Exhibit 10.1
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LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT
This LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
as of _______________, by and among Eimo Oyj, a company organized under the laws
of the Republic of Finland (the "Company"), and A. Xxxxxxxxx Xxxxxxx, Xxxxxx X.
Xxxxxxx, and Xxxxxx X. Xxxxxxxxx, Xx. (individually, a "U.S. Holder" and
collectively, the "U.S. Holders") and Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Topi
Xxxxxxxx, and Xxxxxxxx Jukko (individually, a "Finland Holder" and collectively,
the "Finland Holders").
RECITALS
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A. Triple S Plastics, Inc., a Michigan corporation (the "Target"), the
Company, and Spartan Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Company (the "Merger Sub"), are parties to a certain Amended
and Restated Agreement and Plan of Merger dated as of May 25 ,2001 (the "Merger
Agreement") pursuant to which the Company will acquire all of the issued and
outstanding shares of capital stock of the Target through the merger of the
Merger Sub with and into the Target (the "Merger").
B. U.S. Holders hold an equity interest in Target which will be
converted, pursuant to the Merger Agreement, into the right to receive an equity
interest in the Company.
C. It is a condition of the Merger Agreement that the parties to this
Agreement (the U.S. Holders, the Finland Holders and the Company) shall have
executed and delivered this Agreement prior to the Effective Time (as defined in
the Merger Agreement).
D. The Company expects to receive substantial benefits as a result of
the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual obligations
and covenants hereinafter set forth, the parties hereto agree as follows:
Section 1. Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall mean, with respect to any person or entity, any person or
entity which directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such person or
entity.
"American Depository Shares" shall mean the American Depository Shares
(which, pursuant to and as further described in Section 2.1(c) of the Merger
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Agreement, may be evidenced by one or more American Depository Receipts)
representing the right to receive Ordinary Shares which shall be delivered to
U.S. Holders as Merger Consideration pursuant to Section 2.1(c) of the Merger
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Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission or any other United States agency at the time administering the
Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar United States rule or statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Finland Holders" has the meaning set forth in the first paragraph of this
Agreement.
"Initial Shares" means the American Depositary Shares issued pursuant to
the Merger or any Ordinary Shares issued in exchange therefor, or any American
Depositary Receipts or ordinary shares issuable to a U.S. Holder pursuant to
options outstanding as of the Effective Time.
"Ordinary Shares" shall mean the ordinary Series A shares of the Company.
"Person" shall mean an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Priority Shares" shall mean Registrable Securities senior in priority of
registration rights to the Registrable Shares. The Registrable Shares shall not
constitute Priority Shares.
"Recitals" shall mean the recitals to this Agreement which constitute
integral terms hereof.
"Registrable Securities" shall mean (a) the Registrable Shares and (b) any
other shares of the capital stock of the Company having registration rights;
provided, however, that such securities shall only be treated as Registrable
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Securities if and so long as (i) they have not been registered or sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, (ii) they have not been sold pursuant to Rule 144 and
(iii) the registration rights with respect to such shares have not otherwise
terminated.
"Registrable Shares" shall mean the Initial Shares; provided, however, that
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the Initial Shares shall only constitute Registrable Shares if and so long as
(i) they have not been registered or sold through a broker or dealer or
underwriter in a public distribution or a public securities transaction, (ii)
they have not been sold pursuant to Rule 144 or Rule 145, and (iii) the
registration rights with respect to such shares have not otherwise terminated.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise stated
below, incurred in complying with Section 2.1, including, without limitation,
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all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
and expense of any special audits incident to or required by any such
registration, compensation of regular employees of the Company and expenses of
all marketing and promotional efforts reasonably requested by the managing
Underwriter relating to all securities being offered in an offering and which
are customarily paid by issuers or sellers of securities and such other fees and
disbursements of Underwriters customarily paid by issuers or sellers of
securities (but not the fees and disbursements of Underwriters' counsel);
provided, however, that U.S. Holders shall bear all fees and expenses of their
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own counsel, underwriting discounts and commissions, brokerage fees or
commissions and transfer taxes, in each case, if any, relating to the sale of
Registrable Shares.
"Registration Rights Period" shall mean, as to each U.S. Holder, the period
beginning on the effective date of the Merger and ending on the earlier to occur
of:
(i) (a) in the event the applicable U.S. Holder is not an Affiliate
of the Company, on the first date on which the American
Depository Shares held by such U.S. Holder cease to
constitute Registrable Securities; provided, however, that,
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notwithstanding anything contained herein to the contrary,
the Registration Rights Period shall end no later than the
earlier of:
(A) the date which is four (4) years after the date of this
Agreement;
(B) the first date on which all the Registrable Shares then
held by U.S. Holders may be publicly sold (x) in a
single transaction within the volume limitations in
Rule 144(e)(1) (regardless whether such sale is
required to be effected within such limits), (y) in a
series of transactions over any six (6) consecutive
months, or (z) the U.S. Holders hold less than five
percent (5%) of the outstanding shares of the Company;
or
(b) in the event the applicable U.S. Holder is an Affiliate of
the Company, on the later of (i) ninety (90) days after such
U.S. Holder ceases to be an Affiliate of the Company, and
(ii) the first date upon which the U.S. Holders would not be
deemed an underwriter under Section 2(11) of the Securities
Act with respect to the sale of the Registrable Shares;
(ii) the date upon which the Company has either caused all
Registrable Shares to be eligible to be registered pursuant to
Section 2 of this Agreement (and, in fact, all Registrable
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Shares so registered have been sold) or has caused not less than
eighty percent (80%) of the aggregate Registrable Shares to be
eligible to be registered pursuant to Section 2 of this
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Agreement (and, in fact, all Registrable Shares so registered
have been sold) on two separate occasions and pursuant to two
separate registration statements; and
(iii) all of the Registrable Shares shall be eligible for sale
pursuant to Section 9 or Section 10 and the Registrable Shares
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sought to be sold, in fact, have been sold under such applicable
provision.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act.
"Rule 145" shall mean Rule 145 promulgated under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar United States rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"U.S. Holders" has the meaning set forth in the first paragraph of this
Agreement.
Section 2. Piggyback/Incidental Registration.
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2.1 Notice of Registration. If at any time or from time to time during
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the Registration Rights Period the Company shall determine to register in the
United States any of its equity securities, either for its own account or the
account of stockholders of the Company, other than (a) registration relating
solely to employee benefit plans registered on Form S-8 or any successor form
thereto (but only so long as securities issuable upon the exercise of
transferable options may not be and are not being registered thereunder), (b) a
registration relating solely to a transaction meeting the requirements of Rule
145 under the Securities Act, (c) a registration in which the only equity
securities being registered are Ordinary Shares issuable upon conversion of
convertible debt securities which are also being registered, or (d) constituting
a registered exchange offer or shelf registration entered into pursuant to or in
connection with an offering pursuant to Rule 144A under the Securities Act, the
Company will give written notice (the "Company Notice"), at its expense, to U.S.
Holders of its intention to do so at least fifteen (15) days prior to the filing
of a registration statement with respect to such registration with the
Commission. If a U.S. Holder desires to dispose of all or part of U.S. Holders's
Registrable Shares, such U.S. Holder may request registration thereof in
connection with Company's registration by delivering to the Company, within ten
(10) days after receipt of the Company Notice, written notice of such request
(the "U.S. Holders Notice") stating the number of shares of Registrable Shares
to be disposed of and the intended method of disposition of such shares by such
U.S. Holder. The Company shall use its reasonable best efforts to cause all of
the Registrable Shares specified in the U.S. Holders Notice to be registered
under the Securities Act pursuant to the registration statement referred to in
the Company Notice (and any related qualification under blue sky laws) so as to
permit the sale or other disposition (in accordance with the intended methods
thereof as aforesaid) by the U.S. Holder of the Registrable Shares so
registered, subject, however, to the limitations set forth in Section 2.2; and,
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provided, however, that the Company shall not be required to grant any
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concession or additional rights or other consideration to any other Person to
secure the right of any U.S. Holder to participate in such registration.
2.2 Limitations on Piggyback/Incidental Registration. (a) If the
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registration of which the Company gives notice pursuant to Section 2.1 above is
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for the purpose of permitting the disposition of securities by the Company or
any other Person pursuant to a firm commitment underwritten offering, the
Company shall so advise the U.S. Holders as a part of the Company Notice given
pursuant to Section 2.1. In such event, the right of the U.S. Holders to
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registration pursuant to Section 2.1 shall be conditioned upon the applicable
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U.S. Holder's participation in such underwriting (if any), and the inclusion of
Registrable Shares in the offering and/or underwriting shall be limited to the
extent provided herein. U.S. Holders shall sell the Registrable Shares included
in such offering to or through the Underwriter(s) (if any) of the securities
being registered for the account of the Company (or otherwise selected by the
Company, in its sole discretion, to manage such underwriting) upon terms
generally comparable to the terms applicable to the Company (except that the
Company shall bear all Registration Expenses to the extent provided in Section
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4).
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(b) If requested in writing to do so in good faith by the managing
Underwriter of an underwritten offering, the Company shall have the right to
limit the aggregate size of the offering or decrease the number of Registrable
Shares to be included therein by U.S. Holders to the extent necessary to reduce
the number of securities to be included in the registration to the level
recommended by the managing Underwriter, and only securities which are to be
included in the underwriting may be included in the registration. U.S. Holders
selling Registrable Shares in the underwritten offering shall (together with the
Company and other holders of the Registrable Securities distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing Underwriter selected for such underwriting by
the Company.
(c) Notwithstanding any other provision of this Section 2.2, if the
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managing Underwriter (or, if there is no managing Underwriter, then the Company)
determines that marketing factors or its contractual obligations with respect to
Priority Shares require a limitation of the number of securities to be
underwritten or offered, then the Company shall so advise all holders of
Registrable Securities requesting to be included in the registration and
underwriting, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
holders of Registrable Securities requesting to be included in the registration
and underwriting as follows:
(i) Whenever the number of shares which may be registered
pursuant to Section 2.1 is limited by the provisions of Section 2.2,
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the U.S. Holders shall have priority as to sales over the other
holders of the Company's securities without registration rights, and
the Company shall cause such other holders to withdraw from such
offering to the extent necessary to allow the U.S. Holders to include
all of the shares so requested to be included within such
registration.
(ii) Whenever the number of shares which may be registered
pursuant to Section 2.1 is still limited by the provisions of this
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Section 2.2, after the withdrawal of the other holders of the
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Company's securities, the Company, together with the holders of
Priority Shares that have the right to participate in the firm
commitment underwritten offering pursuant to registration rights
granted by the Company (but only to the extent required by the terms
of any grants of such registration rights), shall have priority as to
participation in such registration over U.S. Holders. In furtherance
thereof, each U.S. Holder further agrees that he shall withdraw his
Registrable Shares from such registration to the extent necessary to
allow the Company to include (A) seventy percent (70%) of the
securities which the Company desires to sell for its own account, and
(B) all shares of Registrable Securities which are required to be
included in such registration pursuant to the exercise of any demand
registration rights which entitle the holder thereof to include
Registrable Securities in such registration.
(iii) The U.S. Holders, along with the holders of Registrable
Securities that have the right to participate in the firm commitment
underwritten offering pursuant to incidental registration rights
granted by the Company after the date of this Agreement, shall, unless
such incidental registration rights provide to the contrary, share in
the available amount of securities which may be included in the
registration in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by them at the time
of filing the registration statement from and to the extent the
Company may reasonably bind such other holders to do so, except that
Registrable Securities (other than Priority Shares), shall be excluded
in proportion, as nearly as practicable, to the respective amounts of
such securities held by the holders thereof at the time of filing the
registration statement before any Priority Shares requested to be
included in the registration and underwriting are excluded.
(iv) In making the determinations contemplated by Section 2.1, a
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managing Underwriter or the Company may consider whether the inclusion
of any securities will affect the number of securities that can be
sold in an orderly fashion within a price range acceptable to the
Company (or, if the Company is not selling any securities in such
registration, to the prospective selling holders) and the Company
shall not be required to grant any concession or additional rights or
pay any additional consideration to any holder of Registrable
Securities to secure the right of U.S. Holders to participate in any
registration.
(v) If (A) as a result of the proration provisions of this
Section 2.1, a U.S. Holder is not entitled to include all such
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Registrable Shares which such U.S. Holder requested to include in such
registration, or (B) the terms of the proposed compensation to the
Underwriters change in a manner materially adverse to the U.S. Holders
from those described in the Company Notice, any U.S. Holders may by
notice in writing elect to withdraw his request to include any
Registrable Shares in such registration (a "Withdrawal Election");
provided, however, that a Withdrawal Election shall be irrevocable and
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such U.S. Holder shall no longer have any right to include any
Registrable Shares in the registration as to which such Withdrawal
Election was made. U.S. Holders shall give any Withdrawal Election as
promptly as possible and, in no event, later than five (5) business
days after notice of the terms of the proposed underwriting.
(vi) To facilitate the allocation of shares in accordance with
the above provisions, the Company or the Underwriters may round the
number of shares allocated to any holder of Registrable Securities to
the nearest 100 shares.
(vii) The Company shall use its reasonable best efforts to
provide that the number of shares of Registrable Securities required
to satisfy any Underwriters' over-allotment option shall be allocated
pro rata among the Company and all holders of securities to be
included in the offering on the basis of the relative number of
securities otherwise to be included by each of them in the
registration provided that the Company shall not be required to grant
any concession or additional rights or pay any additional
consideration to any holder of Registrable Securities to secure such
allocation.
2.3 Designation of Underwriter. In the case of any registration which is
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proposed to be effected as to which Section 2.1 is applicable, the Company shall
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have the sole and exclusive right to designate the Underwriter(s) therefor (if
any), and U.S. Holders shall sell Registrable Shares only pursuant to such
underwriting (if any).
2.4 Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it or pursuant to the demand
registration rights of any Person, which registration gives rise to rights of
U.S. Holders under Section 2.1, prior to the effectiveness of such registration
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whether or not any U.S. Holder has elected to include any Registrable Shares in
such registration.
Section 3. Lock-Up Agreement.
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Each U.S. Holder agrees that, if requested in writing by the Company or by
the managing Underwriter of any offering effected pursuant to this Agreement,
and if such U.S. Holder is at such time an officer or director of the Company,
or an Affiliate thereof, or owns of record more than one percent (1%) of the
Ordinary Shares then outstanding (including for purpose of such calculation all
Ordinary Shares such U.S. Holder has the right to acquire and all Ordinary
Shares represented by American Depositary Shares), each U.S. Holder shall not
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of or transfer his economic risk with respect to any
securities of the Company (other than those included in the registration) within
seven (7) days before or one hundred eighty (180) days after the effective date
of a registration statement filed pursuant to this Agreement, unless such
limitations are waived in writing by the Company and the managing Underwriter.
Each U.S. Holder agrees that the Company may instruct its transfer agent to
place stop transfer notations in its records to enforce the provisions of this
Section 0.
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Section 4. Expenses of Registration.
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The Company shall bear all Registration Expenses incurred in connection
with all registrations undertaken pursuant to Section 2, subject to the
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limitations set forth in the definition of Registration Expenses.
Notwithstanding the foregoing, the Company shall not be required to pay for any
Registration Expenses of any registration proceeding begun under Section 2, the
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request for which has been subsequently withdrawn by a U.S. Holder other than
pursuant to Section 2(a)(v) or is otherwise not successfully completed due to no
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fault of the Company, unless the withdrawal is based upon material adverse
information concerning the Company, which the Company had not yet publicly
disclosed at the time of such request.
Section 5. Registration Procedures.
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5.1 Obligations of the Company. In the case of each registration of any
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Registrable Shares effected by the Company pursuant to this Agreement, the
Company will keep U.S. Holders advised in writing as to the initiation of such
registration and as to the completion thereof. The Company will:
(a) Prepare and file with the Commission a registration statement and
such amendments and supplements as may be necessary and use its reasonable best
efforts to cause such registration statement to become and remain effective for
at least ninety (90) days or until the distribution described in the
registration statement has been completed, whichever first occurs;
(b) Furnish to U.S. Holders and to the Underwriters of the securities
being registered such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
Underwriters may reasonably request in order to facilitate the public offering
of such securities;
(c) Use its reasonable best efforts to register or qualify the
securities covered by such registration statement under such other securities or
state blue sky laws of such U.S. jurisdictions as the Underwriters or U.S.
Holders shall reasonably request, and to do any and all other acts and things
which may be necessary under such securities or blue sky laws to enable U.S.
Holders to consummate the public sale or other disposition in such jurisdictions
of the securities owned by U.S. Holders; provided that the Company shall not be
required in connection therewith or as an election thereto to qualify to do
business or to file a general consent to service of process in any such
jurisdiction or to take any action which could subject it to tax, including tax
on its corporate income or assets, or to the service of process (other than in
connection with such registration) in any state where it is not subject thereto;
and
(d) Use its reasonable best efforts to cause all such Registrable
Shares registered pursuant hereto to be listed on the principal securities
exchange or automated quotation system on which similar securities issued by the
Company are then listed, if the listing of such securities is then permitted
under the rules of such exchange, or trading market or quotation system on which
such securities issued by the Company are then listed.
5.2 Obligations of U.S. Holders. (a) As a condition to including any
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Registrable Shares in a registration, the Company may require (i) that the
applicable U.S. Holder furnish to the Company such information regarding such
U.S. Holder and the contemplated distribution of such U.S. Holder's Registrable
Shares as is required to be included in the Registration Statement, and (ii)
that such information be furnished to the Company in writing and signed by the
U.S. Holder and stated to be specifically for use in the related registration
statement, prospectus, offering circular or other document incident thereto.
(b) U.S. Holders shall not (until further notice) effect sales of
Registrable Shares after receipt of written notice from the Company to suspend
sales to permit the Company to correct or update a registration statement or
prospectus, and the Company shall make such amendment in a reasonably commercial
manner; provided, that the Company is able to do so in compliance with
applicable securities laws. The period during which the registration statement
remains effective pursuant to the Agreement shall be extended for a period of
time equal to the period for which U.S. Holders refrained from selling pursuant
to this Section 5.2(b).
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Section 6. Indemnification.
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6.1 Scope of Indemnification. The Company will indemnify U.S. Holders
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against all claims, losses, damages or liabilities (or actions in respect
thereof), to which U.S. Holders may be subject under the Securities Act or under
any other statute or at common law, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of any material fact contained, on the effective date thereof,
in a registration statement under which Registrable Shares were registered under
the Securities Act pursuant to this Agreement, any preliminary prospectus or
final prospectus contained therein, or any summary prospectus issued in
connection therewith, 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 therein not misleading; provided,
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however, that the Company shall not be liable to U.S. Holders in any such case
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to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or omission made in such Registration
Statement, preliminary prospectus, summary prospectus, prospectus, or amendment
or supplement thereto, or any other document, in reliance upon and in conformity
with written information furnished to the Company by any U.S. Holder
specifically for use therein. The indemnity provided for herein shall remain in
full force and effect regardless of any investigation made by or on behalf U.S.
Holders or any underwriter or other selling agent and shall survive the transfer
of the Registrable Shares by U.S. Holders.
6.2 Requirements; Investigation No Bar. The Company may require, as a
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specific condition to including any Registrable Shares in any registration
statement filed pursuant to Section 2.1, that each participating U.S. Holder
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shall enter into and deliver to the Company an undertaking satisfactory to it to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 6) the Company, each director of the Company, each officer of
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the Company who shall sign such Registration Statement and each other Person, if
any, who controls the Company within the meaning of the Securities Act (except
the indemnifying holder, if such indemnifying holder so controls the Company),
and each Person participating in the offering with respect to any untrue
statement of material fact or omission of material fact from such Registration
Statement, any preliminary prospectus or final prospectus contained therein, any
summary prospectus issued in connection with any Registrable Securities being
registered or offered for sale, or any amendment or supplement thereto, in each
case if such statement or omission was made in reliance on and in conformity
with written information furnished to the Company by U.S. Holders specifically
for use in preparing any such Registration Statement, preliminary prospectus,
final prospectus, summary prospectus or amendment or supplement thereto. U.S.
Holders shall promptly provide such undertaking to indemnify in accordance with
this Section 6.2 upon request. In the event the undertaking to indemnify under
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this Section 6.2 is given by U.S. Holders, it shall remain in full force and
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effect regardless of any investigation made by or on behalf of the indemnified
party and shall survive any transfer of the Registrable Shares held by the
indemnifying party.
6.3 Contribution. If the indemnification provided for in Section 6.1 or
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Section 6.2 is unavailable or insufficient to hold harmless an indemnified party
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under this Section 6, then each indemnifying party, in lieu of indemnifying such
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indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the claims, losses, damages or
liabilities (or actions in respect thereof) referred to in Section 6.1 or
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Section 6.2: (a) in such proportion as is appropriate to reflect the relative
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benefits received by each indemnifying party from the offering of the securities
or (b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault of
each indemnifying party in connection with the statements or omissions that
resulted in such claims, losses, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. Relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by each indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and equitable
if contributions pursuant to this Section 6.3 were to be determined by pro rata
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allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this Section
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6.3. The amount paid by an indemnified party as a result of the claims, losses,
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damages or liabilities (or actions in respect thereof) referred to in the first
sentence of this Section 6.3 shall be deemed to include, subject to the
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limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending against any
action or claim which is the subject of this Section 6.3. No Person guilty of
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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. The Company may require, as a
specific condition to including any Registrable Shares in any registration
statement filed pursuant to Section 6 that participating U.S. Holders shall
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enter into and deliver to the Company an undertaking reasonably satisfactory to
it to contribute to the amount paid or payable by an indemnified party hereunder
as and to the extent set forth in this Section 6.3, and participating U.S.
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Holders shall promptly provide such undertaking upon request.
6.4 Claims Procedures. Each party entitled to indemnification or
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contribution under this Section 6 (the "Indemnified Party") shall give notice to
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the party required to provide indemnification or contribution (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity or contribution may be sought, provided that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further, that if the defendants in
any such action include both the Indemnified Party and the Indemnifying Party
and the Indemnified Party shall have reasonably concluded that there may be
legal defenses available to it and/or other Indemnified Parties which are
materially different from or additional to those available to the Indemnifying
Party, the Indemnified Party or Parties shall have the right to select separate
counsel to assert such legal defenses (in which case the Indemnifying Party
shall not have the right to direct the defense of such action on behalf of the
Indemnified Party or parties). Upon the permitted assumption by the Indemnifying
Party of the defense of such action, and approval by the Indemnified Party of
counsel, the Indemnifying Party shall not be liable to such Indemnified Party
under this Section 6.4 for any legal or other expenses subsequently incurred by
-----------
such Indemnified Party in connection with the defense thereof (other than
reasonable costs of investigation) unless (a) the Indemnified Party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence, (b) the Indemnifying
Party shall not have employed counsel satisfactory to the indemnified party to
represent the Indemnified Party within a reasonable time, or (c) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense of the Indemnifying Party. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party (whose consent shall not be unreasonably
withheld),consent to entry of any judgment or enter into any settlement which
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
to such claim or litigation.
Section 7. Information to be Furnished by U.S. Holders.
-------------------------------------------
If a U.S. Holder has Registrable Shares included in any registration, such
U.S. Holder shall furnish to the Company such information regarding such U.S.
Holder, the Registrable Shares held by U.S. Holders and the distribution
proposed by such U.S. Holder as the Company may reasonably request in writing
and as shall be required in connection with any registration referred to in this
Agreement.
Section 8. Rule 144 Reporting.
------------------
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Shares to the public without registration, so long as the Company is
a reporting company under the Exchange Act, the Company agrees to furnish to
U.S. Holders, upon request, a written statement executed by the Company as to
the steps it has taken to comply with the current public information
requirements of Rule 144.
Section 9. Co-Sale Rights with Finland Holders.
-----------------------------------
9.1 Co-Sale Securities Defined. For purposes of Section 9, unless the
--------------------------
context indicates otherwise, "Co-Sale Securities" shall mean (i) as to U.S.
Holders, the Initial Shares, and (ii) as to the Finland Holders, all Ordinary
Shares of the Company held immediately after the Effective Time by the Finland
Holders.
9.2 Co-Sale Procedures. Should any Finland Holder receive a bona fide
------------------
offer from any Person to purchase any of the Co-Sale Securities owned by Finland
Holders, or should any Finland Holder make an offer to any Person to sell
Co-Sale Securities, whether in a private transaction or pursuant to an
underwritten transaction (other than a registered underwritten transaction in
the United States to which Section 2 shall instead apply) (for the avoidance of
---------
doubt, it being expressly understood that any sales permitted hereunder pursuant
to Section 9.5 by Finland Holders pursuant to Rule 144(e) in the United States
-----------
or on the Helsinki Stock Exchange shall not be subject to the provisions and
limitations of this Section 9), then the applicable Finland Holder shall send to
---------
U.S. Holders written notice thereof (the "Co-Sale Notice") setting forth the
number of Finland Holder's Co-Sale Securities to be sold, the purchase price,
the proposed closing date and any other material terms. Within ten (10) days
after delivery of the Co-Sale Notice, U.S. Holders, as a group, may elect to
sell up to their pro rata share of the total number of securities to be
purchased by the transferee described in the Co-Sale Notice by giving written
notice thereof to the Company and tendering to the Company all documentation
necessary to effect the sale of the Co-Sale Securities to be sold, with written
instructions to transfer the Co-Sale Securities to the transferee described in
the Co-Sale Notice upon receipt of payment for such Co-Sale Securities at the
price or prices set forth in the Co-Sale Notice from such transferee for the
benefit of such U.S. Holder; provided, however, that in no event shall any
-------- -------
individual U.S. Holder be permitted to sell any shares pursuant to this Section
-------
9.2 which are in excess of the maximum number of Registrable Shares then owned
---
by such U.S. Holder, and further provided that, if any U.S. Holder elects to not
------- -------- ----
sell securities in the transaction giving rise to Co-Sale Rights, such U.S.
Holder's pro rata share shall be reallocated pro rata among the participating
U.S. Holders; provided, however, that in the no event shall any individual U.S.
-------- -------
Holder be permitted to sell any shares pursuant to this Section 9.2 which are in
-----------
excess of the maximum number of Registrable Shares then owned by such U.S.
Holder. Any election under this Section 9.2 shall be irrevocable. Failure to
-----------
respond within such ten (10) day period shall be deemed
notice of U.S. Holder's rejection of the offer and decision not to participate
in such transaction. Within three (3) Business Days after the expiration of the
initial notice period, the Company will give notice of the availability of any
additional shares and any U.S. Holder desiring to sell additional shares shall
inform the Company of the same within two (2) Business Days of such notice. The
applicable Finland Holder shall thereupon notify the transferee of the co-sale
arrangements hereunder, and instruct the transferee to deliver payment for the
shares to be purchased from the U.S. Holders to the Company, who shall transmit
such payment to the U.S. Holders. For the purpose of the co-sale right set forth
in this Section 9.2, the pro rata share of the U.S. Holders shall be the ratio
-----------
that (i) the number of shares of Co-Sale Securities then held by the U.S.
Holders bears to (ii) the sum of the total number of shares of Co-Sale
Securities held by the Finland Holders. Each U.S. Holder shall be required to
give, in order to effect a sale pursuant to this Section 9.2, such
-----------
representations or warranties which are substantially similar in effect to those
to be given by the Finland Holders, including, without limitation, pertaining to
authority to sell such U. S. Holder's Co-Sales Securities to be sold and title
to such Co-Sale Securities.
9.3 Transfer By Finland Holders Following Co-Sale Notice. In the event
----------------------------------------------------
that the U.S. Holders, in the aggregate, elect not to sell or fail to sell to
the proposed transferee the full number of Co-Sale Securities subject to the
Co-Sale Notice, the Finland Holders may, within ninety (90) days after the
expiration of the fifteen (15) day notice period provided for in Section 9.2(b),
-------------
transfer such Co-Sale Securities of the Finland Holders which are equal to such
shortfall, at a price and on terms no more favorable to the Finland Holders than
specified in the Co-Sale Notice. After the expiration of such ninety (90) day
period, the Finland Holders shall not thereafter transfer any of Finland
Holders' Co-Sale Securities without first complying with the provisions of
Section 9.2.
-----------
9.4 Invalid Transfers. No transfer in violation of Section 9.2 shall be
----------------- -----------
valid.
9.5 Certain Exceptions. The provisions of Section 9.2 shall not apply to
------------------ -----------
(i) any sale or transfer by Finland Holders to immediate family members or
trusts for the benefit of the Finland Holders or their immediate family members
or their Affiliates, (ii) any sale or transfer by Finland Holders to a U.S.
Holder or to any Affiliate of a U.S. Holder, (iii) any purchase of the
securities of the Company by the Company tendered by a Finland Holder to the
Company in payment of the exercise price of warrants, stock options or similar
derivative securities granted to Finland Holders by the Board of Directors of
the Company or any committee thereof or (iv) any sales of up to an aggregate of
100,000 of Ordinary Shares by the Finland Holders on the Helsinki Stock Exchange
during any 90 day period, provided that, in the case of Co-Sale Securities
-------- ----
transferred pursuant to Section 9.5, all such transferees shall agree in writing
-----------
to be subject to this Agreement and to be bound by all of the restrictions set
forth in this Agreement with respect to the Co-Sale Securities so transferred to
them as fully as if such transferee were a Finland Holder.
9.6 Termination of Co-Sale Rights on Transfer. If a Finland Holder shall
-----------------------------------------
transfer Co-Sale Securities in accordance with the provisions of this Section 9
---------
(other than Section 9.5(i)), such Securities shall no longer be subject to the
--------------
restrictions set forth in this Section 9. The provisions of this Section 9 shall
--------- ---------
expire at the earlier of such time as (i) the U.S. Holders have had the
opportunity to sell all of their Restricted Shares pursuant to any Co-Sale under
this Section, or (ii) the date this Agreement otherwise terminates.
Section 10. Participation in Company Offerings Outside the United States.
------------------------------------------------------------
10.1 Notice of Company Offerings Outside of United States. If at any time
----------------------------------------------------
or from time to time during the Registration Rights Period the Company shall
determine to sell outside the United States any of its Ordinary Shares for its
own account for cash (excluding, for the avoidance of doubt, any transaction
which, if effected in the United States would fall within the transactions
described in Section
-------
2.1(a) - (d) of this Agreement), the Company will give written notice (the
------------
"Company Notice"), at its expense, to U.S. Holders of its intention to do so at
least fifteen (15) days prior to the date on which such offering is to commence.
If any U.S. Holder desires to dispose of all or part of his Registrable Shares,
he may request that the number of Ordinary Shares to be sold by the Company is
decreased by thirty percent (30%) in the aggregate and that such offering
instead include a like number of Registrable Securities; provided, however, that
-------- -------
in no event shall any individual U.S. Holder be permitted to sell any shares
pursuant to this Section 10.1 which are in excess of the maximum number of
------------
Registrable Shares then owned by such U.S. Holder) in connection with Company's
offering by delivering to the Company, within ten (10) days after receipt of the
Company Notice, written notice of such request (the "U.S. Holders Notice")
stating the number of shares of Registrable Shares to be disposed of by such
U.S. Holders. The Company shall use its reasonable best efforts to cause all of
the Registrable Shares specified in the U.S. Holders Notice to be included in
such offering so as to permit the sale or other disposition (in accordance with
the intended methods thereof pursuant to such offering) by U.S. Holders of the
Registrable Shares so included, subject, however, to the limitations set forth
in Section 10.2; and, provided, however, that the Company shall not be required
------------ -------- -------
to grant any concession or additional rights or other consideration to any other
Person to secure the right of U.S. Holders to participate in such offering. The
provision of this Section 10 shall expire at the earlier of such time as (i) the
----------
U.S. Holders have had the opportunity to sell all of their Registrable Shares
pursuant to any offering under this Section, or (ii) the date this Agreement
otherwise terminates.
10.2 Certain Limitations on and Requirements for Participation in Company
--------------------------------------------------------------------
Offerings Outside the United States. (a) If the offering of which the Company
-----------------------------------
gives notice pursuant to Section 10.1 above is for the purpose of permitting the
------------
disposition of securities by the Company pursuant to a firm commitment
underwritten offering, the Company shall so advise U.S. Holders as a part of the
Company Notice given pursuant to Section 10.1. In such event, the right of U.S.
------------
Holders to participate in such offering pursuant to Section 10.1 shall be
------------
conditioned upon the applicable U.S. Holders's participation in such
underwriting (if any), and the inclusion of Registrable Shares in the offering
and/or underwriting shall be limited to the extent provided herein. U.S. Holders
shall sell the Registrable Shares included in such offering to or through the
Underwriter(s) (if any) of the securities being registered for the account of
the Company (or otherwise selected by the Company, in its sole discretion, to
manage such underwriting) upon terms generally comparable to the terms
applicable to the Company (except that the U.S. Holders, on the one hand, and
the Company, on the other hand, each shall bear their own costs.
(b) If requested in writing to do so in good faith by the managing
Underwriter of an underwritten offering, the Company shall have the right to
limit the aggregate size of the offering or decrease the number of shares of the
U.S. Holders to be included therein pro rata to the extent necessary to reduce
the number of securities to be included in the offering to the level recommended
by the managing Underwriter, and only securities which are to be included in the
underwriting may be included in the offering. U.S. Holders shall (together with
the Company and other holders of the Registrable Securities distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing Underwriter selected for such underwriting by
the Company.
(c) It will be the responsibility of the U.S. Holders to convert
their Registrable Shares from American Depository Shares into Ordinary Shares if
necessary to participate in any Co-Sale offering.
Section 11. Assistance with Institutional Sales. (a) The Company shall, from
-----------------------------------
time to time, upon the request of one or more U.S. Holders use its reasonable
best efforts to introduce such U.S. Holder or U.S. Holders to (i) underwriters
which may have an interest in assisting with the sale of some or all of the
Registrable Shares of such U.S. Holder at the then prevailing market price for
the Shares, and (ii)
institutional investors whom the Company believes may have an interest in
acquiring the Registrable Shares held by U.S. Holders.
(b) The Company will provide to U.S. Holders and such potential
underwriters and purchasers all such documents and opportunities to meet with
officials of the Company and to discuss with its principal officers the
Company's business pursuant to normal investor relations practices, such as
discussions regarding assets, liabilities, financial condition, results of
operations and business prospects; it being understood that all such documents
and disclosures may be subject to appropriate confidentiality agreements.
Notwithstanding anything in this Section 11 to the contrary, the Company shall
----------
not be required to register the Registrable Shares for resale (except as set
forth in Section 2) under the Securities Act or the securities laws of Finland
---------
or any other jurisdiction in connection with any proposed sale of such
Registrable Shares by the U.S. Holders.
(c) All actions by the Company under this Section 11 shall be at
----------
the sole cost and expense of the applicable U.S. Holders; provided that the
-------- ----
Company shall not charge U.S. Holders with any internal expenses of the Company
associated with responding to any reasonable due diligence requests of any
potential purchaser and the Company shall bear all costs associated with the
attendance of any Company officers at no more than three (3) "road shows" in any
twelve month period. The Company shall not be obligated to engage in any
activity which would require it to register as a broker-dealer under the
securities laws of the United States nor shall the Company be obligated to
engage in any activity which could reasonably be expected to result in any sale
by such U.S. Holder being deemed a distribution by the Company in violation of
the securities laws of any applicable jurisdiction.
Section 12. Termination.
-----------
This Agreement shall terminate upon the sixth anniversary of the Effective
Time (as defined in the Merger Agreement).
Section 13. Amendment.
---------
Any provision of this Agreement may be amended or the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the mutual written consent of the
Company and the U.S. Holders. Any amendment or waiver effected in accordance
with this Section 13 shall be binding upon each party to this Agreement and each
----------
transferee of securities subject to this Agreement.
Section 14. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF
THE STATE OF DELAWARE WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS.
Section 15. Entire Agreement.
----------------
This Agreement constitutes the full and entire understanding and agreement
among the parties regarding the matters set forth herein. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon the successors, assigns, heirs, executors and administrators
of the parties hereto.
Section 16. Notices, etc.
------------
All notices, demands or other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered, by hand or by messenger,
addressed:
If to U.S. Holders or the Finland Holders, to the address set forth below
the individual Holder's signature to this Agreement, or to such other address as
an individual Holder shall have furnished to the Company.
If to the Company, to:
Eimo Oyj
Xxxxxxxx 0
X.X. Xxx 000
XXX-00000 Xxxxx
XXXXXXX
Attn: Xxxxx Xxxxxxxx
Facsimile: 011-358-3-850-5405
or to such other address as the Company shall have furnished to U.S. Holders,
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxx 0000, Xxxxxxxxx XX
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if in
writing and delivered personally, or, if sent by mail, postage pre-paid, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed, pre-paid and mailed as aforesaid. In order for a notice to be
effective, a second copy must be faxed by the sender to the party to whom it is
addressed. Any party may change by such notice the address to which notices to
it are to be addressed.
Section 17. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
Section 18. Severability.
------------
In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision, which
shall be replaced with an enforceable provision closest in intent and economic
effect as the severed provision; provided that no such severability shall be
--------
effective if it materially changes the economic benefit of this Agreement to any
party.
Section 19. Captions and Section Titles.
---------------------------
Section titles or captions contained in this Agreement are inserted as
a matter of convenience and for reference purposes only, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provision hereof.
Section 20. Singular and Plural, Etc.
-------------------------
Whenever the singular number is used herein and where required by the
context, the same shall include the plural, and the neuter gender shall include
the masculine and feminine genders.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"COMPANY"
Eimo Oyj
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------
Title: Executive Vice Chairman
--------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
"U.S. HOLDERS"
/s/ A. Xxxxxxxxx Xxxxxxx
-----------------------------------------
A. Xxxxxxxxx Xxxxxxx
_________________________________________
_________________________________________
_________________________________________
Facsimile:_______________________________
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
_________________________________________
_________________________________________
_________________________________________
Facsimile:_______________________________
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
_________________________________________
_________________________________________
_________________________________________
Facsimile:_______________________________
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
"FINLAND HOLDERS":
/s/ Xxxx Xxxxxxxx
---------------------------------------
Xxxx Xxxxxxxx
_______________________________________
_______________________________________
_______________________________________
Facsimile:_____________________________
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
_______________________________________
_______________________________________
_______________________________________
Facsimile:_____________________________
/s/ Topi Xxxxxxxx
---------------------------------------
Topi Xxxxxxxx
_______________________________________
_______________________________________
_______________________________________
Facsimile:_____________________________
/s/ Xxxxxxxx Jukko
---------------------------------------
Xxxxxxxx Jukko
_______________________________________
_______________________________________
_______________________________________
Facsimile:_____________________________
