelf
Registration Statement, (iii) the date on which all such securities held by
non-affiliates are eligible to be sold to the public pursuant to Rule 144 under
the Securities Act, (iv) the date on which such securities cease to be
outstanding, and (B) as a result of the event or circumstance described in
any
of the foregoing clauses (i) through (iv), the legend with respect to transfer
restrictions required under the Indenture is removed or removable in accordance
with the terms of the Indenture or such legend, as the case may be.
“Registration
Default”
has
the
meaning set forth in Section
2(f)
hereof.
“Registration
Default Period”
has
the
meaning set forth in Section
2(f)
hereof.
“Rule
144”
means
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“Rule
144A”
means
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“Rule
405”
means
Rule 405 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“Rule
424”
means
Rule 424 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
4
“Rule
433”
means
Rule 433 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
“SEC”
means
the Securities and Exchange Commission.
“Securities”
means
the 6.0% Convertible Senior Notes due 2018 of the Company to be purchased
pursuant to the Purchase Agreement, including any Securities purchased by the
Initial Purchasers upon exercise of their options to purchase additional
Securities.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“Shares”
means
the shares of common stock of the Company, US$0.00001 par value per share,
and
any other shares of the Company as may constitute “Shares” for purposes of the
Indenture.
“Shelf
Registration Statement”
has
the
meaning set forth in Section
2(a)
hereof,
including amendments to such registration statement, all exhibits to such
registration statement and all materials incorporated by reference in such
registration statement.
“Special
Counsel”
means
Cadwalader Xxxxxxxxxx & Xxxx LLP or one such other successor counsel as
shall be specified by the Holders of a majority of the Registrable Securities,
but which may, with the written consent of the Initial Purchasers (which shall
not be unreasonably withheld), be another nationally recognized law firm
experienced in securities law matters designated by the Company. For purposes
of
determining Holders of a majority of the Registrable Securities in this
definition, Holders of Securities shall be deemed to be the Holders of the
number of shares of Underlying Securities into which such Securities are or
would be convertible as of the date the consent is requested.
“Trustee”
means
The Bank of New York, the Trustee under the Indenture.
“Underlying
Security”
means
the Shares into which the Securities are convertible or issued upon any such
conversion.
Section
2.
Shelf Registration. (a)
(i) The
Company shall prepare and file or cause to be prepared and filed with the SEC,
as soon as practicable after the Issue Date, a registration statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of
the
Securities Act registering the resale from time to time by Holders of the
Registrable Securities (a “Shelf
Registration Statement”).
The
Shelf Registration Statement shall be on Form F-3 or another appropriate form
permitting registration of the Registrable Securities for resale by the Holders
in accordance with the methods of distribution elected by the Holders and set
forth in the Shelf Registration Statement. Each Shelf Registration Statement
that is filed on Form F-3 shall be designated by the Company as an Automatic
Shelf Registration Statement if the Company is then eligible to file an
Automatic Shelf Registration Statement on Form F-3 for the purposes contemplated
by this Agreement. If the Company is eligible pursuant to Rule 430B(b) to omit
from the related Prospectus the identities of selling securityholders and the
amounts of securities to be registered on their behalf, the Company shall
prepare and file each Shelf Registration Statement in a manner as to permit
such
omission and to allow for the subsequent filing of such information in a
Prospectus pursuant to Rule 424(b) in the manner contemplated by Rule 430B(d).
The Company shall use reasonable best efforts to cause a Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
is
practicable but in any event by the date (the “Effectiveness
Deadline”)
that
is the 185th day after the Issue Date, and to keep a Shelf Registration
Statement continuously effective under the Securities Act until the expiration
of the Effectiveness Period (except to the extent permitted under Section 3(h)).
Each Holder that became a Notice Holder on or prior to the date ten Business
Days prior to the date the initial Shelf Registration Statement is declared
effective shall be named as a selling securityholder in the initial Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver the Prospectus to purchasers of Registrable Securities
in
accordance with applicable law, assuming the accuracy of the information in
such
Holder’s Notice and Questionnaire;
and
(ii) notwithstanding anything to the contrary contained herein, the Company
shall not be obligated to file, have declared effective or maintain an effective
Shelf Registration Statement as set forth in the preceding clause (a)(i) to
the
extent and during the periods that the Securities and any Underlying Securities
are eligible to be sold by a person who is not an affiliate of the Company
pursuant to Rule 144 (or any other similar provision then in force (other than
Rule 144A)) under the Securities Act without any volume or manner of sale
restrictions thereunder after six months following the Issue Date; provided,
however,
that
the Company shall be obligated to file, have declared effective or maintain
an
effective Shelf Registration Statement as set forth in clause (a)(i) to the
extent and during the periods that the Securities and any Underlying Securities
are not so eligible to be sold by a person who is not an affiliate of the
Company pursuant to Rule 144 (or any other similar provision then in force
(other than Rule 144A)) under the Securities Act without any volume or manner
of
sale restrictions thereunder after six months following the Issue Date;
provided further
that the
Company shall notify the Holders by issuing a press release (which will also
be
delivered to the Trustee) if a person who is not an affiliate of the Company
may
not so sell the Securities or Underlying Securities pursuant to Rule 144 (or
any
other similar provision then in force (other than Rule 144A)) under the
Securities Act without any volume or manner of sale restrictions
thereunder.
5
(b) If
a
Shelf Registration Statement covering resales of the Registrable Securities
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all securities registered thereunder shall have
been
resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), in each case except to the extent permitted under Section 3(h),
the
Company shall use reasonable best efforts to obtain the prompt withdrawal of
any
order suspending the effectiveness thereof, and in any event shall within 40
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
so
that all Registrable Securities outstanding as of the date of such filing are
covered by a Shelf Registration Statement. If a new Shelf Registration Statement
is filed, the Company shall use reasonable best efforts to cause the new Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep the new Shelf Registration Statement continuously
effective until the end of the Effectiveness Period (except to the extent
permitted under Section 3(h)).
(c) Subject
to Section 2(e)(i), the Company shall amend and supplement the Prospectus and
amend the Shelf Registration Statement if such Prospectus and Shelf Registration
Statement has been filed and if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or file a new Shelf Registration Statement, if
required by the Securities Act, or any other documents necessary to name a
Notice Holder as a selling securityholder pursuant to Section
2(e)
below.
(d) The
Company agrees that, unless it obtains the prior consent of the Holders of
a
majority of the Registrable Securities that are registered under the Shelf
Registration Statement at such time or the consent of the managing underwriters
in connection with any underwritten offering of Registrable Securities, and
each
Holder agrees that, unless it obtains the prior written consent of the Company
and any such underwriters, it will not make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a Free Writing Prospectus required to be filed with the SEC. The
Company represents that any Issuer Free Writing Prospectus prepared by it or
authorized by it in writing for use by such Holder will not include any
information that conflicts with the information contained in the Shelf
Registration Statement or the Prospectus and, any such Issuer Free Writing
Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a
material fact or omit 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. Notwithstanding the foregoing, neither the Holders nor the
managing underwriters shall use such Free Writing Prospectus without the prior
written consent of the Company.
6
(e) Each
Holder may sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus only in accordance with this Section
2(e)
and
Section
3(f).
Each
Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus shall deliver a Notice and Questionnaire to
the
Company at least 10 Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement. From and after
the date the initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable after the date a fully completed
Notice and Questionnaire is delivered, and in any event upon the later of (x)
5
Business Days after such date or (y) 5 Business Days after the expiration of
any
Deferral Period in effect when the fully completed Notice and Questionnaire
is
delivered or put into effect:
(i) if
required by applicable law, file with the SEC a post-effective amendment to
the
Shelf Registration Statement or prepare and, if required by applicable law,
file
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file a new Shelf Registration
Statement or any other required document so that the Holder delivering such
fully completed Notice and Questionnaire is named as a selling securityholder
in
a Shelf Registration Statement and the related Prospectus in such a manner
as to
permit such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law; provided
that if
a post-effective amendment or a new Shelf Registration Statement is required
by
the rules and regulations of the SEC in order to permit resales by such Notice
Holder, the Company shall not be required to file more than one (1)
post-effective amendment or new Shelf Registration Statement for such purpose
in
any 60 day period; provided
further
that in
no event shall the Company be obligated to file more than one such supplement
in
any 60 day period; and, if the Company shall file a post-effective amendment
to
a Shelf Registration Statement or shall file a new Shelf Registration Statement,
the Company shall use reasonable best efforts to cause such post-effective
amendment or new Shelf Registration Statement to be declared effective under
the
Securities Act as promptly as is practicable, but in any event by the date
(the
“Amendment
Effectiveness Deadline”)
that
is 45 days after the date such post-effective amendment or new Shelf
Registration Statement is required by this clause to be filed with the
SEC;
(ii) provide
such Holder, upon request, with a reasonable number of copies of any documents
filed pursuant to Section
2(e)(i);
and
(iii) notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any new Shelf Registration Statement or post-effective
amendment filed pursuant to Section
2(e)(i);
7
provided
that if
such Notice and Questionnaire is delivered during a Deferral Period, or a
Deferral Period is put into effect within ten Business Days after the date
such
Holder became a Notice Holder, the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall, subject to the limitations of this
Section
2(e)
take the
actions set forth in clauses (i), (ii) and (iii) above upon expiration of the
Deferral Period in accordance with Section
3(h).
Notwithstanding anything contained herein to the contrary, (i) the Company
shall
be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline shall be extended by up to 15
Business Days from the expiration of a Deferral Period.
(f) The
parties hereto agree that the Holders of Registrable Securities will suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if:
(i) a
Shelf
Registration Statement has not been declared effective under the Securities
Act
on or prior to the Effectiveness Deadline;
(ii) the
Company has failed to perform its obligations set forth in Section
2(e)(i)
within
the time period required therein (taking into account the last sentence of
Section
2(e));
(iii) a
new
Shelf Registration Statement or a post-effective amendment to a Shelf
Registration Statement filed pursuant to Section
2(e)(i)
has not
become effective under the Securities Act on or prior to the Amendment
Effectiveness Deadline (taking into account the last sentence of Section
2(e));
(iv) a
supplement to a Prospectus is required to be filed with the SEC pursuant to
Section
2(e)(i)
and
fails to be filed with the SEC within the prescribed period and in the manner
set forth in Section
2(e)
above (a
date such filing is required to be made, an “Additional
Filing Deadline”);
or
(v) the
aggregate duration of Deferral Periods in any period exceeds the number of
days
permitted in respect of such period pursuant to Section
3(h)
hereof.
8
Each
event described in any of the foregoing clauses (i) through (v) is individually
referred to herein as a “Registration
Default.”
For
purposes of this Agreement, each Registration Default set forth above shall
begin and end on the dates set forth in the table set forth below:
|
Type
of Registration Default by Clause
|
Beginning
Date
|
Ending
Date
|
||
|
(i)
|
Effectiveness
Deadline
|
the
date a Shelf Registration Statement becomes effective under the Securities
Act
|
||
|
(ii)
|
the
date by which the Company is required to perform its obligations
under
Section
2(e)(i)
(taking into account the last sentence of Section
2(e))
|
the
date the Company performs its obligations set forth in Section
2(e)(i)
|
||
|
(iii)
|
the
Amendment Effectiveness Deadline (taking into account the last sentence
of
Section
2(e))
|
the
date the applicable post-effective amendment to a Shelf Registration
Statement or a new Shelf Registration Statement becomes effective under
the Securities Act
|
||
|
(iv)
|
the
Additional Filing Deadline
|
the
date the applicable supplement to a Prospectus is filed with the
SEC in
the manner set forth in Section
2(e)
|
||
|
(v)
|
the
date on which the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted by Section
3(h)
|
termination
of the Deferral Period that caused the limit on the aggregate duration
of
Deferral Periods to be exceeded
|
For
purposes of this Agreement, Registration Defaults shall begin on the dates
set
forth in the table above and shall continue until the ending dates set forth
in
the table above.
Subject
to Section 2(a)(ii), commencing on (and including) any date that a Registration
Default has begun and ending on (but excluding) the next date on which there
are
no Registration Defaults that have occurred and are continuing (a “Registration
Default Period”),
the
Company shall pay to Record Holders of Registrable Securities in respect of
each
day in the Registration Default Period, additional interest in respect of any
Security, at a rate per annum equal to 0.25% of the aggregate principal amount
of such Security for the first 90 days of such Registration Default and a rate
per annum equal to 0.50% of the aggregate principal amount of such Security
thereafter (the “Additional
Interest Amount”);
provided
that in
the case of a Registration Default Period that is in effect solely as a result
of a Registration Default of the type described in clause (ii), (iii) or (iv)
of
the preceding paragraph, such Additional Interest Amount shall be paid only
to
the Holders (as set forth in the succeeding paragraph) that have delivered
Notices and Questionnaires that caused the Company to incur the obligations
set
forth in Section
2(e)
the
non-performance of which is the basis of such Registration Default.
Notwithstanding the foregoing, no Additional Interest Amount shall accrue as
to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security (y) the date, and to the extent,
a
Security is converted in accordance with the Indenture and (z) expiration of
the
Effectiveness Period. The rate of accrual of the Additional Interest Amount
with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Registration Defaults.
All
installments of additional interest shall be paid by wire transfer of
immediately available funds to the account specified by the Notice Holder or,
if
no such account is specified, by mailing a check to such Notice Holder’s address
shown in the register of the registrar for the Notes or, with respect to any
Notes that have been converted, such Notice Holder’s mailing address as shown on
its Notice and Questionnaire.
9
The
Additional Interest Amount shall accrue from the first day of the applicable
Registration Default Period, and shall be payable on each Interest Payment
Date
during the Registration Default Period (and on the Interest Payment Date next
succeeding the end of the Registration Default Period if the Registration
Default Period does not end on a Interest Payment Date) to the Record Holders
of
the Registrable Securities entitled thereto; provided
that any
Additional Interest Amount accrued with respect to any Security or portion
thereof redeemed by the Company on a redemption date, purchased by the Company
on a repurchase date or converted into Underlying Securities on a conversion
date prior to the Interest Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Security or portion thereof for
redemption, purchase or conversion on the applicable redemption date, repurchase
date or conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion), unless the redemption date
or
the repurchase date, as the case may be, falls after the Record Date immediately
preceding the Interest Payment Date and on or prior to the corresponding
Interest Payment Date; and provided
further,
that,
in the case of a Registration Default of the type described in clause (ii),
(iii) or (iv) of the first paragraph of this Section
2(f)
such
Additional Interest Amount shall be paid only to the Holders entitled thereto
by
check mailed to the address set forth in the Notice and Questionnaire delivered
by such Holder. The Trustee shall be entitled, on behalf of registered holders
of Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Additional Interest Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which additional
interest is expressly provided shall be such Additional Interest Amount. Nothing
shall preclude any Holder from pursuing or obtaining specific performance or
other equitable relief with respect to this Agreement.
ShengdaTech,
Inc.
10
All
of
the Company’s obligations set forth in this Section
2(f)
that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section
8(l)).
If a
Registrable Security ceases to be outstanding during a Registration Default
Period for which an Additional Interest Amount would be payable with respect
to
such Registrable Security, then the Additional Interest Amount payable hereunder
with respect to such Registrable Security shall be prorated on the basis of
the
number of full days such Registrable Security is outstanding during such
Registration Default Period.
The
parties hereto agree that the additional interest provided for in this
Section
2(f)
constitutes a reasonable estimate of the damages that may be incurred by Holders
of Registrable Securities by reason of the failure of a Shelf Registration
Statement to be declared effective or available for effecting resales of
Registrable Securities in accordance with the provisions hereof.
Section
3.
Registration Procedures. Subject
to Section 2(a)(ii), in connection with the registration obligations of the
Company under Section
2
hereof,
the Company shall:
(a) Before
filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Purchasers and the
Special Counsel of such offering, if any, copies of all such documents proposed
to be filed at least three Business Days prior to the filing of such Shelf
Registration Statement or amendment thereto or Prospectus or supplement
thereto.
(b) Subject
to Section
3(h),
prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective during the Effectiveness Period; cause the
related Prospectus to be supplemented by any required prospectus supplement,
and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and use its reasonable best efforts
to
comply with the provisions of the Securities Act applicable to it with respect
to the disposition of all securities covered by such Shelf Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so
supplemented.
ShengdaTech,
Inc.
Registration
Rights Agreement
11
(c) As
promptly as practicable give notice to the Notice Holders, the Initial
Purchasers and the Special Counsel, (i)
when any
Prospectus, prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with
the SEC and, with respect to a Shelf Registration Statement or any
post-effective amendment, when the same has been declared effective,
(ii)
of any
request, following the effectiveness of the initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Shelf Registration Statement
or
related Prospectus or for additional information, (iii)
of the
issuance by the SEC or any other federal or state governmental authority of
any
stop order suspending the effectiveness of any Shelf Registration Statement
or,
to the Company’s knowledge, the initiation or threatening of any proceedings for
that purpose, (iv)
of the
receipt by the Company of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or, to the Company’s knowledge, the
initiation or threatening of any proceeding for such purpose, (v)
after
the effective date of any Shelf Registration Statement filed with the SEC
pursuant to this Agreement, of the occurrence of, but not the nature of or
details concerning, a Material Event and (vi)
of the
determination by the Company that a post-effective amendment to a Shelf
Registration Statement will be filed with the SEC, which notice may, at the
discretion of the Company (or as required pursuant to Section
3(h))
state
that it constitutes a Deferral Notice, in which event the provisions of
Section
3(h)
shall
apply.
(d) Use
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Shelf Registration Statement or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment, and provide immediate
notice to each Notice Holder and the Initial Purchasers of the withdrawal of
any
such order.
(e) As
promptly as practicable, furnish to each Notice Holder, the Special Counsel
and
the Initial Purchasers, upon request and without charge, at least one conformed
copy of each Shelf Registration Statement and any amendment thereto, but
excluding exhibits and all documents incorporated or deemed to be incorporated
therein by reference (unless requested in writing to the Company by such Notice
Holder, Special Counsel or the Initial Purchasers).
ShengdaTech,
Inc.
Registration
Rights Agreement
12
(f) During
the Effectiveness Period, deliver to each Notice Holder, the Special Counsel,
if
any, and the Initial Purchasers, in connection with any sale of Registrable
Securities pursuant to a Shelf Registration Statement, without charge, as many
copies of the Prospectus relating to such Registrable Securities (including
each
preliminary prospectus) and any amendment or supplement thereto as such Notice
Holder may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been revoked)
to
the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto
in
the manner set forth therein.
(g) Prior
to
any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use reasonable best efforts to register or qualify
or
cooperate with the Notice Holders and the Special Counsel in connection with
the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or, if required, Blue Sky laws of such jurisdictions within the
United States as any Notice Holder reasonably requests in writing (which request
may be included in the Notice and Questionnaire); prior to any public offering
of the Registrable Securities pursuant to a Shelf Registration Statement, use
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder’s offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and
all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth
in
the Shelf Registration Statement and the related Prospectus; provided
that the
Company will not be required to (i)
qualify
as a foreign corporation or as a dealer in securities in any jurisdiction where
it would not otherwise be required to qualify but for this Agreement or
(ii)
take any
action that would subject it to general service of process in suits or to
taxation in any such jurisdiction where it is not then so subject.
(h) Upon
(A)
the issuance by the SEC of a stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of proceedings with respect to a Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B)
the
occurrence of any event or the existence of any fact (a “Material
Event”)
as a
result of which a Shelf Registration Statement shall 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 not misleading,
or
any Prospectus shall 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, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company, makes
it appropriate to suspend the availability of a Shelf Registration Statement
and
the related Prospectus:
ShengdaTech,
Inc.
Registration
Rights Agreement
13
(i) in
the
case of clause (B) above, subject to the immediately succeeding sentence, as
promptly as practicable prepare and file, if necessary pursuant to applicable
law, a post-effective amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Shelf Registration Statement and Prospectus so that such
Shelf Registration Statement does 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 not misleading, and so that such
Prospectus does 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, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder (it being understood that the
Company may rely on information with respect to a Notice Holder furnished in
writing by or on behalf of such Notice Holder to the Company for use in such
Prospectus), and, in the case of a post-effective amendment to a Shelf
Registration Statement, subject to the immediately succeeding sentence, use
reasonable best efforts to cause it to be declared effective as promptly as
is
practicable, and
(ii) give
notice to the Notice Holders, and the Special Counsel, if any, that the
availability of a Shelf Registration Statement is suspended (a “Deferral
Notice”).
The
Company will use reasonable best efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly
as is
practicable, (y) in the case of clause (B) above, as soon as, in the sole
judgment of the Company, public disclosure of such Material Event would not
be
prejudicial to or contrary to the interests of the Company or, if necessary
to
avoid unreasonable burden or expense, as soon as practicable thereafter and
(z)
in the case of clause (C) above, as soon as in the reasonable discretion of
the
Company, such suspension is no longer appropriate. The Company shall be entitled
to exercise its right under this Section
3(h)
to
suspend the availability of a Shelf Registration Statement or any Prospectus,
and any such period during which the availability of the Shelf Registration
Statement and any Prospectus is suspended (the “Deferral
Period”)
shall,
without incurring any obligation to pay additional interest pursuant to
Section
2(f),
not
exceed 45 days in any 90-day period (or 60 days in any 90-day period in the
event of a Material Event pursuant to which the Company has delivered a second
notice as required below) or 90 days in any 12 month period; provided
that in
the case of a Material Event relating to an acquisition or a probable
acquisition or financing, recapitalization, business combination or other
similar transaction, the Company may, without incurring any obligation to pay
additional interest pursuant to Section
2(f),
deliver
to Notice Holders a second notice to the effect set forth above, which shall
have the effect of extending the Deferral Period by up to an additional 30
days,
or such shorter period of time as is specified in such second
notice.
ShengdaTech,
Inc.
Registration
Rights Agreement
14
(i) If
requested in writing in connection with a disposition of Registrable Securities
pursuant to a Shelf Registration Statement, make reasonably available for
inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities, any broker-dealers, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties
of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence”
examinations; provided
that
such
persons shall first agree in writing with the Company that any non-public
information shall be used solely for the purposes of satisfying “due diligence”
obligations under the Securities Act and exercising rights under this Agreement
and shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative order
or
is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Shelf Registration Statement or the use of any prospectus referred to
in
this Agreement), (iii)
such
information becomes generally available to the public other than as a result
of
a disclosure or failure to safeguard by any such person or (iv)
such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement;
provided
further
that the
foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the Special Counsel. Any person legally compelled
to
disclose any such confidential information made available for inspection shall
provide the Company with prompt prior written notice of such requirement so
that
the Company may seek a protective order or other appropriate
remedy.
ShengdaTech,
Inc.
Registration
Rights Agreement
15
(j) Comply
with all applicable rules and regulations of the SEC and make generally
available to its securityholders earning statements covering a period of twelve
months (which need not be audited) satisfying the provisions of Section 11(a)
of
the Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) for a 12-month period commencing on the first day
of
the first fiscal quarter of the Company commencing after the effective date
of a
Shelf Registration Statement, which statements shall be made available no later
than 45 days after the end of the 12-month period or 90 days if the 12-month
period coincides with the fiscal year of the Company.
(k) If
electronic global certificates for the Registrable Securities are not then
available, cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
two Business Day prior to any sale of such Registrable Securities.
(l) Provide
a
CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement
and provide the Trustee and the transfer agent for the Shares with printed
certificates, if required, for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(m) Cooperate
and assist in any filings required to be made with the Financial Industry
Regulatory Authority, Inc. (“FINRA”).
(n) Upon
(i)
the
filing of the initial Shelf Registration Statement and (ii)
the
effectiveness of the initial Shelf Registration Statement, announce the same,
in
each case by release to Reuters Economic Services and Bloomberg Business
News.
Section
4.
Holder’s Obligations. (a)
Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
shall be entitled to sell any of such Registrable Securities pursuant to a
Shelf
Registration Statement or to receive a Prospectus relating thereto, unless
such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section
2(e)
hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to
be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder shall constitute a representation and warranty by such Holder
that
the information relating to such Holder and its plan of distribution is as
set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time
of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not
misleading.
ShengdaTech,
Inc.
Registration
Rights Agreement
16
(b) Upon
receipt of any Deferral Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to any Shelf Registration Statement until such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section
3(h)(i),
or
until it is advised in writing by the Company that the Prospectus may be
used.
Section
5.
Registration Expenses. The
Company shall bear all fees and expenses incurred in connection with the
performance by the Company of its obligations under Sections 2
and
3
of this
Agreement whether or not any Shelf Registration Statement is declared effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees including, without limitation, fees and expenses (x) with
respect to filings required to be made with the FINRA and (y) related to
compliance with federal and state securities or Blue Sky laws, if any
(including, without limitation, reasonable fees and disbursements of the Special
Counsel in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Shelf Registration Statement
may
designate), (ii) printing expenses (including, without limitation, expenses
of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), (iii) duplication expenses relating to
copies of any Shelf Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company in
connection with any Shelf Registration Statement, (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Shares, (vi) Securities Act liability insurance obtained by the
Company in its sole discretion and (vii) the fees and disbursements of Special
Counsel the selection of which shall be reasonably agreed by the Company. In
addition, the Company shall pay the internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing by the Company of
the
Registrable Securities on any securities exchange on which similar securities
of
the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of
this
Section
5,
each
seller of Registrable Securities shall pay any broker’s commission, agency fee
or underwriter’s discount or commission in connection with the sale of the
Registrable Securities under a Shelf Registration Statement.
ShengdaTech,
Inc.
Registration
Rights Agreement
17
Section
6.
Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Initial Purchaser, each
Notice Holder, each person, if any, who controls any Initial Purchaser or Notice
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, and each affiliate of any Initial Purchaser or Notice
Holder within the meaning of Rule 405 under the Securities Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any Shelf
Registration Statement or any amendment thereof, any preliminary prospectus
or
any Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any Issuer Free Writing Prospectus
prepared by it or authorized by it in writing for use by such Notice Holder
(as
amended or supplemented if the Company shall have furnished any amendments
or
supplements thereto), caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission
or
alleged untrue statement or omission based upon information relating to any
Initial Purchaser or Notice Holder furnished to the Company in writing by,
or on
behalf of, such Initial Purchaser or Notice Holder expressly for use therein;
provided
that
the
foregoing indemnity shall not inure to the benefit of any Notice Holder (or
to
the benefit of any person controlling such Notice Holder) from whom the person
asserting such losses, claims or liabilities purchased the Registrable
Securities, if a copy of the Prospectus or the Issuer Free Writing Prospectus
(both as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of
such
Notice Holder to such person,
if
required by law so to have been delivered at or prior to the written
confirmation of the sale of the Registrable Securities to such person, and
if
the Prospectus or the Issuer Free Writing Prospectus (both as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance
by
the Company with Section
2(b)
hereof;
provided further
that no
Initial Purchaser or Holder shall be entitled to this indemnity to the extent,
and only to the extent, such loss, damage, expense, liability, claim or action
arises out of a disposition, pursuant to a Shelf Registration Statement, of
Registrable Securities by such Initial Purchaser or Holder during a Deferral
Period, provided such Initial Purchaser or Holder received, prior to such
disposition, a Deferral Notice with respect to such Deferral
Period.
ShengdaTech,
Inc.
Registration
Rights Agreement
18
(b) Each
Notice Holder agrees severally and not jointly to indemnify and hold harmless
the Company and its directors, its officers who sign any Shelf Registration
Statement and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
or
any other Notice Holder, to the same extent as the foregoing indemnity from
the
Company to such Notice Holder, but only with reference to information relating
to such Notice Holder furnished to the Company in writing by or on behalf of
such Notice Holder expressly for use in such Shelf Registration Statement,
Prospectus or Issuer Free Writing Prospectus or amendment or supplement thereto.
In no event shall the liability of any Notice Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Notice Holder
upon the sale of the Registrable Securities pursuant to the Shelf Registration
Statement giving rise to such indemnification obligation.
(c) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section
6(a)
or
6(b)
hereof,
such person (the “indemnified
party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”)
in
writing and the indemnifying party, upon request of the indemnified party,
shall
retain counsel reasonably satisfactory to the indemnified party to represent
the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party, unless (i)
the
indemnifying party and the indemnified party shall have mutually agreed to
the
retention of such counsel or (ii)
the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to
Section
6(a),
the
Holders of a majority (with Holders of Securities deemed to be the Holders,
for
purposes of determining such majority, of the number of shares of Underlying
Securities into which such Securities are or would be convertible as of the
date
on which such designation is made) of the Registrable Securities covered by
the
Shelf Registration Statement held by Holders that are indemnified parties
pursuant to Section
6(a)
and, in
the case of parties indemnified pursuant to Section
6(b),
the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of
any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement and (iii) such indemnified party shall have given such indemnifying
party at least thirty 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
ShengdaTech,
Inc.
Registration
Rights Agreement
19
(d) To
the
extent that the indemnification provided for in Section
6(a)
or
6(b)
is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such losses, claims, damages or liabilities (i)
in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii)
if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on
the
other hand in connection with the statements or omissions that resulted in
such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed
to
be equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities
to
which such losses, claims, damages or liabilities relate. The relative benefits
received by any Holder shall be deemed to be equal to the net proceeds from
the
sale of Registrable Securities sold by such Holder. The relative fault of the
Holders or the Initial Purchaser on the one hand and the Company on the other
hand 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 Holders
or the Initial Purchaser or by the Company, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders’ respective obligations to contribute
pursuant to this Section
6(d)
are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Shelf Registration Statement, and not
joint.
ShengdaTech,
Inc.
Registration
Rights Agreement
20
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section
6(d)
were
determined by pro
rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section
6(d),
no
indemnifying party that is a selling Holder shall be required to contribute
any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by it and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
remedies provided for in this Section
6
are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity, hereunder, under the
Purchase Agreement or otherwise.
(f) The
indemnity and contribution provisions contained in this Section
6
shall
remain operative and in full force and effect regardless of (i)
any
termination of this Agreement, (ii)
any
investigation made by or on behalf of any Holder or Initial Purchaser, any
person controlling any Holder or Initial Purchaser or any affiliate of any
Holder or Initial Purchaser or by or on behalf of the Company, its officers
or
directors or any person controlling the Company and (iii)
the sale
of any Registrable Securities by any Holder.
Section
7.
Information Requirements. The
Company covenants that, if at any time before the end of the Effectiveness
Period, the Company is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder and take such further reasonable action
as any Holder may reasonably request in writing (including, without limitation,
making such reasonable representations as any such 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 Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver
to
such Holder a written statement as to whether it has duly filed all reports
required to be filed by it under Section 13 or 15(d) the Exchange Act during
the
preceding 12 months, unless such a statement has been included in the Company’s
most recent report filed pursuant to Section 13 or Section 15(d) of Exchange
Act. Notwithstanding the foregoing, nothing in this Section
7
shall be
deemed to require the Company to register any of its securities (other than
the
Shares) under the Exchange Act.
ShengdaTech,
Inc.
Registration
Rights Agreement
21
Section
8.
Miscellaneous.
(a) No
Conflicting Agreements. The
Company is not, as of the date hereof, a party to, nor shall it, on or after
the
date of this Agreement, enter into, any agreement with respect to its securities
that conflicts with the rights granted to the Holders in this Agreement. The
Company represents and warrants that the rights granted to the Holders hereunder
do not in any way conflict with the rights granted to the holders of the
Company’s securities under any other agreements.
(b) Amendments
and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority of the then outstanding Underlying
Securities constituting Registrable Securities (with Holders of Securities
deemed to be the Holders, for purposes of this Section, of the number of
outstanding shares of Underlying Securities into which such Securities are
or
would be convertible as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Shelf Registration
Statement; provided
that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the foregoing sentence, this Agreement may be amended by written
agreement signed by the Company and the Initial Purchasers, without the consent
of the Holders of Registrable Securities, to cure any ambiguity or to correct
or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions
in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by
any
such amendment, modification, supplement, waiver or consent effected pursuant
to
this Section
8(b)
whether
or not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
ShengdaTech,
Inc.
Registration
Rights Agreement
22
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, by fax, by courier or by first-class mail,
return receipt requested, and shall be deemed given (i) when made, if made
by
hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one Business
Day after being deposited with such courier, if made by overnight courier or
(iv) on the date indicated on the notice of receipt, if made by first-class
mail, to the parties as follows:
(i) if
to a
Holder, at the most current address given by such Holder to the Company in
a
Notice and Questionnaire or any amendment thereto;
(ii) if
to the
Company, to:
ShengdaTech,
Inc.
Youth
Pioneer Park, Tai’an Economic and
Technological
Development Zone
Tai’an
City, Shangdong Province 271000, PRC
Attention:
Xxxxxxxx Xxxx
Fax
No.: 00-000-000-0000
with
a
copy to:
Xxxxxxxxxx
Xxxxxxxxxx & Xxxx XXX
0000
Xxxxx Central Xxxxx Xxxxx 0, Xx. 00 Xxxxxxx
Xxxx,
Xxxxxxx 100025, PRC
Attention:
Xxxxxxx Xxxxx, Esq.
Fax:
00-00-0000-0000
(iii) if
to the
Initial Purchasers, to:
Xxxxxxxxxxx
& Co. Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx XxxXxxxx, Managing Director
Head
of
Equity Capital Markets
Fax:
0-000-000-0000
ShengdaTech,
Inc.
Registration
Rights Agreement
23
with
a
copy to:
Shearman
& Sterling, LLP
12
Floor
East Tower, Twin Towers
B-12
Jianguomenwai Dajie
Beijing
100022, People’s Republic of China
Attention:
Xxxx Seem
Fax:
(00-00) 0000-0000
or
to
such other address as such person may have furnished to the other persons
identified in this Section
8(c)
in
writing in accordance herewith.
(d) Approval
of Holders.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders if
such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) Successors
and Assigns. Any
person who purchases any Registrable Securities from the Initial Purchasers
shall be deemed, for purposes of this Agreement, to be an assignee of the
Initial Purchasers. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties and shall inure to the
benefit of and be binding upon each Holder of any Registrable Securities;
provided
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Indenture. If any transferee of any Holder shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and
by
taking and holding such Registrable Securities, such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be original and all of which taken together shall constitute one and the
same
agreement.
ShengdaTech,
Inc.
Registration
Rights Agreement
24
(g) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) Submission
to Jurisdiction; Appointment of Agent for Service.
Each of
the parties hereto irrevocably submits to the non-exclusive jurisdiction of
any
New York State or United States Federal court sitting in the borough of
Manhattan, The City of New York (each a “New
York Court”)
over
any suit, action or proceeding arising out of or relating to this Agreement,
the
Indenture, the Securities, the Registration Rights Agreement or the offering
of
the Securities. The Company irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of venue
of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. To the extent that the Company has or
hereafter may acquire any immunity (on the grounds of sovereignty or otherwise)
from the jurisdiction of any court or from any legal process with respect to
itself or its property, the Company irrevocably waives, to the fullest extent
permitted by law, such immunity in respect of any such suit, action or
proceeding. The Company hereby irrevocably appoints CT Corporation, with offices
at 000 Xxxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000 as its agent for service of process
in any suit, action or proceeding described in the preceding paragraph and
agrees that service of process in any such suit, action or proceeding may be
made upon it at the office of such agent. The Company waives, to the fullest
extent permitted by law, any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and warrants that
such
agent has agreed to act as the Company’s
agent
for service of process, and the Company agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect.
(i) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
(j) Severability.
If any
term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, and
the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction, it being intended that all
of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
ShengdaTech,
Inc.
Registration
Rights Agreement
25
(k) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and the registration rights granted by the Company with respect to the
Registrable Securities. Except as provided in the Purchase Agreement, there
are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights granted
by
the Company with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and undertakings among the parties with respect
to such registration rights. No party hereto shall have any rights, duties
or
obligations other than those specifically set forth in this Agreement. In no
event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(l) Termination.
This
Agreement and the obligations of the parties hereunder shall terminate upon
the
end of the Effectiveness Period, except for any liabilities or obligations
under
Section
4,
5
or
6
hereof
and the obligations to make payments of and provide for additional interest
under Section
2(f)
hereof
to the extent such additional interest accrues prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
[REMAINDER
OF PAGE LEFT BLANK INTENTIONALLY]
ShengdaTech,
Inc.
Registration
Rights Agreement
26
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
SHENGDATECH,
INC.
|
||
| |
|
|
| By: |
/s/
Xxxxxxxx Xxxx
|
|
|
Name: Xxxxxxxx
Xxxx
|
||
|
Title:
Chief Executive Officer
|
||
SIGNATURE
PAGE TO
REGISTRATION
RIGHTS AGREEMENT
Confirmed
and accepted as of the date first above written, for
itself and as the representative of the several Initial Purchasers:
|
XXXXXXXXXXX
& CO. INC.
|
||
|
By:
|
/s/ Xxxxxx XxxXxxxx | |
|
Name:
Xxxxxx XxxXxxxx
|
||
|
Title:
Managing Director
Head
of Equity Capital
Markets
|
||
SIGNATURE
PAGE TO
REGISTRATION
RIGHTS AGREEMENT
