REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
this 6th of June, 2011 (the “Effective Date”), by and among Xxxxxxxxxxx International Ltd.,
a Swiss joint-stock corporation (the “Company”), and the parties set forth on the signature
page hereto (each, a “Shareholder” and collectively, the “Shareholders”).
RECITALS
WHEREAS, the Shareholders are acquiring Common Shares (defined below) pursuant to the Purchase
and Sale Agreement dated the date hereof (the “Purchase Agreement”) between Xxxxxxxxxxx
U.S., L.P., an indirect wholly-owned subsidiary of the Company, and the Shareholders.
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to enter into this
Agreement with the Shareholders to set forth the registration rights to be granted by the Company
to the Shareholders, so as to induce the Shareholders to enter into the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties,
covenants, and conditions set forth herein and in the Purchase Agreement, the parties mutually
agree as follows:
AGREEMENT
1. Certain Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
“Agreement” has the meaning set forth in the preamble.
“Blackout Period” means a period in each case commencing immediately after the Company
notifies the Holders that they are required, pursuant to Section 5, to suspend offers and
sales of Registrable Securities because the Company, in the good faith judgment of its Board of
Directors, determines (because of the existence of, or in anticipation of, any acquisition,
financing activity, or other transaction involving the Company, or the unavailability for reasons
beyond the Company’s control of any required financial statements, disclosure of information which
is in its best interest not to publicly disclose, or any other event or condition of similar
significance to the Company) that the registration and distribution of (and/or the registration of
the offer and sale of) the Registrable Securities would be detrimental to the Company and its
shareholders and ending on the earlier of (1) the date upon which the material non-public
information to which the Blackout Period relates is disclosed to the public or ceases to be
material and (2) such time as the Company notifies the Holders that the Company will no longer
delay filing of the Prospectus Supplement, recommences taking steps to make the Shelf Registration
Statement or any Subsequent Shelf Registration Statement effective or allows sales pursuant to the
Shelf Registration Statement or any Subsequent Shelf Registration Statement to resume; provided,
however, that the Company shall limit its use of Blackout Periods in the aggregate to no more than
sixty (60) Trading Days within any twelve (12) month period.
“Commission” means the Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
“Common Shares” means the registered shares, par value 1.16 Swiss francs per share, of
the Company and any and all shares of capital stock or other equity securities of: (i) the Company
which are added to or exchanged or substituted for the Common Shares by reason of the declaration
of any stock dividend or stock split, the issuance of any distribution or the reclassification,
readjustment, recapitalization or other such modification of the capital structure of the Company;
and (ii) any other entity, now or hereafter organized under the laws of any state or other
governmental authority, with which the Company is merged, which results from any consolidation or
reorganization to which the Company is a party, or to which is sold all or substantially all of the
shares or assets of the Company.
“Company” has the meaning set forth in the preamble.
“Effective Date” has the meaning set forth in the preamble.
“Effectiveness Period” shall have the meaning set forth in Section 4(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar
federal statute promulgated in replacement thereof, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
“Family Member” means (a) with respect to any individual, such individual’s spouse,
any descendants (whether natural or adopted), any trust all of the beneficial interests of which
are owned by any of such individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or limited liability company all of
the equity interests of which are owned by those above-described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the beneficial interests of such
trust.
“Holder” means each Shareholder or any of such Shareholder’s successors and Permitted
Assignees who acquire rights in accordance with this Agreement with respect to the Registrable
Securities directly or indirectly from a Shareholder or another Permitted Assignee.
“Majority Holders” means at any time Holders of a majority of the Registrable
Securities outstanding at such time.
“Permitted Assignee” means (a) with respect to a partnership, its partners or former
partners in accordance with their partnership interests, (b) with respect to a corporation, its
shareholders or former shareholders (who were shareholders on the Effective Date) in accordance
with their interests in the corporation, (c) with respect to a limited liability company, its
members or former members in accordance with their interests in the limited liability company, (d)
with respect to any other entity, its equityholders or former equityholders in accordance with
their interests in the entity, (e) with respect to an individual person, any Family Member of such
person, (f) an entity that is controlled by, controls, or is under common control with a
transferor, or (g) a party to this Agreement.
2
“Prospectus” means the prospectus used in connection with the Shelf Registration
Statement or any Subsequent Shelf Registration Statement (as defined below), including as
supplemented by the Prospectus Supplement, all exhibits thereto and all material incorporated by
reference therein.
“Prospectus Supplement” means the supplement to the Prospectus required to be filed by
the Company pursuant to Section 3.
“Prospectus Supplement Filing Date” means five (5) Trading Days after the Effective
Date.
“Registrable Securities” means initially that number of Common Shares set forth
opposite each Shareholder’s name on Exhibit A; provided, however, that a Registrable
Security shall cease to be a Registrable Security upon the earlier of the time (a) the Registrable
Security has been sold or disposed of in accordance with the Registration Documents, or (b) such
Registrable Security has been, or can be in a single transaction and without restriction, disposed
of pursuant to any section of Rule 144 (or any similar provision then in force) under the
Securities Act.
“Registration Documents” shall have the meaning set forth in Section 4.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal
statute promulgated in replacement thereof, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
“Shareholder” has the meaning set forth in the preamble.
“Shelf Registration Statement” means that currently existing and effective
registration statement filed by the Company with the Commission on Form S-3 (Commission file number
333-174485) pursuant to Rule 415(a)(1)(i) under the Securities Act, and all amendments and
supplements to such registration statement, including post-effective amendments, all exhibits
thereto and all material incorporated by reference therein.
“Subsequent
Shelf Registration Statement” shall have the meaning set forth in
Section 4(a).
“Trading Day” means a day on which the New York Stock Exchange is open for general
trading of securities.
2. Term. This Agreement shall continue in full force and effect until such time as
there are no Registrable Securities hereunder, unless terminated sooner by agreement of the Company
and an applicable Holder.
3. Prospectus Supplement. As promptly as reasonably practicable after the date
hereof, but in any event not later than the Prospectus Supplement Filing Date, the Company shall
file with the Commission the Prospectus Supplement, pursuant to Rule 424(b) under the Securities
Act, providing for the resale by the Holders of all of the Registrable Securities; provided,
however, that the Company shall not be obligated to effect any such filing pursuant to
3
this Section 3 during any Blackout Period, in which case the Prospectus Supplement
Filing Date shall be extended to the third (3rd) Trading Day immediately following the last day of
such Blackout Period.
4. Registration Procedures. In the case of the filing to be effected by the Company
pursuant to Section 3 hereof, the Company will keep each Holder reasonably advised in
writing (which may include e-mail) as to the initiation and completion thereof. At its expense
with respect to the Shelf Registration Statement, any Subsequent Shelf Registration Statement, the
Prospectus and the Prospectus Supplement filed pursuant to Section 3 (collectively, the
“Registration Documents”), the Company will:
(a) (i) use its reasonable best efforts to cause the Shelf Registration Statement
pertaining to the Registrable Securities to remain effective under the Securities Act until
there are no Registrable Securities outstanding (the “Effectiveness Period”) or,
with respect to the Shelf Registration Statement, until the date a Subsequent Shelf
Registration Statement covering the Registrable Securities has been declared effective under
the Securities Act; (ii) if the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all Registrable Securities shall have ceased to be
Registrable Securities), notify each Holder of Registrable Securities of such fact and use
its reasonable best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event within thirty (30) Trading Days of such cessation of
effectiveness, amend the applicable shelf registration statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file
with the Commission an additional automatic shelf registration statement pursuant to Rule
415(a)(1)(i) under the Securities Act covering the registration, and sale on a continuous or
delayed basis, of all of the Registrable Securities (a “Subsequent Shelf Registration
Statement”); and (iii) if a Subsequent Shelf Registration Statement is filed, use its
reasonable best efforts both to cause the Subsequent Shelf Registration Statement to become
effective as promptly as is practicable after such filing, notifying each Holder of
Registrable Securities of the filing and effectiveness of such Subsequent Shelf Registration
Statement, and to keep such Subsequent Shelf Registration Statement continuously effective
under the Securities Act until the end of the Effectiveness Period; provided that the
Company shall not be deemed to have used its reasonable best efforts to keep the Shelf
Registration Statement or any Subsequent Shelf Registration Statement effective during the
Effectiveness Period if the Company, except as required by applicable law, and subject to
Section 5, fails to perform any commercially reasonable action that would result in
Holders of Registrable Securities covered by the Prospectus Supplement being able to offer
and sell any of such Registrable Securities during that period;
(b) if any of the Registration Documents become subject to review by the Commission,
promptly respond to all comments and use reasonable best efforts to diligently pursue
resolution of any comments to the satisfaction of the Commission;
(c) (i) use its reasonable best efforts to prepare and file with the Commission such
amendments, post-effective amendments and supplements to the Registration
4
Documents, as applicable and as may be reasonably necessary to keep the Shelf
Registration Statement or Subsequent Shelf Registration Statement, as applicable,
continuously effective during the Effectiveness Period, and notify each Holder of
Registrable Securities of when any such amendment or supplement has been determined to be
necessary by the Company, has been filed and becomes effective; (ii) use its reasonable best
efforts to cause any such amendment or supplement to become effective as soon as
practicable; and (iii) comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by the Prospectus Supplement during such
period in accordance with the intended method(s) of disposition by the sellers thereof set
forth in the the Prospectus as further amended;
(d) furnish, without charge, to each Holder of Registrable Securities covered by the
Prospectus Supplement (i) a reasonable number of copies of the Shelf Registration Statement
or any Subsequent Shelf Registration Statement (including any exhibits thereto other than
exhibits incorporated by reference), each amendment, post-effective amendment and supplement
thereto as such Holder may request, (ii) such number of copies of the Prospectus (including
each preliminary prospectus and any other prospectus or any prospectus supplement filed
under Rule 424(b) under the Securities Act) as such Holder may reasonably request, in
conformity with the requirements of the Securities Act, and (iii) such other documents as
such Holder may reasonably request that are necessary to facilitate the disposition of the
Registrable Securities owned by such Holder, but only during the Effectiveness Period;
(e) use its reasonable best efforts to register or qualify the Registrable Securities
under such other applicable securities or blue sky laws of such jurisdictions as any Holder
of Registrable Securities covered by the Prospectus Supplement reasonably requests as may be
necessary for the marketability of the Registrable Securities and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable Securities owned by such
Holder; provided that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify but for
this paragraph (e), (ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such jurisdiction;
(f) as promptly as practicable after becoming aware of such event, notify each Holder
of Registrable Securities at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event which comes to the
Company’s attention if as a result of such event any of the Registration Documents contains
an untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and the Company
shall use its reasonable best efforts to promptly prepare and furnish to each Holder and, if
applicable, file with the Commission under the Securities Act, an amendment, post-effective
amendment or supplement, as applicable, to such documents, or prepare and file appropriate
reports under the Exchange Act, so that, as thereafter delivered to the purchasers of such
Registrable Securities, the Prospectus, as supplemented by the Prospectus Supplement, shall
not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to
5
make the statements therein not misleading, except during the pendency of a Blackout
Period, in which case no amendment, post-effective amendment or supplement need be furnished
or Exchange Act filing made until the termination of the Blackout Period;
(g) comply, and continue to comply during the period that the Registration Documents
are effective under the Securities Act, in all material respects with the Securities Act and
the Exchange Act and with all applicable rules and regulations of the Commission with
respect to the disposition of all Registrable Securities covered by the Prospectus
Supplement, and generally make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12) months
beginning with the first full calendar month after the Prospectus Supplement Filing Date,
which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(h) as promptly as practicable after becoming aware of such event, notify each Holder
of Registrable Securities being offered or sold pursuant to the Prospectus Supplement of the
issuance by the Commission of any stop order or other suspension of effectiveness, or any
proceedings that propose any stop order or other suspension of effectiveness, of any of the
Registration Documents at the earliest possible time;
(i) use its reasonable best efforts to cause all the Registrable Securities covered by
the Prospectus Supplement to be listed on the New York Stock Exchange or such other
principal securities market on which securities of the same class or series issued by the
Company are then listed or traded;
(j) provide a transfer agent and registrar, which may be a single entity, for the
Registrable Securities at all times;
(k) cooperate with the Holders of Registrable Securities being offered pursuant to the
Prospectus Supplement to issue and deliver to purchasers of any such Registrable Securities,
Common Shares not bearing any restrictive legends in such amounts as the Holders may
reasonably request and registered in such names as the Holders may request; and
(l) during the Effectiveness Period, refrain from bidding for or purchasing any Common
Shares or any right to purchase Common Shares or attempting to induce any Person to purchase
any such security or right if such bid, purchase or attempt would in any way limit the right
of the Holders to sell Registrable Securities by reason of the limitations set forth in
Regulation M under the Exchange Act.
5. Suspension of Offers and Sales. Each Holder of Registrable Securities agrees that,
upon receipt of any notice from the Company of the happening of any event of the kind described in
Section 4(f) or 4(h), or of the commencement of a Blackout Period, such Holder
shall discontinue and suspend any disposition of Registrable Securities pursuant to the
Registration Documents covering such Registrable Securities until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 4(f) hereof,
notice that any event described in Section 4(h) has been lifted, or notice of the end of
the Blackout
6
Period, as applicable, and, if so directed by the Company, such Holder shall deliver to the
Company (at the Company’s expense) all copies (including, without limitation, any and all drafts),
other than permanent file copies, then in such Holder’s possession, of the Registration Documents
covering such Registrable Securities current at the time of receipt of such notice.
6. Registration Expenses. Except as set forth in Section 7, the Company shall
pay all expenses in connection with its performance of and compliance with this Agreement, and any
registration of the Registrable Securities, including, without limitation, all registration, filing
and stock exchange fees, all printing and related expenses, all fees and expenses of complying with
state securities or blue sky laws, and the fees and disbursements of counsel for the Company and of
its independent accountants. Except as provided above in this Section 6 and Section
9, the Company shall not be responsible for the expenses of any attorney or other advisor
employed by a Holder of Registrable Securities.
7. Assignment of Rights. No Holder may assign its rights under this Agreement to any
party without the prior written consent of the Company; provided, however, that a Holder may assign
its rights under this Agreement without such prior written consent to a Permitted Assignee as long
as (a) such transfer or assignment is effected in accordance with applicable securities laws; (b)
such transferee or assignee agrees in writing to become subject to the terms of this Agreement; and
(c) the Company is given written notice by such Holder of such transfer or assignment, stating the
name and address of the transferee or assignee and identifying the Registrable Securities with
respect to which such rights are being transferred or assigned. The Company shall use its
reasonable best efforts, upon request of the transferring Holder and its Permitted Assignee (and
after receiving such transfer notice, joinder and the information required by this Section
7 and Section 8 as to the Permitted Transferee), file an amendment or supplement to the
Prospectus Supplement to provide for the resale of Registrable Securities by such Permitted
Assignees and shall bear any and all expenses incurred by the Company in connection with the first
two amendments or supplements so requested by each such Holder and its Permitted Transferees;
provided that, notwithstanding anything else herein to the contrary, a Holder shall pay any and all
expenses incurred by the Company in connection with any subsequent amendments or supplements so
requested by each such Holder, including, without limitation, the reasonable fees and disbursements
of the Company’s counsel, accountants, and other representatives incurred in connection therein.
8. Information by Holder. The Holder or Holders of Registrable Securities included in
any Prospectus Supplement shall furnish to the Company such information regarding such Holder or
Holders and the distribution proposed by such Holder or Holders as the Company may reasonably
request. No Holder of Registrable Securities will be entitled to have such Registrable Securities
included in the Prospectus Supplement if such Holder does not furnish the information requested by
the Company. Each Holder agrees that the name and address of such Holder as it is to be listed in
the Prospectus Supplement, and the number of Registrable Securities of such Holder to be included
in the Prospectus Supplement, is accurately set forth on Exhibit A attached to this
Agreement.
7
9. Indemnification.
(a) In the event of the offer and sale of Registrable Securities held by Holders under the
Securities Act, the Company shall, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder, each Holder’s directors, officers, partners and
equityholders, each other person who participates as an underwriter in the offering or sale of the
Registrable Securities, and each other person, if any, who controls or is under common control with
each Holder or any such underwriter within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which any Holder or any such
director, officer, partner, equityholder or underwriter or controlling or controlled person may
become subject under the Securities Act, the Exchange Act or state securities laws and regulations,
insofar as such losses, claims, damages, or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Shelf Registration Statement, any
Subsequent Shelf Registration Statement, the Prospectus (including any preliminary prospectus,
final prospectus or summary prospectus), or any amendment, post-effective amendment or supplement
thereto, including the Prospectus Supplement, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein (in the
case of any prospectus, in light of the circumstances in which they were made) not misleading, or
any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any
state securities laws and regulations, and the Company shall reimburse each Holder, and each such
director, officer, partner, equityholder, underwriter and controlling or controlled person, for any
legal or any other expenses reasonably incurred by them in connection with investigating, defending
or settling any such loss, claim, damage, liability, action or proceeding; provided that the
Company shall not be liable in any such case (i) to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of or is based upon
(x) an untrue statement or alleged untrue statement in or omission or alleged omission from the
Shelf Registration Statement, any Subsequent Shelf Registration Statement, the Prospectus
(including any such preliminary prospectus, final prospectus or summary prospectus), or any
amendment, post-effective amendment or supplement thereto, including the Prospectus Supplement, was
made in reliance upon and in conformity with written information furnished to the Company through
an instrument duly executed by or on behalf of a Holder specifically stating that it is for use in
the preparation therefor or (y) such Holder’s failure to comply with the terms of the plan of
distribution mechanics described in the applicable prospectus, or (ii) if the person asserting any
such loss, claim, damage, liability, expense (or action or proceeding in respect thereof) who
purchased the Registrable Securities that are the subject thereof did not receive a copy of the
most current Prospectus at or prior to the written confirmation of the sale of such Registrable
Securities to such person because of the failure of a Holder or underwriter to so provide the most
current Prospectus and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact made in such Prospectus was corrected in the most current Prospectus
Supplement. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Holder, or any such director, officer, partner, equityholder,
underwriter or controlling or controlled person and shall survive the transfer of such shares by a
Holder.
8
(b) As a condition to including any Registrable Securities to be offered by a Holder in the
Prospectus Supplement filed pursuant to this Agreement, each Holder agrees to be bound by the terms
of this Section 9 and to indemnify and hold harmless, to the fullest extent permitted by
law, the Company, its directors, officers, employees and agents, and each other person, if any, who
controls or is under common control with the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint or several, to which the
Company or any such director, officer, employee, agent, or controlling or controlled person may
become subject under the Securities Act, the Exchange Act or state securities laws and regulations,
insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the Shelf Registration
Statement, any Subsequent Shelf Registration Statement, the Prospectus (including any preliminary
prospectus, final prospectus or summary prospectus), or any amendment, post-effective amendment or
supplement thereto, including the Prospectus Supplement, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein (in the case of any prospectus, in light of the circumstances in which they were made) not
misleading, if such untrue statement or alleged untrue statement in or omission or alleged omission
was made in reliance upon and in conformity with written information furnished to the Company
through an instrument duly executed by or on behalf of such Holder specifically stating that it is
for use in the preparation therefor, (ii) any violation or alleged violation of such Holder of the
Securities Act, the Exchange Act or any state securities laws and regulations, or (iii) such
Holder’s failure to comply with the terms of the plan of distribution mechanics described in the
applicable prospectus, and such Holder shall reimburse the Company, and each such director,
officer, employee, agent and controlling or controlled person, for any legal or other expenses
reasonably incurred by them in connection with investigating, defending, or settling any such loss,
claim, damage, liability, action, or proceeding; provided, however, that such indemnity found in
this Section 9(b) shall in no event exceed the gross proceeds from any offering received by
such Holder. Such indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer, employee, agent or controlling
or controlled person and shall survive the transfer by any Holder of such shares.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action
or proceeding involving a claim referred to in Section 9(a) or (b) hereof
(including any governmental action), such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the indemnifying party of the
commencement of such action or proceeding; provided that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its obligations under
Section 9(a) or (b) hereof, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in the reasonable judgment of counsel to such indemnified party a conflict of interest between such indemnified and indemnifying parties may exist or the indemnified party may have defenses not available to the indemnifying party in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses,
Section 9(a) or (b) hereof, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in the reasonable judgment of counsel to such indemnified party a conflict of interest between such indemnified and indemnifying parties may exist or the indemnified party may have defenses not available to the indemnifying party in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses,
9
other than reasonable costs of investigation, subsequently incurred by the latter in
connection with the defense thereof, unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises in respect of such
claim after the assumption of the defenses thereof or the indemnifying party fails to defend such
claim in a diligent manner. Neither an indemnified nor an indemnifying party shall be liable for
any settlement of any action or proceeding effected without its consent. No indemnifying party
shall, without the consent of the indemnified party, 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 of such claim or
litigation. Notwithstanding anything to the contrary set forth herein, and without limiting any of
the rights set forth above, in any event any party shall have the right to retain, at its own
expense, counsel with respect to the defense of a claim.
(d) In the event that an indemnifying party does not assume or is not permitted to assume the
defense of an action pursuant to
Section 9(c) or in the case of the expense reimbursement obligation set forth in Section 9(a) and (b), the indemnification required by Section 9(a) and (b) hereof shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expenses, losses, damages, or liabilities are incurred.
Section 9(c) or in the case of the expense reimbursement obligation set forth in Section 9(a) and (b), the indemnification required by Section 9(a) and (b) hereof shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expenses, losses, damages, or liabilities are incurred.
(e) If the indemnification provided for in this Section 9 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or expense (i) as is
appropriate to reflect the proportionate relative fault of the indemnifying party on the one hand
and the indemnified party on the other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or the indemnified party
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, as is appropriate to reflect not only the proportionate
relative fault of the indemnifying party and the indemnified party, but also the relative benefits
received by the indemnifying party on the one hand and the indemnified party on the other, as well
as any other relevant equitable considerations; provided, however, that each Holder shall not be
liable for any such loss, liability, claim, damage or expense in an amount greater than such Holder
received as gross proceeds from the sale of such Holder’s Registrable Securities. No indemnified
party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any indemnifying party who was not guilty of such
fraudulent misrepresentation.
(f) Indemnification similar to that specified in the preceding subsections of this Section
9 (with appropriate modifications) shall be given by the Company and each Holder of Registrable
Securities with respect to any required registration or other qualification of securities under any
federal or state law or regulation or governmental authority other than the Securities Act.
10
10. Rule 144. With a view to making available to the Holders the benefits of Rule 144
under the Securities Act 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, during the
Effectiveness Period, the Company will use its reasonable best efforts (a) to timely file all
reports required to be filed by the Company after the date hereof under the Securities Act and the
Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission
thereunder), (b) if the Company is not required to file reports pursuant to such sections, it will
prepare and furnish to the Holders and make publicly available in accordance with Rule 144(c) such
information as is required for the Holders to sell Common Shares under Rule 144, and (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,
the Securities Act and the Exchange Act, (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 if not otherwise
publicly available on XXXXX, 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, as may be necessary and all to the extent required from time to
time to enable the Holders to sell Common Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144, including causing its attorneys to
issue and deliver any appropriate legal opinion required to permit a Holder to sell Common Shares
under Rule 144 upon receipt of appropriate documentation relating to such sale.
11. Independent Nature of each Shareholder’s Obligations and Rights. The obligations
of each Shareholder under this Agreement are several and not joint with the obligations of any
other Shareholder, and each Shareholder shall not be responsible in any way for the performance of
the obligations of any other Shareholder under this Agreement. The decision of each Shareholder to
acquire Common Shares and enter into this Agreement has been made by each Shareholder independently
of any other Shareholder. Nothing contained herein, and no action taken by any Shareholder
pursuant hereto, shall be deemed to constitute the Shareholders as a partnership, an association, a
joint venture, or any other kind of entity, or create a presumption that the Shareholders are in
any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Shareholder acknowledges that no other Shareholder has acted
as agent for the Shareholder in connection with making its investment in Common Shares and that no
other Shareholder will be acting as agent of the Shareholder in connection with monitoring its
investment in the Common Shares or enforcing its rights under this Agreement. Each Shareholder
shall be entitled to independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any other Shareholder to be
joined as an additional party in any proceeding for such purpose.
12. Miscellaneous.
(a) Governing Law. This Agreement and the rights of the parties hereunder shall be
governed by, and construed in accordance with, the laws of the State of Texas and the United States
of America without regard to the conflicts of law provisions thereof that would cause the laws of
any other jurisdiction to apply. Any judicial proceeding brought against any of
11
the parties to this Agreement or any dispute arising out of this Agreement or any matter
related hereto shall be brought in the courts of the State of Texas, City of Houston, or in the
United States District Court for the Southern District of Texas and, by its execution and delivery
of this Agreement, each party to this Agreement accepts the jurisdiction of such courts. The
foregoing consent to jurisdiction shall not be deemed to confer rights on any person other than the
parties to this Agreement.
(b) Successors and Assigns. Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees,
executors and administrators of the parties hereto. In the event the Company merges with, or is
otherwise acquired by, a direct or indirect subsidiary of a publicly traded company, the Company
shall condition the merger or acquisition on the assumption by such parent or successor company of
the Company’s obligations under this Agreement.
(c) Entire Agreement. This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subjects hereof.
(d) Notices, etc. All notices or other communications under this Agreement shall be in
writing and sufficient if delivered by (i) personal delivery, (ii) facsimile transmission, (iii)
registered or certified mail, postage pre-paid, return receipt requested, (iv) electronic mail, or
(v) courier or overnight carrier, to the persons at the addresses set forth below (or at such other
address as may be provided hereunder), and shall be deemed to have been delivered as of the date so
delivered:
If to the Company:
|
Xxxxxxxxxxx International Ltd. 000 Xxxx Xxx Xxxx., Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: General Counsel Facsimile: (000) 000-0000 Confirm: (000) 000-0000 Email: Xxxxxx.Xxxxx@xxxxxxxxxxx.xxx |
|
with a copy (which shall not itself
constitute notice) to:
|
Xxxxxxx Xxxxx LLP 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: W. Xxxxx Xxxxxxx Facsimile: (000) 000-0000 Email: xxxxxxxx@xxxxxxxxxxxx.xxx |
12
If to a Shareholder:
|
To such Shareholder at the address set forth on Exhibit A | |
with a copy (which shall not itself constitute notice) to:
|
Xxxxxxx, Xxxxxxxxx & Xxxxxx, LLP 0000 Xxxxxxxx Xxxxx, Xxxxx 00 Xxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000 Email: xxxxxxxx@xxxxxx.xxx |
or at such other address as any party shall have furnished to the other parties in writing.
(e) Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any Holder of any Registrable Securities, upon any breach or default of the Company
under this Agreement, shall impair any such right, power or remedy of such Holder nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any Holder of any
breach or default under this Agreement, or any waiver on the part of any Holder of any provisions
or conditions of this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this Agreement, or by law or
otherwise afforded to any Holder, shall be cumulative and not alternative.
(f) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument.
(g) Severability. If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions shall not
in any way be affected or impaired thereby and shall remain in full force and effect.
(h) Amendments. The provisions of this Agreement may be amended at any time and from
time to time, and particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and by the Majority Holders; provided,
however, that no such amendment may impair the rights of a Holder without that Holder’s consent nor
may such Holder’s obligations hereunder be expanded without such Holder’s consent.
13
IN WITNESS WHEREOF, this Registration Rights Agreement is hereby executed as of the date first
above written.
| COMPANY: XXXXXXXXXXX INTERNATIONAL LTD., a Swiss joint-stock corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President, Co-General Counsel and Corporate Secretary |
|||
Signature Page to Registration Rights Agreement
| SHAREHOLDERS: |
||||
| /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx | ||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx | ||||
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx | ||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx | ||||
Signature Page to Registration Rights Agreement
EXHIBIT A
SHAREHOLDER INFORMATION
| Number of Registrable | ||||||
| Name | Address | Securities | ||||
Xxxxxx X. Xxxxxxx
|
0000 X. Xxxxxxxxxx Xx. Xxxxxxxxx, XX 00000 | 481,512 | ||||
Xxxxxx X. Xxxxxx
|
0000 Xxxxx Xxxxxx Xx. Xxxxxxxxx, XX 00000 | 240,756 | ||||
Xxxxx X. Xxxxx
|
0000 Xxxxxxxxxxx Xx. Xxxxxxxxx, XX 00000 | 240,756 | ||||
Xxxx X. Xxxxxxx
|
00000 X. 000 X. Xxxx Xxxxxxxxx, XX 00000 | 251,805 | ||||
Xxxxxx X. Xxxxxxxx
|
000 Xxxx Xxxxx Xxxxx, XX 00000 | 251,805 | ||||
