EXHIBIT 4.4
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
FOR
INVESTORS
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into effective as of November 19, 2002, by and among UTi
WORLDWIDE INC., a British Virgin Islands corporation (the "Company"), and each
of the entities or persons named on the signature page hereto (referred to
herein individually as an "Investor" and, collectively, as "Investors").
RECITALS
A. The Company and Investors are parties to that certain Registration
Rights Agreement dated as of April 19, 2000 (the "Original Agreement");
B. The Company and Investors desire to amend and restate the Original
Agreement to provide the Company with more control over the process of
registration of its securities, as provided for in this Agreement.
In consideration of the mutual promises, representations, warranties,
covenants and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto mutually agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
"1933 Act" or the "Act" shall mean the United States' Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect from time to time.
"1934 Act" shall mean the United States' Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect from time to time.
"Commission" or "SEC" shall mean the United States Securities and
Exchange Commission.
"Demand Registration" shall have the meaning specified in Section
2.1(a) hereof.
"Form S-3/F-3 Registration" shall have the meaning specified in Section
2.3(a) hereof.
"Initiating Investors" shall have the meaning specified in Section
2.1(a) hereof.
"Piggy-Back Registration" shall have the meaning specified in Section
2.2(a) hereof.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement with the SEC in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
"Registrable Securities" shall mean (i) the ordinary shares, no par
value, of the Company held by the Investors, (ii) any ordinary shares of the
Company issued or issuable upon conversion of the preference shares of the
Company held by the Investors, (iii) any securities issued or issuable upon any
dividend, split, recapitalization, merger, consolidation, reorganization,
liquidation or similar event with respect to such ordinary shares, and (iv) any
securities added to this definition of Registrable Securities as provided for in
Section 7.5 hereof. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when (i) a registration statement
covering such securities shall have become effective under the Act and such
securities shall have been disposed of in accordance with such registration
statement,(ii) such securities shall have been sold to the public pursuant to
Rule 144 or Rule 144A (or any successor provisions) under the Act, (iii) the
holder of such securities is free at the time, to sell such securities under
Rule 144(k) (or any successor provision), (iv) such securities shall have ceased
to be outstanding, or (v) such securities are sold by a person in a transaction
in which the rights under this Agreement are not assigned.
"Stock" shall mean the voting ordinary shares, no par value, of the
Company.
2. Registration Rights.
2.1 Demand Registrations
(a) Timing of Demand Registrations; Required Threshold. At any time
commencing twelve (12) months after the effective date of the Company's first
registration statement filed under the 1933 Act for a registered public offering
of its Stock in the United States of America (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase
-2-
or similar plan or an SEC Rule 145 transaction), any Investor or Investors
owning shares of the Company's then outstanding Registrable Securities may
request in writing (such person or persons, the "Initiating Investor(s)") that
the Company file a registration statement under the 1933 Act on an appropriate
form with respect to Registrable Securities owned by the Investor(s) with an
anticipated aggregate offering price, net of underwriting discounts and
commissions, of at least $10,000,000 (a "Demand Registration"), and the Company
shall file such a registration statement in accordance with the terms of this
Agreement.
(b) Number of Demand Registrations. The Company shall be obligated
to prepare, file and cause to become effective no more than two (2) registration
statements pursuant to Section 2.1(a) for the Investor(s); provided, however,
that a registration statement shall not be counted as one of the two (2) Demand
Registrations hereunder unless it becomes effective; provided, further, that if
there is an underwriter's cutback pursuant to Section 2.1(e) with respect to the
second request for registration initiated by the Investors, such requested
registration shall not be deemed to be a requested registration for purposes of
the limitation to two (2) Demand Registrations pursuant to this Section 2.1(b).
(c) Deferral by Company. Notwithstanding anything in this Section
2.1 to the contrary, the Company shall not be obligated to prepare, file and
cause to become effective pursuant to this Section 2.1 a registration statement
if the Company furnishes to the Initiating Investor or Investors a certificate
signed by an officer of the Company stating that it would be detrimental to the
Company or its shareholders for the Company to comply with the requested Demand
Registration, and it is, therefore, advisable to defer the filing of the
Registration Statement relating thereto. Any such deferral shall be made in the
Company's sole and absolute discretion and shall be for a period of not more
than one hundred twenty (120) days after the Company's receipt of the Initiating
Investor's or Investors' written request for registration pursuant to this
Section 2.1; provided, however, that the Company may not exercise this right
more than two consecutive times with respect to a Demand Registration during any
twelve month period, and that any requested registration deferred, and not
ultimately effected by the Company pursuant to the provisions of this Section
2.1(c) shall thereafter not be deemed to be a requested registration for
purposes of the limitation to two (2) Demand Registrations pursuant to Section
2.1(b) hereof.
(d) Participation. Upon receipt of a written request for a Demand
Registration pursuant to Section 2.1(a), the Company shall promptly give written
notice to all other Investors. Such other Investors may, by written notice to
the Company and the Initiating Investor(s), within thirty (30) days of the
Company's notice, elect to join in
-3-
a request for a Demand Registration pursuant to Section 2.1(a) above with
respect to any number of shares of Registrable Securities owned by each such
Investor. The Company shall include in such Demand Registration all shares of
Registrable Securities for which it has received written requests to register
such shares within thirty (30) days after written notice of the Demand
Registration has been given. The Registrable Securities of the other Investors
being offered in such Demand Registration shall be treated pari passu with the
Registrable Securities of the Initiating Investors for all purposes, including
any underwriter's cutbacks under Section 2.1(e).
(e) Underwriter's Cutback. If the public offering of Registrable
Securities is to be underwritten and, in the good faith judgment of the managing
underwriter, the inclusion of all the Registrable Securities requested to be
registered pursuant to Section 2.1(d) would interfere with the successful
marketing of such shares of Registrable Securities, the number of shares of
Registrable Securities to be included shall be reduced, and the Registrable
Securities of the Initiating Investors shall be treated pari passu with the
Registrable Securities being offered by all other Investors.
(f) Underwriting Requirements. If the Initiating Investors intend to
distribute Registrable Securities covered by their request by means of
underwriting, they shall so advise the Company as part of their request made
pursuant to Subsection 2.1(a). The underwriter will be selected by the Company
and shall be reasonably acceptable to a majority in interest of the Initiating
Investors. In such event, the right of any Investor to include his or her
Registrable Securities in such registration shall be conditioned upon such
Investor's participation in such underwriting and the inclusion of such
Investor's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Investors and such Investor)
to the extent provided therein. All holders proposing to distribute their
securities through such underwriting shall (together with the Company as
provided in Section 3.5 below) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
(g) Limitations. In addition to the limitations provided for above,
the Company shall not be obligated to effect, or take any action to effect, any
registration pursuant to this Section 2.1: (i) during the period starting with
the date sixty (60) days prior to the Company's good faith estimate of the date
of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, any registration subject to Section 2.2 hereof; provided that
the Company is actively employing in good faith reasonable efforts to cause such
registration to become effective; or (ii) if the Initiating Investors propose to
dispose of shares of Registrable Securities which may be
-4-
immediately registered on Form S-3 pursuant to a request made pursuant to
Section 2.3 below.
2.2 Piggy-Back Registration.
(a) Participation. If, at any time following the successful closing
of Company's first registered public offering in the United States of its Stock,
the Company proposes to file a registration statement under the Act with respect
to a public offering in the United States for cash of securities by the Company
for its own account or for the account of any other shareholders other than a
registration statement (i) on Form S-4 or S-8 (or any substitute or successor
form that may be adopted by the Commission), (ii) a registration statement on
any form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only securities being
registered are shares of Stock issuable upon conversion of debt securities that
are also being registered, (iii) for an exchange offer or offering of securities
principally to the Company's existing shareholders or (iv) for a dividend
reinvestment plan, then the Company shall:
(i) promptly give written notice of such proposed filing to the
Investors before the anticipated filing date of such registration statement,
which notice shall describe the offering; and
(ii) offer in such notice to the Investors the opportunity,
subject to Section 2.1(b) hereof, to register such number of shares of
Registrable Securities as each such Investor may request in writing within
thirty (30) days following receipt of such notice (a "Piggy-Back Registration").
The Company shall, subject to Section 2.2(b) hereof, use reasonable efforts to
cause such Registrable Securities to be included in such registration.
(b) Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's Stock, the Company shall
not be required under this Section 2.2 to include any of the Investors'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriter selected by the Company
(or by other persons entitled to be selected), and then only in such quantity as
the underwriter reasonably determines will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities requested to be included in such offering, exceeds the
amount of securities that the Company, in its sole and absolute discretion,
determines to be compatible with the success of the offering, then securities
offered for
-5-
sale by the Company for its account shall have first priority and the Company
shall have the right, in its sole and absolute discretion, to reduce the size of
the offering and withhold from any offering any Registrable Securities it deems
necessary or advisable. The Company shall be required to include in the offering
only that number of Registrable Securities that the Company, in its sole and
absolute discretion, determines will not jeopardize the success of the offering
(the securities so included to be a proportioned first to any holders of rights
superior to the rights of the Investors and then pro rata among the Investors
according to the total amount of securities entitled to be included therein
owned by each Investor who desires to participate in the offering or in such
other proportions as shall mutually be agreed to by such selling Investors).
(c) Withdrawal. Any Investor may elect to withdraw its request for
inclusion of its Registrable Securities in any registration statement by giving
notice to the Company prior to the effectiveness of such registration statement.
The Company may decline to file a Registration Statement after giving notice to
the Investors, or may withdraw a Registration Statement after filing and after
such notice, but prior to the effectiveness thereof. Such withdrawal by the
Company shall not require the consent of any Investor, provided, however, that
the Company shall promptly notify each Investor in writing of any such action.
2.3 Form S-3 or Form F-3 Registration.
(a) Request for Registration. In addition to the registration rights
provided in Sections 2.1 and 2.2 hereof, if at any time the Company is eligible
to use Form S-3 or Form F-3 (or any successor or similar form) for registration
of secondary sales of securities, any Investor may request in writing that the
Company register all or any portion of such Investor's Registrable Securities on
such form (a "Form S-3/F-3 Registration"), any Investor or Investors may deliver
a written request or requests to the Company that the Company effect a Form
S-3/F-3 Registration. Upon receipt of such a request, the Company shall promptly
give written notice of the proposed Form S-3/F-3 Registration to the other
Investors and the Company shall, as soon as practicable, effect such Form
S-3/F-3 Registration with regard to the Registrable Securities of any Investor
or Investors joining in such request as soon as practicable. The Company shall
not, however, be obligated to effect any such Form S-3/F-3 Registration under
this Section 2.3 if:
(i) Form S-3 or Form F-3 (or any successor or similar form) is
not available for such offering by the Investors;
-6-
(ii) the Investors, together with the holders of any other
Registrable Securities entitled to inclusion in such registration, propose to
sell Registrable Securities at an aggregate anticipated price to the public of
less than $3,000,000;
(iii) the Company has, within the twelve-month period preceding
the date of such request, already effected two (2) Form S-3/F-3 Registrations
for the Investors pursuant to this Section 2.3; or
(iv) the Company has, within the nine-month period preceding the
date of such request, closed an underwritten public offering of Stock.
(b) Deferral by Company. Notwithstanding anything in this Section
2.3 to the contrary, the Company shall not be obligated to prepare, file and
cause to become effective pursuant to this Section 2.3 a registration statement
if the Company furnishes to the Investors requesting a Form S-3/F-3 Registration
a certificate signed by an officer of the Company stating that it would be
detrimental to the Company or its shareholders for the Company to comply with
the requested Form S-3/F-3 Registration, and it is, therefore, advisable to
defer the filing of the Registration Statement relating thereto. Any such
decision by the Company to defer the filing shall be made by the Company in its
sole and absolute discretion. Any such deferral shall be for a period of not
more than one hundred twenty (120) days after the Company's receipt of the
written request for registration pursuant to this Section 2.3; provided,
however, that the Company may not exercise this right more than two consecutive
times with respect to any Form S-3/F-3 Registration during any twelve (12)
month period, and that any requested registration deferred, and not ultimately
effected by the Company pursuant to the provisions of this Section 2.3 shall
thereafter not be deemed to be a requested registration for purposes of the
limitation to Form S-3/F-3 Registrations provided for above.
2.4 Delay of Registration. No Investor shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
a result of any controversy that might arise with respect to the interpretation
or implementation of this Agreement.
2.5 Suspension Period. Following the effectiveness of any registration
effected pursuant to this Agreement, the Company may, at any time, suspend the
effectiveness of such registration for up to sixty (60) days ("Suspension
Period") by giving notice to the Investors participating in such registration,
if the Company shall have determined that the Company may be required to
disclose any material corporate development, which disclosure may have a
material adverse effect on the Company.
-7-
Notwithstanding the foregoing, no more than two Suspension Periods (i.e., 120
days) may occur in succession. The Company shall use its best efforts to limit
the duration and number of any Suspension Period. Each Investor agrees, upon
receipt of any notice from the Company of a Suspension Period, that the Investor
shall forthwith discontinue any sales of shares covered by the registration
until advised in writing by the Company that the Investor may continue such
sales.
2.6 Length of Effectiveness. In the case of any registration effected
by the Company pursuant to Section 2.1 or 2.3 of this Agreement, the Company
will use its best efforts to keep such registration effective until the earlier
of (i) twelve (12) months from the date it is declared effective by the
Commission, (ii) such date as all of the Registrable Securities covered by the
registration have been sold, or (iii) such time as the Registrable Securities
held by the Investors can be sold within a given three-month period without
compliance with the registration requirements of the 1933 Act pursuant Rule 144,
provided, however, the Company shall not be required to keep such registration
effective in any period the Company has suspended sales under the Registration
Statement pursuant to Section 2.5 above.
2.7 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of any selling Investor that such Investor
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of distribution of such
securities required to effect the registration of such Investor's Registrable
Securities.
2.8 Termination of Registration Rights. No Investor shall be entitled
to exercise any right provided for in this Section 2 after ten (10) years
following consummation of the Company's first underwritten offering in the
United States of Stock pursuant to a registration filed by the Company under the
Act. In addition, no Investor shall be entitled to exercise any right provided
for in this Section 2 if all Registrable Securities held by such Investor can be
sold in any three (3) month period without registration in compliance with Rule
144 of the Act.
2.9 Other Registration Rights. Nothing in this Agreement shall prevent
the Company from granting, in its sole and absolute discretion, registration
rights to others, including rights which are superior to the rights contained in
this Agreement.
3. Registration Procedures. If and whenever the Company is required to
register its Registrable Securities pursuant to this Agreement, the Company will
use commercially reasonable efforts to effect such registration to permit the
sale of such Registrable
-8-
Securities in accordance with the intended plan of distribution thereof, and
will as promptly as practicable:
3.1 prepare and file with the Commission a registration statement with
respect to such Registrable Securities, and use its best efforts to cause such
registration statement to become effective, and, upon the request of a majority
of Investors registered thereunder, keep such registration statement effective
for a period of up to one hundred twenty (120) days or until the distribution
contemplated in the registration statement has been completed;
3.2 prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
3.3 furnish to the Investors such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
3.4 use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Investors; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
3.5 in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Investor
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
3.6 notify each Investor of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits 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;
3.7 furnish, at the request of any Investor requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are
-9-
delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement if such securities are being sold through
underwriters, (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters;
3.8 cause, all such Registrable Securities registered pursuant to such
registration statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed; and
3.9 provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
4. Market Stand-Off. Each Investor hereby agrees that, upon request in
connection with any underwritten registered public offering by the Company, for
a period not to exceed 180 days following the effective date of such
registration statement, they will not directly or indirectly effect any sale,
offer to sell, pledge, make any short sale, or distribution (or enter into any
agreement to do any of the foregoing) of any securities similar to those being
registered by the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or 144A
under the Act, except for sales included as part of such registered public
offering; provided, however, that such restriction shall apply only to the first
underwritten registration by the Company to become effective under the Act. Each
Investor hereby agrees to enter into "lock-up" agreements and to execute any
ancillary agreements with the underwriter or underwriters, in customary form,
pursuant to which the Investor shall agree not to sell or distribute such
securities. In order to enforce the foregoing covenant, the Company may impose
appropriate stop-transfer instructions with respect to the shares of Stock held
by each Investor.
5. Registration Expenses. The Company shall bear all expenses incurred in
connection with any registrations required by Section 2 including reasonable
expenses and fees of one (1) counsel for all Investors (if counsel for the
Company shall, in the reasonable judgment of the selling Investors, be
unavailable to represent such selling Investors). Notwithstanding the foregoing,
the underwriters' commissions related or attributable to shares of Registrable
Securities sold or incurred in connection with a registration shall be shared by
all Investors whose Registrable Securities are included in
-10-
such registration, pro rata, in accordance with the aggregate amount of
Registrable Securities sold by such Investors. The Company also will, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with any listing of the securities to be registered on a securities
exchange, and the fees and expenses of any person, including special experts,
retained by the Company.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement:
6.1 Company Indemnity. The Company will, to the extent permitted by
law, indemnify and hold harmless each Investor and underwriter, if any, against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the 1933 Act, the 1934 Act or any other federal or state
law insofar as such losses, claims, damages or liabilities (or action in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any Violation or alleged
Violation by the Company of the 1933 Act, the 1934 Act, any state securities law
or any rule or regulation promulgated under the 1933 Act, the 1934 Act, any
state securities law; and the Company will pay to each Investor or underwriter,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending such loss, claim, damage, liability
or action; provided, however, that the indemnity agreement contained in this
Section 6.1 shall not apply to amounts paid in settlement of such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation that
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Investor, or
underwriter.
6.2 Investor Indemnity. Each Investor will, to the extent permitted by
law, indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person who controls the
Company (within the meaning of the 1933 Act), any underwriter, and any
controlling person of such underwriter against any losses claims damages or
liabilities (joint or several) to which
-11-
any of the foregoing persons may become subject under the 1933 Act, the 1934
Act, or other federal or state law insofar as such losses, claims, damages or
liabilities (or action with respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such person expressly for use in connection with such registration;
and each such Investor will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 6.2, in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 6.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Investor (which consent shall not be unreasonably
withheld), provided, however, that in no event shall any indemnity under this
Section 6.2 exceed the gross proceeds from the offering received by such
Investor.
6.3 Limitations. If the indemnification provided for in this Section 6
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and of the indemnified party 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 fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact related to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
6.4 Additional Provisions. Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control. The obligations of the Company and the
Investors under this Section 6 shall survive the completion of any offering of
Registrable Securities in a registration statement pursuant to this Agreement.
-12-
7. Miscellaneous
7.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the British Virgin Islands, without giving effect to the
conflicts of laws principles thereof.
7.2 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties hereto. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by an Investor to a transferee or assignee of
such securities who, after such assignment or transfer, holds at least
655,308(1) shares of Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalization)
provided:
(a) the Company is, within a reasonable time after such transfer,
furnished with a written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned;
(b) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement, including without
limitation the provisions of Section 4 above; and
(c) such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For purposes of determining the number of
shares of Registrable Securities held by a transferee or assignee, the holdings
of transferees and assignees of a partnership who are partners or retired
partners of such partnership (including spouses and ancestors, linear decedents
and siblings of such partners or spouses who acquire Registrable Securities by
gift, will intestate succession) shall be aggregated together with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices and
taking any action under this Agreement.
--------
1/Revised to reflect the Company's 1 for 7.63 combination (reverse stock split)
which took place on October 18, 2000.
-13-
7.3 Severability. If any provisions of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
7.4 Entire Agreement. This Agreement, the exhibits hereto, and the
documents referenced herein and exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or
oral, among the parties with respect hereto and thereto. The express terms
hereof of this Agreement control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
7.5 Amendment and Waivers. Any term or provision of this Agreement may
be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the Company and the holders of at
least fifty percent (50%) of the Registrable Securities held by the Investors.
Any amendment or waiver effective in accordance with this paragraph shall be
binding upon each holder of any Registrable Securities then outstanding, each
future holder of all Registrable Securities and the Company. Additional holders
of the Company's existing and future series of preference shares or the ordinary
shares issuable or issued upon conversion thereof may be admitted as Investors
under this Agreement at the sole discretion of the Company. Shares held by
investors who are admitted shall be entitled to the same benefits and burdens as
if issued to the Investors hereunder and the ordinary shares issued or issuable
upon conversion of the preference shares issued to the new investors shall be
Registrable Securities and such new investors shall be deemed to be "Investors"
for all purposes hereunder.
7.6 Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be delivered, or
mailed first-class postage prepaid, registered or certified mail,
If to the Company: 9 Columbus Centre, Pelican Drive
Road Town, Tortola
British Virgin Islands
-14-
with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to any To the address shown on the signature
Investor: page hereto, or to such other address as
such Investor may specify by written
notice to the Company.
Such communications shall be deemed given and effective when they are received
by the addressee thereof; but if sent by certified mail in the manner set forth
above, they shall be deemed given and effective three (3) days after being
deposited in the United States mail. Any party may change its address for such
communications by giving notice thereof to the other parties in conformity with
this Section 7.6.
7.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon, and all of which together shall constitute one and
the same instrument.
7.9 Company's Determination. As used in this Agreement, any decision or
determination to be made or effected by the Company shall mean a decision or
determination of a majority of the Company's directors which are independent
from the Investors or any decision or determination made by a committee of the
Company's Board of Directors established for such purpose.
7.10 Original Agreement. The Company and Investors hereby agree that
the Original Agreement is hereby amended and restated in its entirety as set
forth herein.
7.11 Attorneys' Fees. In the event of any arbitration or other dispute
related to or based upon this Agreement, the prevailing party shall be entitled
to recover from the other party its reasonable attorneys' fees and costs.
[signature page follows]
-15-
[SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT]
IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above written.
"COMPANY" UTi WORLDWIDE INC.,
a British Virgin Islands corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
"INVESTORS" PTR HOLDINGS INC.
By: /s/ Ian Whitecourt
-------------------------------------------------
Title: Authorized Signatory
Address: 0 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Virgin Islands
UNION-TRANSPORT HOLDINGS INC.
By: /s/ Xxxx Xxxx
-------------------------------------------------
Title: Authorized Signatory
Address: 0 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Virgin Islands
-16-
