REGISTRATION RIGHTS AGREEMENT
Exhibit 4.5
Execution Copy
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of May 7,
2009, by and among Home Inns & Hotels Management Inc., a Cayman Islands company (the “Company”)
and Xxxxx.xxx International, Ltd., a Cayman Islands company (the “Purchaser”). Terms used but not
otherwise defined herein shall have the meanings assigned to them in that certain Purchase
Agreement dated as of May 7, 2009 (the “Purchase Agreement”) by and between the Company and the
Purchaser.
RECITALS
WHEREAS, the Company and the Purchaser have entered into the Purchase Agreement, pursuant to
which the Company will issue and sell and the Purchaser will purchase, 7,514,503 ordinary shares of
the Company, par value US$0.005 per share (the ordinary shares to be purchased by the Purchaser
from the Company, the “Purchase Shares”), subject to the terms and conditions thereof; and
WHEREAS, it is a condition to the Closing that, among other things, this Agreement has been
executed and delivered by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing premises, mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
AGREEMENT
| 1. | Definitions |
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For the purposes of this Agreement: |
| (a) | Registrable Securities |
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“Registrable Securities” shall mean (i) the Purchase Shares, (ii) the 6,886,262
ordinary shares (represented by 3,442,131 American depositary shares) of the Company
held by the Purchaser at the time of this Agreement (the “Previously Acquired
Shares”), (iii) Ordinary Shares obtained by the Purchaser or an affiliate of the
Purchaser through any stock split, stock dividend or any similar issuance in respect
of the Purchase Shares or the Previously Acquired Shares and (iv) any permitted
acquisition of additional Ordinary Shares after the time of this Agreement by the
Purchaser or an affiliate of the Purchaser pursuant to Article IV of the Purchase
Agreement. |
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Notwithstanding the foregoing, “Registrable Securities” shall exclude any
Registrable Securities sold by a person in a transaction in which rights under this
Agreement are not expressly assigned in accordance with this Agreement, or any
Registrable Securities sold in a public offering, whether sold pursuant to Rule 144
promulgated under the Securities Act of 1933 of the United States of America
(“Securities Act”), or in a registered offering, or otherwise. |
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| (b) | The Outstanding Registrable Securities |
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The number of “the Outstanding Registrable Securities” means the number of Ordinary
Shares held by the Holders which are Registrable Securities. |
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| (c) | Holder |
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“Holder” shall mean the Purchaser and any permitted assignee of the Registrable
Securities to whom rights under this Agreement have been duly assigned in accordance
with this Agreement. |
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| (d) | Form F-3 |
“Form F-3” shall mean any such form under the Securities Act being in effect on the
date hereof or any successor registration form under the Securities Act subsequently
adopted by the Securities and Exchange Commission of the United States of America
(the “Commission”). Such form permits the inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the
Commission.
| 2. | Demand Registration |
| (a) | Request by Holders |
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Subject to Section 9 of this Agreement, if the Company shall receive a written
request from the Holders possessing collectively at least twenty-five percent (25%)
of the Outstanding Registrable Securities that the Company file a registration
statement under the Securities Act covering the registration of Registrable
Securities pursuant to this Section 2, then the Company shall, within ten (10)
Business Days of the receipt of such written request, give written notice of such
request (“Request Notice”) to all the Holders, and use its best efforts to effect,
as soon as practicable, but in any event no later than sixty (60) days after receipt
of the Request Notice, the registration under the Securities Act of all Registrable
Securities that the Holders request to be registered in such registration by
providing written notice to the Company within twenty (20) days after receipt of the
Request Notice, subject only to the limitations set forth in this Section 2. |
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| (b) | Underwriting |
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If the Holders initiating the registration request under this Section 2 (“Initiating
Holders”) intend to distribute the Registrable Securities covered by their request
by means of an underwriting, then they shall so advise the Company as a part of
their request made pursuant to this Section 2 and the Company shall include such
information in the written notice referred to in Clause 2(a). In such an event, the
right of any Holder to include his Registrable Securities in such registration shall
be conditional upon such Holder’s participation in such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders and
such Holder) to the extent provided herein. All the Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Holders of a majority of the
Registrable Securities being registered and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 2, if the underwriter(s)
advise(s) the Company in writing that marketing factors require a limitation of the
number of securities to be underwritten, then the Company shall so advise all the
Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of Registrable Securities that may be
included in the underwriting shall be reduced as required by the underwriter(s) and
allocated among the Holders of Registrable Securities on a pro rata basis according
to the number of the Outstanding Registrable Securities held by each Holder
requesting registration (including the Initiating Holders); provided,
however, that in all public offering of securities, the right of the
underwriter(s) to exclude shares (including Registrable Securities) from the
registration and underwriting as described above shall be restricted so that all
shares that are not Registrable Securities and are held by any other person,
including, without limitation, any person who is an employee, officer or director of
the Company (or any subsidiary of the Company) shall first be excluded from such
registration and underwriting before any Registrable Securities are so excluded. If
any Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter(s), which
notice shall be delivered at least ten (10) Business Days prior to the effective
date of the registration statement. Any Registrable Securities excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the registration. |
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| (c) | Maximum Number of Demand Registrations |
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The Company shall be obligated to effect only three (3) such registrations pursuant
to this Section 2; provided, that a registration requested pursuant to this
Section 2 shall not be |
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deemed to have been effected for purposes of this Section 2(c) unless (i) it has
been declared effective by the Commission, (ii) it has remained effective for the
period set forth in Section 5(a) and (iii) the offering of Registrable Securities
pursuant to such registration is not subject to any stop order, injunction or other
order or requirement of the Commission (other than any such stop order, injunction,
or other requirement of the Commission prompted by act or omission of the Holders of
Registrable Securities). |
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| (d) | Deferral |
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Notwithstanding the foregoing, if the Company furnishes to the Holder or Holders
initiating a registration request under this Section 2 a certificate signed by a
director of the Company stating that in the good faith judgment of the Board, it
would be materially detrimental to the Company and its shareholders for such
registration statement to be filed, then the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the
request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month period. |
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| (e) | Expenses |
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All expenses incurred in connection with any registration, pursuant to this Section
2, including without limitation all federal and “blue sky” registration, filing and
qualification fees, printer’s and accounting fees, and fees and disbursements of
counsel for the Company and the Initiating Holders, shall be borne by the Company.
Each Holder participating in a registration pursuant to this Section 2 shall bear
such Holder’s proportionate share (based on the total number of shares sold in such
registration other than for the account of the Company) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection with
such offering by the Holders. Notwithstanding the foregoing, the Company shall not
be required to pay for any expenses of any registration proceeding begun pursuant to
this Section 2 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered, unless
the Holders of a majority of the Outstanding Registrable Securities agree that such
registration constitutes the use by the Holders of one (1) demand registration
pursuant to Section 2 (in which case such registration shall also constitute the use
by all Holders of Registrable Securities of one (1) such demand registration);
provided, further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company not known to the Holders at the time of their
request for such registration and have withdrawn their request for registration with
reasonable promptness after learning of such material adverse change, then the
Holders shall not be required to pay any of such expenses and such registration
shall not constitute the use of a demand registration pursuant to this Section 2. |
| 3. | Piggyback Registrations |
Subject to Section 9 of this Agreement, the Company shall notify all the Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering of securities of the
Company and will afford each such Holder an opportunity to include in such registration statement
all or any part of the Registrable Securities then held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the Registrable Securities held by
such Holder shall within twenty (20) days after receipt of the above-described notice from the
Company, so notify the Company in writing, and in such notice shall inform the Company of the
number of Registrable Securities such Holder wishes to include in such registration statement. If a
Holder decides not to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
| (a) | Underwriting |
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If a registration statement under which the Company gives notice under this Section
3 is for an underwritten offering, then the Company shall so advise the Holders. In
such event, the right of any such Holder’s Registrable Securities to be included in
a registration pursuant to this |
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Section 3 shall be conditional upon such Holder’s participation in such underwriting
and the inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein. All the Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares from the registration and the underwriting, and
the number of shares that may be included in the registration and the underwriting
shall be allocated, first to the Company, and second, to each of the
Holders requesting inclusion of their Registrable Securities in such registration
statement on a pro rata basis based on the total number of Registrable Securities
then held by each such Holder; provided, however, that the right of
the underwriter(s) to exclude shares (including Registrable Securities) from the
registration and underwriting as described above shall be restricted so that all
shares that are not Registrable Securities and are held by any other person,
including, without limitation, any person who is an employee, officer or director of
the Company (or any subsidiary of the Company) shall first be excluded from such
registration and underwriting before any Registrable Securities are so excluded. If
any Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter(s),
delivered at least ten (10) Business Days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration. |
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| (b) | Expenses |
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All expenses incurred in connection with a registration pursuant to this Section 3
(excluding underwriters’ and brokers’ discounts and commissions relating to shares
sold by the Holders), including, without limitation all federal and “blue sky”
registration, filing and qualification fees, printer’s and accounting fees, and fees
and disbursements of counsel for the Company, shall be borne by the Company. |
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| (c) | Not Demand Registration |
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Registration pursuant to this Section 3 shall not be deemed to be a demand
registration as described in Section 2 above. Except as otherwise provided herein,
there shall be no limit on the number of times the Holders may request registration
of Registrable Securities under this Section 3. |
| 4. | Form F-3 Registration |
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| 4.1 | Subject to Section 9 of this Agreement, in case the Company shall, at any time after it has
become eligible to use Form F-3, receive from any Holder or Holders of 25% of all the
Outstanding Registrable Securities a written request or requests that the Company effect a
registration on Form F-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, then the Company will: |
| (a) | Notice |
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promptly give written notice of the proposed registration and the Holder’s or
Holders’ request therefor, and any related qualification or compliance, to all other
Holders of Registrable Securities; and |
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| (b) | Registration |
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as soon as practicable, but in any event no later than sixty (60) days after receipt
of the Request Notice, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holders or Holders’ Registrable
Securities as are specified in such request, together with all or such portion of
the Registrable Securities of any other Holder or Holders joining in such |
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request as are specified in a written request given within twenty (20) days after
the Company provides the notice contemplated by paragraph (a) of this Section 4.1.
| 4.2 | Expenses |
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The Company shall pay all expenses incurred in connection with each registration requested
pursuant to this Section 4 (excluding underwriters’ or brokers’ discounts and commissions
relating to shares sold by the Holders), including without limitation federal and “blue sky”
registration, filing and qualification fees, printer’s and accounting fees, and fees and
disbursements of counsel for the Company and the Holders. |
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| 4.3 | Deferral |
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Notwithstanding the foregoing, if the Holder or Holders of 25% of all the Outstanding
Registrable Securities request the filing of a registration statement pursuant to this
Section 4 and the Company furnishes to such Holder or Holders a certificate signed by a
director of the Company stating that in the good faith judgment of the Board, it would be
materially detrimental to the Company and its shareholders for such registration statement
to be filed, then the Company shall have the right to defer such filing for a period of not
more than ninety (90) days after receipt of the request of the initiating Holders;
provided, however, that the Company may not utilize this right more than
once in any twelve (12) month period. |
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| 4.4 | Not Demand Registration |
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Form F-3 registrations pursuant to this Section 4 shall not be deemed to be demand
registrations as described in Section 2 above. Except as otherwise provided herein, there
shall be no limit on the number of times the Holder or Holders may request registration of
Registrable Securities under this Section 4. |
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| 5. | Obligations of the Company |
Whenever required to effect the registration of any Registrable Securities under this
Agreement, the Company shall, as expeditiously as reasonably possible:
| (a) | Registration Statement |
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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 remain effective for a period of time required for the
disposition of such Registrable Securities by the Holders thereof, provided,
however, that the Company shall not be required to keep any such
registration statement effective for more than ninety (90) days or in the case of
registration on Form F-3, a period of two (2) years; |
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| (b) | Amendments and Supplements |
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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 Securities Act
with respect to the disposition of all securities covered by such registration
statement; |
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| (c) | Prospectuses |
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furnish to the Holders such number of conformed copies of the applicable
registration statement and each such amendment and supplement thereto (including in
each case all exhibits), and copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them that are included in such
registration; |
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| (d) | Blue Sky |
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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 Holders, 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; |
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| (e) | Underwriting |
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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(s) of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement; |
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| (f) | Notification |
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notify each Holder of Registrable Securities covered by such registration statement
at any time (i) when a prospectus relating thereto is required to be delivered under
the Securities 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, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the initiation
of any proceedings for that purpose, (iii) of the receipt by the Company or its
legal counsel of any notification with respect to the suspension of the
qualification of the Ordinary Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, and (iv) of any request by the
Commission for amendments or supplements to such Registration Statement or the
prospectus included therein or for additional information; |
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| (g) | Post-Effective Amendments |
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upon the occurrence of any event contemplated by Section 5(f)(i) above, promptly
prepare a post-effective amendment to such registration statement or a supplement to
the related prospectus or file any other required document so that, as thereafter
delivered to the Holders, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
If the Company notifies the Holders in accordance with Section 5(f)(i) above to
suspend the use of the prospectus until the requisite changes to the prospectus have
been made, then the Holders shall suspend use of such prospectus and use their
reasonable efforts to return to the Company all copies of such prospectus (at the
Company’s expense) other than permanent file copies then in such Holder’s
possession, and the period of effectiveness of such registration statement provided
for above shall be extended by the number of days from and including the date of the
giving of such notice to the date Holders shall have received such amended or
supplemented prospectus pursuant to this Section 5(g); |
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| (h) | Opinion and Comfort Letter |
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furnish, at the request of any Holder requesting registration of Registrable
Securities, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through underwriters, or,
if such securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated as of 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 and reasonably satisfactory to a
majority in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities and (ii) a “comfort” letter dated as of such date, from the independent
auditors of the Company, in form and substance as is customarily given by
independent auditors to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, |
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addressed to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities; |
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| (i) | Compliance with Securities Law |
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otherwise use its reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make earnings statements satisfying the
provisions of Section 11(a) of the Securities Act generally available to the Holders
no later than 45 days after the end of any twelve-month period (or 90 days, if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in an underwritten public offering,
or (ii) if not sold to underwriters in such an offering, beginning with the first
month of the Company’s first fiscal quarter commencing after the effective date of
the registration statement, which statements shall cover said twelve-month periods; |
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| (j) | Listing Applications |
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use its reasonable efforts to cause all such Registrable Securities to be listed on
each securities exchange or quotation system on which similar securities issued by
the Company are listed or traded; |
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| (k) | Company Disclosure |
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make reasonably available for inspection by a maximum of two representatives of the
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained by such
representative or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and cause the Company’s
officers, directors and employees to supply all relevant information reasonably
requested by such representative or any such underwriter, attorney, accountant or
agent in connection with the registration; and |
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| (l) | Transfer Agent |
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use reasonable efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Securities, including with respect to
the transfer of physical stock certificates into book-entry form in accordance with
any procedures reasonably requested by the Holders or the underwriters. |
| 6. | Furnish Information |
It shall be a condition precedent to the obligations of the Company to take any action
pursuant to Sections 2, 3 or 4 that the selling Holder or Holders shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them, and the intended method
of disposition of such securities as shall be required to timely effect the registration of their
Registrable Securities.
| 7. | Indemnification |
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In the event any Registrable Securities are included in a registration statement under Section 2, 3 or 4: |
| (a) | By the Company |
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To the extent permitted by law the Company will indemnify and hold harmless each
Holder, the partners, officers and directors of each Holder, any underwriter (as
determined in the Securities Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the “1934 Act”), against any losses,
claims, damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or violations
(collectively a “Violation”): |
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| (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; |
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| (ii) | the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein
not misleading; or |
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| (iii) | any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or any rule
or regulation promulgated under the Securities Act, the 1934 Act or any federal
or state securities law in connection with the offering covered by such
registration statement; |
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in paragraph 7(a) 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 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 which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such registration
by such Holder, partner, officer, director, underwriter or controlling person of
such Holder. |
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| (b) | By Selling Holders |
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To the extent permitted by law, each selling Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder’s partners,
directors or officers or any person who controls such Holder within the meaning of
the Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director, officer,
controlling person, underwriter or other such Holder, partner or director, officer
or controlling person of such other Holder may become subject under the Securities
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in 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 Holder expressly for use in connection with such registration; and
each such Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter or other
Holder, partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage, liability
or action: provided, however, that the indemnity agreement contained
in this paragraph 7(b) 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 Holder, which consent shall not be unreasonably withheld; and
provided, further, that the total amounts payable in indemnity by a
Holder under this paragraph 7(b) in respect of any Violation shall not exceed the
net proceeds received by such Holder in the registered offering out of which such
Violation arises. |
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| (c) | Contribution |
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If the indemnification provided for in this Section 7 from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then the indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in connection with the
actions which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of such |
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indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. If the allocation provided in this paragraph (c) is
not permitted by applicable law, the parties shall contribute based upon the
relevant benefits received by the Company from the initial offering of the
Registrable Securities on the one hand and the net proceeds received by the Holders
from the sale of the Registrable Securities on the other. |
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The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 7(c) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No Person (as defined in the
0000 Xxx) 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. |
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| (d) | Notice |
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Promptly after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 7, deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall relieve such
indemnifying party of liability to the indemnified party under this Section 7 to the
extent the indemnifying party is prejudiced as a result thereof, but the omission so
to deliver written notice to the indemnified party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 7. |
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| (e) | Survival |
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The obligations of the Company and the Holders under this Section 7 shall survive
until the fifth anniversary of the completion of any offering of Registrable
Securities in a registration statement, regardless of the expiration of any statutes
of limitation or extensions of such statutes. |
| 8. | No Registration Rights to Third Parties |
Without the prior written consent of the Holders of a majority in interest of the Outstanding
Registrable Securities, the Company covenants and agrees that it shall not grant, or cause or
permit to be created, for the benefit of any person or entity any registration rights of any kind
(whether similar to the demand, “piggyback” or Form F-3 registration rights described in this
Agreement, or otherwise) relating to shares or any other voting securities of the Company, other
than rights that are subordinate in right to the Holders. The Holders acknowledge the existence of
the registration rights granted to certain shareholders of the Company pursuant to a shareholders
agreement dated as of June 29, 2006, by and among the Company and certain shareholders of the
Company (the “Existing Registration Rights Agreement”). The Holders agree the existence of the
Existing Registration Rights Agreement does not and shall not constitute a breach of this Section
8.
| 9. | Exercise of Registration Rights by the Holder |
9
Prior to the date that is 270 days after the date of the Closing, the Company shall have no
obligations pursuant to Sections 2, 3 and 4 of this Agreement with respect to any Registrable
Securities proposed to be sold by a Holder in a registration statement pursuant to Section 2, 3 or
4; provided, that if a request is made by the Holders pursuant to Section 2 of this Agreement
within 180 days after the Closing, then on the date that is 270 days after the date of the Closing
a registration statement that can be relied upon for the disposition of Registrable Securities by
the Holders thereof will have been declared effective by the Commission.
| 10. | Assignment |
The registration rights under this Agreement may be assigned by any Holder; provided however
that:
| (a) | no party may be assigned any of such rights unless the Company is given written
notice by the assigning party at the time of such assignment stating the name and
address of the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; and |
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| (b) | any such assignee shall receive such assigned rights subject to the terms and
conditions of this Agreement, including without limitation the provisions in this
Section 10. |
| 11. | Reports Under the 1934 Act |
With a view to making available to the Holders the benefits of Rule 144 and any other rule or
regulation of the Commission that may at any time permit a Holder to sell securities of the Company
to the public without registration or pursuant to a registration on Form F-3, the Company agrees
to:
| (a) | make and keep public information available, as those terms are understood and
defined in Rule 144, at all times after the date hereof; |
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| (b) | file with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the 1934 Act; and |
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| (c) | furnish to any Holder, so long as the Holder owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has complied with
the reporting requirements of Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company), the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form F-3 (at any time after it so qualifies), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested to avail any Holder of any rule or regulation of the Commission
that permits the selling of any such securities without registration or pursuant to
such form. |
| 12. | Termination of the Company’s Obligations |
The Company shall have no obligations pursuant to Sections 2, 3 and 4 with respect to any
Registrable Securities proposed to be sold by a Holder in a registration pursuant to Section 2, 3
or 4 (i) at such date after the date hereof at which such Holder, (A) can sell all shares held by
it in compliance with Rule 144 or (B) holds one percent (1%) or less of the Company’s outstanding
Ordinary Shares and all Registrable Securities held by such Holder (together with any affiliate of
the Holder with whom such Holder must aggregate its sales under Rule 144) can be sold in any three
(3) month period without registration in compliance with Rule 144. In addition, the Company shall
have no obligations pursuant to Sections 2 and 4 hereof from and after such time as the Holders in
the aggregate beneficially own, directly or indirectly, less than fifteen percent (15%) in number
of the Purchase Shares (including Ordinary Shares represented by American Depositary Shares of the
Company).
| 13. | Term and Amendment |
| (a) | Term |
10
This Agreement shall become effective immediately at the Closing, and may be
terminated at any time with the written consent of the Holders of two-thirds (?) of
the Registrable Securities then outstanding and entitled to the registration rights
set forth in this Agreement. |
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| (b) | Amendment |
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Any provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holders of a
majority of the Registrable Securities then outstanding and entitled to the
registration rights set forth in this Agreement. Any amendment or waiver effected in
accordance with this Section 13 shall be binding upon all parties hereto. |
| 14. | Severability |
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable
or incapable of performance in any respect, the validity, legality, enforceability or performance
of the remaining provisions hereof shall not thereby in any way be affected or impaired, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
| 15. | Entire Agreement |
This Agreement constitutes the entire agreement and understanding between the parties in
connection with the subject matter of this Agreement and supersedes all previous proposals,
representations, warranties, agreements or undertakings relating thereto whether oral, written or
otherwise and no party hereto has relied or is entitled to rely on any such proposals,
representations, warranties, agreements or undertakings.
| 16. | Specific Performance. |
The parties hereto agree that irreparable damage would occur in the event any provision of
this Agreement were not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other remedy at law or
equity.
| 17. | Counterparts |
This Agreement may be executed in any number of counterparts and by the parties on separate
counterparts, each of which, when so executed and delivered, shall be an original but all the
counterparts shall together constitute one and the same instrument.
| 18. | Notices and Other Communication |
Any notice or other communication to be given under this Agreement shall be in writing and may
be sent by post or delivered by hand or given by facsimile or by courier to the address or fax
number from time to time designated, the initial address and fax number so designated by each party
being set out in Schedule 1 attached hereto. Any such notice or communication shall be sent to the
party to whom it is addressed and must contain sufficient reference and/or particulars to render it
readily identifiable with the subject-matter of this Agreement. If so delivered by hand or given by
facsimile such notice or communication shall be deemed received on the date of dispatch and if so
sent by post shall be deemed received three (3) Business Days after the date of dispatch (in the
case of local mail) and five (5) Business Days after the date of dispatch (in the case of overseas
registered/certified mail).
Each person making a communication hereunder by facsimile shall promptly confirm by telephone
to the person to whom such communication was addressed, but the absence of such confirmation shall
not affect the validity of any such communication.
| 19. | Governing Law and Jurisdiction |
This Agreement shall be governed by and construed in accordance with the laws of State of New
York, U.S.A. and the parties irrevocably submit to the non-exclusive jurisdiction of the New York
courts in respect of this Agreement.
11
| 20. | Aggregation of Shares |
All Ordinary Shares held or acquired by affiliated entities or persons of the Purchaser shall
be aggregated together for the purpose of determining the availability of any rights under this
Agreement.
| 21. | Effectiveness |
Notwithstanding anything to the contrary in this Agreement, this Agreement shall only become
effective subject to, and contemporaneously with, the closing of the transactions contemplated by
the Purchase Agreement.
(Signature Page to Follow)
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first above written.
| COMPANY Home Inns & Hotels Management Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PURCHASER Xxxxx.xxx International, Ltd. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
SCHEDULE 1
ADDRESSES AND FAX NUMBERS FOR NOTIFICATION
ADDRESSES AND FAX NUMBERS FOR NOTIFICATION
1.
|
Name : | Xxxxx.xxx International, Ltd. | ||
| Address: | 0X, Xxxxx Xxxxxxxx Xx. 00 Xx Xxxx Xxxx Xxxxxxxx 200335, People’s Republic of China |
|||
| Fax No.: | x00 (00) 0000-0000 | |||
| Attention: | Xxxx Xxx Xxx, CFO | |||
| With a copy to: | ||||
| Name: | Shearman & Sterling LLP | |||
| Address: | 12 Floor, Gloucester Tower Landmark, 00 Xxxxx’x Xxxx Xxxxxxx Xxxx Xxxx |
|||
| Fax No. | x000 0000-0000 | |||
| Attention: | Xxxxxxx X. Puff | |||
2.
|
Name: | Home Inns & Hotels Management Inc. | ||
| Address: | Xx. 000, Xxx Xxx Xxxx Xx Xxx Xxxxxxxx Xxxxxxxx 000000, People’s Republic of China |
|||
| Fax No.: | x00 (00) 0000-0000 | |||
| Attention: | Ms. Xxx Xx, CFO | |||
| With a copy to: | ||||
| Name: | Xxxxxx & Xxxxxxx LLP | |||
| Address: | 00xx Xxxxx, Xxx Xxxxxxxx Xxxxxx 0 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx Xxxx |
|||
| Fax No. | x000 0000-0000 | |||
| Attention: | Xxxxx X. Xxxxx |
