Exhibit 10.2
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 25, 2001
BY AND AMONG
XXXXX LIMITED
AND
THE PARTIES LISTED IN ANNEX A HERETO
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This Registration Rights Agreement (the "AGREEMENT") is dated as of June
25, 2001 by and among Xxxxx Limited, a limited liability company incorporated
under the laws of Bermuda (the "COMPANY"), and those parties listed in Annex A
hereto. All parties to this Agreement and any Addendum, with the exception of
the Company, are collectively referred to as the "SHAREHOLDERS."
RECITALS
WHEREAS, upon the closing of the Company's Initial Public Offering (as
defined herein), the Shareholders will own issued and outstanding common shares
of the Company, par value $0.01 per share ("COMMON SHARES"); and
WHEREAS, the Company and the Shareholders have entered into this Agreement
for the purpose of designating the registration rights of the Shareholders.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the terms below shall have the following meanings. Any
such term, unless the context otherwise requires, may be used in the singular or
plural, depending upon reference.
"ADDENDUM" shall have the meaning set forth in Section 8.3(b).
"ADDITIONAL SHAREHOLDER" shall have the meaning set forth in Section
8.3(b).
"BOARD" shall mean the Board of Directors of the Company.
"DEMAND REGISTRATION REQUEST" shall have the meaning set forth in Section
2.1(a).
"DEMAND REGISTRATION RIGHT" shall have the meaning set forth in Section
2.1.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"IPO LOCK-UP PERIOD" shall mean the period beginning upon the date of the
final prospectus relating to the Initial Public Offering and ending 180 days
after such date.
"INDEMNIFIED PARTIES" shall have the meaning set forth in Section 7.1.
"INITIAL PUBLIC OFFERING" shall mean the initial underwritten offering by
the Company of Common Shares of the Company that is approved by the Board and
registered with the SEC under the Securities Act and after which the Common
Shares are listed on the New York Stock Exchange.
"MATERIAL TRANSACTION" shall mean a material transaction in which the
Company or any of its subsidiaries proposes to engage or is engaged, including a
purchase or sale of assets or securities, financing, merger, amalgamation,
consolidation, tender offer or other material corporate development, and with
respect to which the Board has reasonably determined in good faith that
compliance with this
Agreement may reasonably be expected to either (i) materially interfere with the
Company's or such subsidiary's ability to consummate such transaction in a
timely fashion or (ii) require the Company to disclose material, non-public
information or such material corporate development prior to such time as it
would otherwise be required to be disclosed.
"MAXIMUM OFFERING AMOUNT" shall have the meaning set forth in Section 3.2.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a Registration Statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such Registration Statement.
"REGISTRABLE STOCK" shall mean (i) the Shares owned by the Shareholders as
of the closing date for the Initial Public Offering and (ii) any Shares issued
or issuable with respect to any such shares of Registrable Stock by way of a
stock dividend bonus issue, subdivision or stock split in connection with a
combination or consolidation of shares, recapitalization, merger, amalgamation,
consolidation or other reorganization or otherwise. As to any particular shares
of Registrable Stock that have been issued, such securities shall cease to be
Registrable Stock when (a) a registration statement with respect to the sale of
such Shares shall have become effective under the Securities Act and such
securities shall have been disposed of under such registration statement, (b)
such Shares shall have been sold or distributed to the public or (c) such Shares
shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with Sections 2.1 and 3.1 of this Agreement,
including without limitation: (i) all SEC and National Association of Securities
Dealers, Inc. registration and filing fees; (ii) all fees and expenses incurred
in connection with complying with state securities or blue sky laws (including
fees and disbursements of counsel for the underwriters in connection with blue
sky qualifications of the securities); (iii) all printing, messenger and
delivery expenses; (iv) all fees and expenses incurred in connection with the
listing of the securities on any securities exchange pursuant to Sections 2.1
and 3.1; (v) the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any audits and/or
"comfort" letters required by or incident to such performance and compliance;
(vi) the reasonable fees and disbursements of one counsel, other than the
Company's counsel, selected by Shareholders holding a majority of the securities
being registered to represent all the Selling Shareholders in connection with
each registration (it being understood that any Shareholder may, at its own
expense, retain separate counsel to represent it in connection with such
registration); and (vii) the reasonable fees and expenses of any special experts
retained in connection with the requested registration, but excluding Selling
Expenses, if any, incurred by a Selling Shareholder.
"REGISTRATION STATEMENT" shall mean a registration statement filed with
the SEC pursuant to the Securities Act.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933, and the rules
and regulations promulgated thereunder, as the same may be amended from time to
time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and transfer taxes applicable to the sale of shares of Registrable
Stock by a Selling Shareholder.
"SELLING SHAREHOLDER" shall mean a Shareholder who sells shares of
Registrable Stock pursuant to the exercise of registration rights granted to
such Shareholder pursuant to Article II or III hereof.
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"SHARES" shall mean the Common Shares of the Company.
ARTICLE II
REGISTRATION ON REQUEST
2.1 DEMAND REGISTRATION. The Shareholders shall have the right to require
the Company, as expeditiously as possible, to use its best efforts to effect the
registration of the shares of Registrable Stock that the Shareholders shall
request, pursuant to a Registration Statement (the "DEMAND REGISTRATION
RIGHTS"), subject to the following limitations:
(a) such Demand Registration Rights shall be exercised by written
notice to the Company (a "DEMAND REGISTRATION REQUEST");
(b) the Company shall not be obligated to effect and pay for more
than a total of three (3) registrations pursuant to this Section 2.1;
(c) any Demand Registration Request may only be made by Shareholders
requesting to sell shares of Registrable Stock that have an aggregate offering
price of at least $100 million, based on the closing market price on the New
York Stock Exchange on the trading day prior to the date of such request;
(d) the Company shall not be required to file a Registration
Statement to register Shares pursuant to this Section 2.1 until after the
expiration of the IPO Lock-up Period;
(e) the Company shall not be required to effect a registration
pursuant to this Section 2.1 more than once during any consecutive 12-month
period; and
(f) the Company shall not be required to effect a registration
pursuant to this Section 2.1 if it is requested pursuant to clause (a) above at
any time after the third anniversary of the expiration of the IPO Lock-up
Period.
No Shareholder may participate in any underwritten registration
pursuant to this Section 2.1 (or exercise its right to register Shares pursuant
to Section 3.1 with respect to any such registration) unless such Shareholder
(i) agrees to sell its Registrable Stock on the basis provided in any
underwriting arrangement approved by the Company, which approval shall not be
unreasonably withheld and (ii) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
2.2 PRIORITY IN DEMAND REGISTRATION. If a registration pursuant to this
Article II involves an underwritten offering and the managing underwriter with
respect to such offering advises the Shareholders participating in such
registration that, in its opinion, the number of Shares which the Shareholders
and any other persons intended to be included in such registration exceeds the
largest number of Shares which can be sold in such offering without having an
adverse effect on the offering of Shares, then the Company will include in such
registration such number of shares of Registrable Stock as have been requested
to be included in such registration pursuant to this Article II and Article III
and which, in the opinion of such managing underwriter, can be sold without
having the adverse effect referred to above. The reduced number of Shares shall
be allocated pro rata among the Shareholders participating in the Demand
Registration Request pursuant to Section 2.1 and any Shareholders who have
requested registration of Shares pursuant to Section 3.1, based on the number of
Shares proposed to be
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sold by each such Shareholder; PROVIDED, HOWEVER, that the number of Shares to
be included in such registration shall not be reduced unless all other
securities are first excluded entirely from the registration.
ARTICLE III
INCIDENTAL REGISTRATION
3.1 PIGGYBACK REGISTRATION RIGHTS. In connection with any exercise of a
Demand Registration Right and otherwise during the five-year period after the
expiration of the IPO Lock-up Period, each time the Company proposes to register
Shares or equity securities which are convertible into or exchangeable for
Shares under the Securities Act pursuant to a Registration Statement (other than
a registration on Form F-4 or S-8, or any successor or other forms promulgated
for similar purposes), whether or not for sale for its own account, each
Shareholder shall have the right to require the Company to register shares of
Registrable Stock of such Shareholder, subject to the limitations set forth in
Section 3.2. The Company shall give prompt written notice to all Shareholders of
its intention to register Shares or equity securities which are convertible into
or exchangeable for Shares and of the Shareholders' rights under this Section
3.1. Upon the written request of any Shareholder made within 15 days after the
receipt of any such notice (which request shall specify the shares of
Registrable Stock intended to be registered) the Company shall use its best
efforts to effect the registration of such shares of Registrable Stock under the
Securities Act; PROVIDED that, if such registration involves an offering by the
Company of Shares for its own account: (a) if, at any time after giving written
notice of its intention to register any Shares and prior to the effective date
of the Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to proceed with the proposed
registration, the Company may, at its election, give written notice of such
determination to the Shareholders requesting registration pursuant to this
Section 3.1 and thereupon shall be relieved of its obligation to register any
securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of any Shareholder to make a Demand Registration Request
under Section 2.1; and (b) if such registration involves an underwritten
offering by the Company, all Shareholders requesting to have shares of
Registrable Stock included in the Company's registration become a party to the
underwriting arrangements agreed to by the Company and the underwriters who
shall have been selected by the Company, on the same terms and conditions as are
applicable to the Company, except for the Company's obligation to pay all
Registration Expenses and any such differences, including those with respect to
indemnification and contribution, as may be customary or appropriate in combined
primary and secondary offerings.
3.2 PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant to
this Article III involves an underwritten offering and the managing underwriter
with respect to such offering advises the Company that, in its opinion, the
number of Shares and other securities which the Company, the Shareholders and
any other persons intended to be included in such registration exceeds the
largest number of Shares and other securities which can be sold in such offering
without having an adverse effect on the offering of Shares (including, if
applicable, the price at which the Company proposes to sell Shares or other
securities) (the "MAXIMUM OFFERING AMOUNT"), then the Company will include in
such registration, in the following priority up to the Maximum Offering Amount:
(x) FIRST, all of the Shares or other securities proposed to be registered for
offer and sale by the Company, if any, and (y) SECOND, all of the Registrable
Stock requested to be included in such registration by Shareholders pursuant to
this Article III and any other Shares or other securities which are proposed to
be included in such registration; PROVIDED that the Shares and other securities
shall be allocated, if necessary, pro rata among the Shareholders and the
holders of such other Shares or other securities, on the basis of the relative
number of Shares or other securities each such Shareholder or other holder has
requested to be included in such registration.
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ARTICLE IV
EXPENSES
4.1 EXPENSES. Except as provided in Section 5.1, the Company shall pay all
(and shall promptly reimburse to the Shareholders to the extent they have borne
any) Registration Expenses in connection with each registration of shares of
Registrable Stock requested under this Agreement, regardless of whether the
Registration Statement filed in connection with such registration becomes
effective. Each of the Shareholders requesting the registration of shares of
Registrable Stock shall pay its respective Selling Expenses.
ARTICLE V
COMPLIANCE WITH REGISTRATION REQUESTS
5.1 EFFECTIVE REGISTRATION STATEMENT. A registration requested pursuant to
Articles II or III will be deemed to have been made when the Registration
Statement has become effective and remains effective for the period provided in
Section 6.1(b). Any Shareholder shall be permitted to withdraw from a requested
registration at any time prior to the effectiveness of the Registration
Statement by written notice to the Company. If, however, a Shareholder withdraws
shares of Registrable Stock requested to be registered pursuant to Article III,
such withdrawing Shareholder shall be responsible for reimbursing the Company
for any filing fees incurred by the Company as a consequence of making the
registration on behalf of such withdrawing Shareholder. A registration request
pursuant to Article II shall not be deemed to have been effected if (i) after
the Registration Statement has become effective, it becomes subject to any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court for any reason that is not lifted or released, other than by
reason of an act or omission by the requesting Shareholders with respect thereto
or (ii) if the closing conditions specified in the underwriting agreement
entered into in connection with such registration are not satisfied, other than
by reason of an act or omission by the requesting Shareholders.
5.2 MATERIAL TRANSACTION. The Company may delay (i) the filing or
effectiveness of any Registration Statement pursuant to Article II or (ii) for a
period of up to 60 days, the preparation of any amended or supplemental
prospectus pursuant to Section 6.1(e), in each case, if a Material Transaction
exists or is pending at such time. In addition, the Company shall be entitled to
delay the filing of any Registration Statement requested pursuant to Section 2.1
after receipt of a Demand Registration Request if the Company is conducting or
about to conduct an underwritten public offering in which the Shareholders are
entitled to join pursuant to Section 3.1.
In the case of any such delay, the time periods referred to in Article II
and Article III shall be tolled during the period of time of any such delay in
filing any Registration Statement or furnishing any amended or supplemental
prospectus.
If the Company delays the filing of any registration statement or the
furnishing of any amended or supplemental prospectus, it shall so notify each
Shareholder participating in the registration, indicating that a Material
Transaction is pending and the anticipated delay. No Shareholder shall request a
registration pursuant to Article II until, pursuant to the immediately following
paragraph, the Company has notified the Shareholder that the applicable Material
Transaction has been publicly disclosed by the Company or has not materialized.
If the Company delays the filing of any registration statement or the
furnishing of any amended or supplemental prospectus pursuant to this Section
5.2 and such Material Transaction is subsequently
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publicly disclosed by the Company or does not materialize, the Company shall
promptly notify the Shareholders participating in the registration of such fact
and any Shareholder may exercise any right that it may have to request a
registration pursuant to Article II immediately following its receipt of such
notice.
The Company may not delay the filing of any registration statement
pursuant to this Section 5.2 for more than an aggregate of 180 days in any
consecutive12-month period and the suspension of the filing of any registration
statement pursuant to this Section 5.2 shall not prejudice any right that the
Shareholder may have to request that the Company effect the registration of the
Shareholder's Registrable Stock pursuant to Article II hereto at a later date.
ARTICLE VI
REGISTRATION PROCEDURES
6.1 If and whenever the Company is required to use its best efforts to
effect or cause the registration of Shares under the Securities Act as provided
in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Shares on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate, and use its best efforts to
cause such Registration Statement to become effective; PROVIDED that before
filing such Registration Statement, the Company will furnish to the counsel
selected by the holders of Registrable Stock which are to be included in such
registration copies of all such documents proposed to be filed, which documents
will be subject to the prompt review of such counsel;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement and use its best efforts to cause such registration statement to
become and remain effective until the earlier of (i) the sale of all such
Registrable Stock, or, in the case of an underwritten offering, until each
underwriter has completed the distribution of all Registrable Stock included in
such offering and (ii) three months after the effective date of such
registration statement;
(c) furnish to each Selling Shareholder such number of copies of the
Registration Statement and of each amendment and supplement thereto (in each
case including all exhibits), the prospectus included in the Registration
Statement (including each preliminary prospectus and any amendments or
supplements thereto) and such other documents as such Shareholder may reasonably
request;
(d) use its best efforts to register or qualify such Shares covered
by such Registration Statement under such other state securities or blue sky
laws of such jurisdictions within the United States and its possessions and
territories as shall be reasonably appropriate for the distribution of the
Shares covered by the Registration Statement, PROVIDED, HOWEVER, that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 6.1(d), it would not be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to consent
to general service of process in any such jurisdiction;
(e) promptly notify each Shareholder of any Shares covered by such
Registration Statement, (i) when the Registration Statement and any amendment or
supplement has been filed and, in
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the case of the Registration Statement or post-effective amendment, declared
effective, (ii) of the issuance of any order suspending the effectiveness of a
Registration Statement (and the Company shall use its best efforts to obtain the
withdrawal of any such order at the earliest practicable time) and (iii) at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the Company's becoming aware that the prospectus included in
such Registration Statement, as then in effect, includes or may include an
untrue statement of a material fact or omits or may omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and at the
request of any such Shareholder, prepare and furnish to such Shareholder a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Shares,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(f) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to the Shareholders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(g) furnish, at the written request of any Holder requesting
registration pursuant to Article II, a "comfort letter" from the Company's
independent public accountants in customary form and covering such matters with
respect to such Registration Statement as are customarily covered in such
letters as the managing underwriter or the Shareholders holding a majority of
the Registrable Stock included in such registration, as the case may be, may
reasonably request;
(h) use its best efforts to list the Registrable Stock covered by
such Registration Statement on any securities exchange on which the Shares are
then listed;
(i) enter into and perform its obligations under such customary
agreements (including an underwriting agreement in customary form) and take such
other actions as are reasonably required in order to expedite or facilitate the
disposition of such Shares, including, without limitation, in the case of an
underwritten demand registration, participating in meetings with potential
investors or securities analysts (including "road shows"); and
(j) coordinate with the Selling Shareholders in the preparation of
material regarding such Shareholder, which in the reasonable judgment of such
Shareholder and its counsel should be included in such Registration Statement.
The Company may require as a condition precedent to the obligations
of the Company to take any action pursuant to this Agreement that each
Shareholder for which a registration is being effected furnish the Company with
such information regarding such Shareholder (pertinent to the disclosure
requirements relating to the registration and the distribution of such Shares)
and the Registrable Stock held by it as the Company may from time to time
reasonably request.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY. In the event of any registration of
any Shares under the Securities Act pursuant to Article II or III, the Company
shall indemnify and hold harmless each Shareholder of shares of Registrable
Stock covered by such registration, each of its directors, officers,
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employees, agents, and each person, if any, who controls such Shareholder
within the meaning of the Securities Act (and the directors, officers,
employees and agents of each such controlling person) (collectively, the
"INDEMNIFIED PARTIES"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses to which such Indemnified Party
may become subject to under the Securities Act or the Exchange Act or other
applicable law, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof, whether or not such Indemnified
Party is a party thereto) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
Registration Statement under which such Shares were registered under the
Securities Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; and the Company
will reimburse such Indemnified Party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; PROVIDED that the
Company shall not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement, any such preliminary, final or summary
prospectus, or any amendment or supplement thereto in reliance upon and in
conformity with written information with respect to such Indemnified Party
furnished to the Company by such Indemnified Party expressly for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Shareholder or
any Indemnified Party and shall survive the transfer of such Shares by such
Shareholder.
7.2 INDEMNIFICATION BY THE SHAREHOLDERS. Each Shareholder requesting or
joining in a registration severally and not jointly shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 7.1)
the Company and each other Shareholder requesting or joining in a registration,
and any of their respective directors, officers, employees, agents and
controlling persons (and the directors, officers employees and agents of each
such controlling person), with respect to any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Shares were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading, if and to the extent such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information with respect to such Shareholder
furnished to the Company by such Shareholder expressly for use in the
preparation of such Registration Statement, preliminary, final or summary
prospectus or amendment or supplement; PROVIDED that no Shareholder shall be
liable pursuant to this Section 7.2 for any amount in excess of the net
proceeds received by such Shareholder from the sale of Shares covered by the
Registration Statement giving rise to the claim for indemnification. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the Shareholders,
or any of their respective directors, officers, employees, agents or
controlling persons and shall survive the transfer of such Shares by such
Shareholder.
7.3 NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified Party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Article VII, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party, give written notice to the latter of the
commencement of such action; PROVIDED that the failure of the Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under Section 7.1 or 7.2, except to the extent that the
Indemnifying Party is actually materially prejudiced by such failure to give
notice. Except as provided below, in case any such action is brought against an
Indemnified Party, the
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Indemnifying Party will be entitled to participate in and to assume the defense
thereof, jointly with any other Indemnifying Party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party. After notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense thereof, the Indemnifying Party
will not be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. If the Indemnified Party has been
advised by counsel that having common counsel would result in a conflict of
interest between the interests of such indemnified and indemnifying parties,
then such Indemnified Party may employ separate counsel reasonably acceptable to
the Indemnifying Party to represent or defend such Indemnified Party in such
action, it being understood, however, that the Indemnifying Party shall not be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such Indemnified Parties (and not more than one
separate firm of local counsel at any time for all such Indemnified Parties) in
such action. No Indemnifying Party will consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation.
7.4 CONTRIBUTION. If recovery is not available under the foregoing
indemnification provisions of this Article VII for any reason, the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
Shares (taking into account the portion of the proceeds realized by each),
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any misstatement or omission
and any other equitable considerations appropriate under the circumstances.
The Company and the Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation (even if the sellers of Shares were treated as one entity for
such purpose) or by any other method of allocation which 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
liabilities and expenses referred to in the immediately preceding paragraph
shall be deemed to include any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no Selling
Shareholder shall be required to contribute any amount in excess of the net
proceeds received by such Selling Shareholder from the sale of Shares covered by
the Registration Statement giving rise to the claim for contribution. 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.
7.5 NON-EXCLUSIVITY. The obligations of the parties under this Article VII
shall be in addition to any liability that any party may otherwise have to any
other party.
ARTICLE VIII
MISCELLANEOUS
8.1 NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received, if personally delivered; when
transmitted, if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by a
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recognized overnight delivery service (e.g., Federal Express); and upon receipt,
if sent by registered or certified mail (or any substantially similar form of
mail), postage prepaid and return receipt requested. In each case notice shall
be sent to:
If to the Company addressed to:
Xxxxx Limited
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Chief Financial Officer
With copies to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
If to any Shareholder, to such Shareholder at the address indicated in
Annex A hereto or on the relevant Addendum. Changes in notice addresses may be
made by a notice delivered to the Company pursuant to this Section 8.1.
8.2 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
8.3 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS; ADDITIONAL SHAREHOLDERS.
(a) This Agreement constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. This Agreement may not be terminated or amended except
by an instrument in writing signed by the Company and Shareholders holding at
least 66% of the outstanding shares of Registrable Stock; PROVIDED that any
amendment that expressly alters the rights of any Shareholder differently from
other Shareholders shall require the consent of such affected Shareholder. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
(b) Additional Shareholders (each, an "ADDITIONAL SHAREHOLDER") may
be added to this Agreement upon execution of an Addendum to this Agreement (an
"ADDENDUM"), a form of which is attached hereto as Annex B. Upon the execution
of an Addendum by such Additional Shareholder, the Company shall revise Annex A
accordingly.
8.4 SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective legal
representatives, heirs, legatees, successors and any party to which any
Shareholder has transferred or sold its shares of Registrable Stock who becomes
an Additional Shareholder pursuant to Section 8.3(b). Except as provided herein,
each transferee of Shares from a party hereto shall take such Shares subject to
the same restrictions, if any, as existed in the hands of the transferor.
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8.5 CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
8.6 JURISDICTION; WAIVERS. Each of the parties hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal suit, action or
proceeding relating to this Agreement or transaction contemplated hereby, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive jurisdiction of the Courts of the State of New York sitting in the
County of New York or the United States District Court for the Southern District
of New York and appellate courts having jurisdiction of appeals in such courts,
and each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such suit, action, or proceeding may properly be heard
and determined in such New York State court or, to the extent permitted by law,
in such federal court;
(b) consents that any such suit, action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue or jurisdiction or any such action or proceeding in such court or that
such action or proceeding was brought in an inconvenient forum and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such party in its
address as provided in Section 8.1 hereof;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by New York law; and
(e) agrees that this Agreement has been entered into in the State of
New York and shall be performed in part in the State of New York.
8.7 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.8 FURTHER ASSURANCES. Each of the parties shall execute and deliver such
further instruments and documents and take such further actions as may be
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby.
8.9 NO INCONSISTENT AGREEMENTS. Without the prior written consent of the
Shareholders holding at least 66% of the outstanding shares of Registrable
Stock, the Company will not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which is inconsistent with the
rights granted in this Agreement or otherwise conflicts with the provisions
hereof, other than any lock-up agreement with the underwriters in connection
with any registered offering effected hereunder, pursuant to which the Company
shall agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Shares or any securities convertible into or exercisable
or exchangeable for Shares, for a specified period following the registered
offering.
8.10 NO MORE FAVORABLE TERMS. The Company shall not grant any registration
rights to any person, including the Shareholders, that are senior to or more
favorable to such person than the rights granted hereunder to the Shareholders.
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8.11 CUMULATIVE REMEDIES. All rights and remedies of each party hereto are
cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
8.12 HEADINGS. The titles, captions or headings of the Articles and
Sections herein are for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
8.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
XXXXX LIMITED
By:
---------------------------
Name:
Title:
13
Print Name of Shareholder:
------------------
Address:
------------------------------------
--------------------------------------------
Signed:
-------------------------------------
Title (if applicable):
14
ANNEX A
SHAREHOLDERS AND ADDRESSES
ANNEX B
ADDENDUM TO
REGISTRATION RIGHTS AGREEMENT
ADDENDUM, dated as of ___________ __, ____, by and between Xxxxx Limited
(the "Company") and the party listed on the signature page hereto (the
"Additional Shareholder").
WHEREAS, the Company and the parties listed in Annex A of the Registration
Rights Agreement, dated as of June 25, 2001 (the "Agreement"), entered into the
Agreement for the purpose of regulating the registration rights of the
Shareholders party to the Agreement;
[Insert additional recitals, if appropriate, relating to the Additional
Shareholder.]
NOW THEREFORE, in consideration of the covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is mutually agreed by the parties as follows:
1. DEFINITIONS. Defined terms used herein and not otherwise defined shall
have the meanings set forth in the Agreement.
2. ADDITIONAL PARTY TO THE AGREEMENT. Pursuant to Section 8.3(b) of the
Agreement, the Company hereby agrees that the Additional Shareholder is, and the
Additional Shareholder hereby agrees to be, a party to the Agreement as a
Shareholder.
3. COUNTERPARTS. This Addendum may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4. [If applicable - Modifications to Agreement.]
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed by their respective authorized officers as of the date first
written above.
XXXXX LIMITED
By:
--------------------------------
Name:
Title:
Print Name of Shareholder:
------------------
Address:
------------------------------------
--------------------------------------------
Signed:
-------------------------------------
Title (if applicable):
