Exhibit 5
REGISTRATION RIGHTS AGREEMENT, dated as of August 10, 2004
(this "Agreement"), by and between Xxxxxxx International Limited, a company
incorporated under the laws of The Bahamas (the "Company"), and Istithmar PJSC,
a company organized under the laws of Dubai ("Istithmar").
R E C I T A L S
A. On the date hereof, Istithmar has purchased ordinary shares
(the "Company Shares") of the Company, par value $0.001 per share, pursuant to
the Stock Purchase Agreement dated as of July 15, 2004 between the Company and
Istithmar (the "Company Purchase Agreement").
B. On the date hereof, Istithmar has purchased ordinary shares
(the "Other Shares") of the Company, par value $0.001 per share, pursuant to
stock purchase agreements dated as of July 15, 2004 among Istithmar and certain
shareholders (the "Other Purchase Agreements" and, together with the Company
Purchase Agreement, the "Purchase Agreements").
C. In connection with the purchase and sales of the Company
Shares and the Other Shares, the Company and Istithmar entered into a Corporate
Governance Agreement dated as of the date of this Agreement (the "Governance
Agreement"), and the Company, Istithmar and certain shareholders of the Company
entered into a letter agreement dated as of the date of this Agreement (the
"Letter Agreement") regarding voting for directors, certain matters relating to
registration rights and other matters.
D. The parties have agreed to enter into this Agreement in
order to provide Istithmar with certain registration rights.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Certain Definitions. For the purposes of this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other
Person controlling, controlled by or under direct or indirect common control
with such Person. For the purposes of this Agreement, "control," when used with
respect to any specified Person, shall mean, (a) as determined with respect to
each Person pursuant to the laws of the jurisdiction where such Person is
organized, the actual or deemed direction of the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise, or (b) the power to direct the management and policies
of such Person whether through ownership of voting securities, by contract or
otherwise if there exists any agreement, arrangement or understanding, whether
oral or written, between such specified Person and the Person who has such power
(together with any Affiliates thereof, the "Power Person") with regard to the
Power Person taking an action that the specified Person is prohibited from
taking under this Agreement or the specified Person not taking an action it is
required to take under this Agreement, or matters related to either of the
foregoing; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing. For the avoidance of doubt, for purposes of this
Agreement the Company shall be deemed not to be an Affiliate of Istithmar.
"Authorized Representative" shall have the meaning ascribed
thereto in Section 2.1(d).
"Beneficial Ownership" shall have the meaning set forth in
Rule 13d-3 under the Securities Exchange Act as of the date of this Agreement;
and the terms "Beneficially Owned" and "Beneficially Owns" shall have meanings
correlative to the foregoing.
"Business Combination" means any one of the following
transactions:
(i) any merger or consolidation of the Company or any of its
Subsidiaries with any Person, or any tender or exchange offer by any such Person
for any Equity Securities of the Company or any of its Subsidiaries; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition by the Company (in one transaction or a series of
transactions) to any Person of assets constituting a Substantial Part of the
Company; or
(iii) the issuance, exchange or transfer by the Company or any
of its Subsidiaries (in one transaction or series of transactions) of any
securities of the Company or any of its Subsidiaries to any member of the WLG
Group, the Kersaf Group, the Caledonia Group, the CMS Group or the Istithmar
Group that increases such member's Voting Interest, or to any other Person in
excess of ten percent (10%) of the Shares issued and outstanding as of the date
of such issuance; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Company; or
(v) any transaction having, with respect to the Company, the
effect of a "Rule 13e-3 transaction" (as defined in Rule 13e-3(a)(3) of the
Securities Exchange Act); or
(vi) any agreement, contract or other arrangement with any
Person providing for any one or more of the actions specified in clauses (i) to
(v) above.
"Caledonia" means Caledonia Investments PLC, a company
incorporated under the laws of England.
"Caledonia Group" means, as of any date, Caledonia and all of
its Affiliates as of such time.
"CMS" means Cement Merchants SA, a company incorporated under
the laws of Panama.
"CMS Group" means, as of any date, CMS and all of its
Affiliates as of such time.
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act or the
Securities Exchange Act.
"Company Event" shall have the meaning ascribed thereto in
Section 2.2.1(b).
"Convertible Securities" means securities of the Company
convertible into or exchangeable for Shares.
"Demand Piggyback Shares" shall have the meaning ascribed
thereto in Section 2.3.1(a)(i).
"Demand Registration" shall have the meaning ascribed thereto
in Section 2.2.1(a).
"Election Period" shall have the meaning ascribed thereto in
Section 2.3.1(a)(i).
"Equity Security" means (i) Shares, (ii) Convertible
Securities and (iii) any options, warrants or other rights issued by the Company
to acquire Shares or Convertible Securities.
"Holder" shall have the meaning ascribed thereto in Section
2.1(c).
"Incidental Registration" shall have the meaning ascribed
thereto in Section 2.3.1(b).
"Incidental Registration Piggyback Shares" shall have the
meaning ascribed thereto in Section 2.3.1(b).
"Indemnified Party" shall have the meaning ascribed thereto
in Section 2.7.1.
"Initiating Holder" shall have the meaning ascribed thereto in
Section 2.2.1(a).
"Independent Director" means a director of the Company who (a)
is not (apart from such directorship) (i) an officer, Affiliate, employee,
principal stockholder, consultant or partner of any member of the WLG Group, the
Caledonia Group or the Istithmar Group or of any entity that was dependent upon
any member of the WLG Group, the Caledonia Group or the Istithmar Group for more
than five percent (5%) of its revenues or earnings in its most recent fiscal
year or (ii) an officer, employee, consultant or partner of the Company or any
Affiliate of the Company or an officer, employee, principal stockholder,
consultant or partner of an entity that was dependent upon the Company or any
Affiliate of the Company for more than five percent (5%) of its revenues or
earnings in its most recent fiscal year or (b) is designated by any of WLG,
Caledonia, CMS or Istithmar (whether or not such director is independent in
accordance with clause (a) above) but with respect to the matter under
consideration by the Board, the Group appointing such director does not have an
interest (financial or otherwise) that is different than the interest of the
Company.
"Istithmar Group" means Istithmar, Nakheel Co. LLC, Nakheel
Holdings 1 LLC, Nakheel Holdings 2 LLC, Nakheel Holdings 3 LLC and, as of any
date, any of their respective Subsidiaries and any Person engaged in investment
or commercial activities which is under the authority and control of the current
Executive Chairman of Istithmar comparable to the authority and control he
exercises over Istithmar as of the date hereof.
"Kersaf" means Kersaf Investments Limited, a company
incorporated under the laws of the Republic of South Africa.
"Kersaf Group" means, as of any date, Kersaf and all of its
Affiliates as of such time.
"Letter Agreement" shall have the meaning ascribed thereto in
the Recitals.
"Notice" shall have the meaning ascribed thereto in Section
2.3.1(a)(i).
"Permitted Transferee" shall have the meaning ascribed thereto
in Section 2.1(c).
"Person" means any individual, firm, partnership, company,
joint stock company, corporation, partnership, trust, estate, incorporated or
unincorporated association, syndicate, joint venture or organization, or any
government or any department, agency or other political subdivision thereof, or
any other entity, and shall include any successor of any such entity.
"Prior Registration Delay" shall have the meaning ascribed
thereto in Section 2.2.1(b).
"Registrable Securities" shall have the meaning ascribed
thereto in Section 2.1(b).
"Registration Expenses" shall have the meaning ascribed
thereto in Section 2.6.
"Securities Act" means the United States Securities Act of
1933 or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Securities Exchange Act" means the United States Securities
Exchange Act of 1934 or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Shares" means (a) the ordinary shares, par value $0.001 per
share, of the Company (including any dividends in kind thereon), or (b) any
other class of stock resulting from any reclassification, exchange,
substitution, combination, stock split or reverse stock split, including in
connection with any merger or otherwise, of such ordinary shares.
"Standstill Expiration Date" means August 10, 2009.
"Subsidiary" of any Person means another Person, an amount of
the voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, fifty percent
(50%) or more of the equity interests of which) is owned directly or indirectly
by such first Person or by another subsidiary of such first Person.
"Substantial Part of the Company" means, as of any date,
twenty percent (20%) or more of the book value of the consolidated tangible
assets of the Company and its Subsidiaries, taken as a whole (without regard to
any liabilities of the Company or any of its Subsidiaries), as of the end of its
most recent fiscal quarter ending prior to the time the determination is made.
"2001 Agreement" means the Registration Rights and Governance
Agreement, dated as of July 3, 2001, among the Company, Sun International
Investments Limited, WLG, Kersaf Investments Limited, Caledonia, Mangalitsa
Limited, CMS, Rosegrove Limited, Royale Resorts Holdings Limited and Sun
International Inc, as in effect on the date of this Agreement.
"2001 Agreement Holder" shall have the meaning ascribed to the
term "Holder" in Section 5.1(c) of the 2001 Agreement.
"2001 Agreement Registrable Securities" shall have the meaning
ascribed to the term "Registrable Securities" in Section 5.1(b) of the 2001
Agreement.
"Underwriter" shall have the meaning ascribed thereto in
Section 2.2.3.
"Underwriter Out" means the occurrence of any of the
following: (1) trading in securities generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (2) a banking
moratorium shall have been declared by federal or state authorities, (3) there
shall have been a declaration of a national emergency or war by the United
States or (4) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it impracticable or inadvisable to proceed with a public
offering.
"Underwritten Public Offering" shall mean a sale of securities
of the Company to an underwriter or underwriters for re-offering to the public,
which shall include customary selling efforts.
"WLG" means World Leisure Group Limited, a company
incorporated under the laws of the British Virgin Islands.
"WLG Group" means, as of any date, WLG and all of its
Affiliates as of such time, including Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx.
SECTION 1.2 Other Definitions. Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
2001 Agreement.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 General; Securities Subject to this Agreement. (a)
Grant of Rights. The Company hereby grants registration rights to each Holder
(as defined below) upon the terms and subject to the conditions set forth in
this Agreement.
(b) Registrable Securities. For the purposes of this
Agreement, "Registrable Securities" means the Company Shares, the Other Shares
and any Shares acquired prior to the Standstill Expiration Date by the Istithmar
Group in accordance with the Governance Agreement; provided, however, that
Shares shall cease to be Registrable Securities for purposes of this Agreement
when a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the Commission and all such
Registrable Securities have been disposed of pursuant to such effective
registration statement.
(c) Holders of Registrable Securities. A Person shall be a
holder of Registrable Securities (each, a "Holder") whenever such Person is a
member of the Istithmar Group (or a Person that has acquired Registrable
Securities, directly or indirectly, from a member of the Istithmar Group in
accordance with the Governance Agreement (such Person, a "Permitted
Transferee")), that (i) owns of record Registrable Securities and (ii) agrees in
writing to be bound by the terms of this Article II applicable to the Istithmar
Group. For purposes of this Agreement, a Holder shall be entitled to assign its
rights hereunder to a Permitted Transferee and such Permitted Transferee shall
acquire such rights only if such Permitted Transferee shall have acquired one
million (1,000,000) or more Registrable Securities pursuant to one (1) or more
transfers made in accordance with the Governance Agreement, and, for the
avoidance of doubt, shall include any Person who shall have acquired one million
(1,000,000) or more Registrable Securities from a member of the Istithmar Group
following the Standstill Expiration Date pursuant to any privately negotiated
purchase.
(d) If the Company receives conflicting instructions, notices
or elections from two (2) or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities. The
Company shall be entitled to rely upon any instruction received from the
authorized representative (the "Authorized Representative") of the Istithmar
Group appointed pursuant to Section 3.3. In furtherance of the foregoing
Istithmar hereby represents and warrants to the Company that the Authorized
Representative, as appointed from time to time, has and shall have the power and
authority to make, execute, acknowledge and deliver such notices, requests,
instructions, certificates, stock powers and other writing, and in general, to
do any and all things and to take any and all actions that such Authorized
Representative, in its sole and absolute discretion, may consider necessary,
proper or convenient in connection with or to carry out the activities described
in this Article II as the agent and attorney-in-fact of any Holder.
SECTION 2.2 Demand Registration Rights.
SECTION 2.2.1 Demand Registrations. (a) Each Holder shall have
the following rights to make written requests (specifying the intended method of
disposition) (such Holder, the "Initiating Holder") for registration under the
Securities Act (each, a "Demand Registration") of all or part of the Shares
which constitute such Initiating Holder's Registrable Securities:
(i) with respect to the Company Shares, the Other Shares or
any Shares acquired prior to the Standstill Expiration Date by the Istithmar
Group in accordance with the Governance Agreement, one (1) or more Demand
Registrations, each covering no less than one million (1,000,000) Shares; and
(ii) with respect to any Incidental Registration Piggyback
Shares requested by a Holder pursuant to Section 2.3.1 to be included in a
registered offering but excluded from such registration pursuant to Section
2.3.2(b) solely as a result of the inclusion in such registration of Shares to
be sold by any 2001 Agreement Holder, each Holder of such excluded Shares shall
have the right to make one (1) Demand Registration in respect of the aggregate
number of Incidental Registration Piggyback Shares so excluded from such
registration; provided that the request for such Demand Registration must be
made no later than the three (3) month anniversary of the first date on which
the Company is permitted in accordance with this Agreement, the 2001 Agreement
and otherwise to file such registration statement.
(b) If at the time of any request to register Registrable
Securities pursuant to this Section 2.2.1, the Company is engaged in a
registered public offering, intends to file a registration statement solely with
respect to the sale of Shares by the Company within forty five (45) days of such
time or is engaged in any activity other than the filing of a registration
statement which, in the reasonable good faith determination of the Board of
Directors, after consultation with outside counsel, would be required to be
disclosed under applicable law as a result of such request and would be
materially and adversely affected by the requested registration (each, a
"Company Event"), then the Company may at its option, within five (5) business
days of such request, direct that such request be delayed, (A) in the case the
Company is engaged in a registered offering or intends to file such a
registration statement, for a reasonable period of time not in excess of the
lesser of (x) three (3) months from the date of such request or (y) forty five
(45) days from the effective date of such offering (provided, however, that
where such delay is requested by the Company as a result of its intention to
file a registration statement within forty five (45) days of such time, the
Company may exercise its rights hereunder only to the extent that such
registration statement is actually filed by the Company within such forty five
(45) day period) and (B) in the case of any other activity, for a reasonable
period of time not in excess of forty five (45) days from the date of such
direction by the Company, provided, however, that notwithstanding the foregoing
such forty five (45) day period may be extended to the extent that the failure
to file such registration statement is the result of the Company not having
available financial statements or other information required to be included in
such registration statement and the Company has used commercially reasonable
efforts to obtain such financial statements or other information as soon as
practicable. In the event any Initiating Holder(s) have made a written request
to the Company for a Demand Registration and the conditions described in the
immediately preceding sentence shall not exist as of the time of such request,
such Demand Registration may not be delayed except as a result of the Company
becoming involved in any activity other than the filing of a registration
statement which, in the reasonable good faith determination of the Board of
Directors, after consultation with outside counsel, would be required to be
disclosed under applicable law as a result of such Demand Registration and would
be materially and adversely affected by the requested registration (and such
circumstances shall be deemed to constitute a Company Event for all purposes of
this Agreement); provided, however, that such delay shall be made for a
reasonable period of time not in excess of forty five (45) days from the date of
such direction by the Company, provided, however, that notwithstanding the
foregoing such forty five (45) day period may be extended to the extent that the
failure to file such registration statement is the result of the Company not
having available the financial statements or other information required to be
included in such registration statement and the Company has used commercially
reasonable efforts to obtain such financial statements or other information as
soon as practicable. In addition, the Company shall not be required to file any
registration within six (6) months after the effective date of any other
registration statement of the Company (the "Prior Registration Delay").
Notwithstanding the foregoing, the Company shall, upon reasonable prior written
notice by any Holder, use its commercially reasonable efforts to be prepared to
file a registration upon the expiration of such six (6) months.
(c) The obligations of the Company to take the actions
contemplated by this Section 2.2.1 hereof with respect to an offering of Shares
shall be subject to the following conditions and limitations:
(i) Each participating Holder shall conform to all
applicable requirements of the Securities Act and the Securities
Exchange Act with respect to the offering and sale of securities and
advise each Underwriter, broker or dealer through which any of the
Registrable Securities are offered that the Registrable Securities are
part of a distribution that is subject to the prospectus delivery
requirements of the Securities Act.
(ii) Except if the Initiating Holder(s) pay any incremental
costs incurred by the Company, the fulfillment of the Company's
obligations in connection with such registration shall not require the
Company to prepare audited financial statements not required to be
prepared for the Company to comply with its obligations under the
Securities Exchange Act as of any date not coincident with the last day
of any fiscal year of the Company.
SECTION 2.2.2 Effective Demand Registration. Subject to
Section 2.2.1(b) of this Agreement and the Company's obligations under Section
5.4(b) of the 2001 Agreement, the Company shall use reasonable commercial
efforts to cause any Demand Registration to become effective not later than
ninety (90) days after it receives a request under Section 2.2.1 hereof and to
remain effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold and (ii) one hundred
and twenty (120) days; provided, however, that if the Initiating Holder(s)
requests the Company to withdraw such registration, other than as the result of
a breach by the Company, the Initiating Holder(s) shall promptly pay all of the
costs and expenses incurred by the Company in connection with such registration.
SECTION 2.2.3 Underwriting Procedures. (a) Selection of
Underwriters. The offering of Registrable Securities pursuant to a Demand
Registration may be in the form of a firm commitment underwritten offering and
the managing underwriter selected for such offering shall be an internationally
recognized underwriter jointly selected by, and engaged on terms and conditions
mutually satisfactory to, the Company and the Initiating Holder, each acting in
good faith (having due regard to the experience and relationship with the
Company and the Initiating Holder(s) of the managing underwriter) (the
"Underwriter"). Each of the parties agrees and acknowledges that any of Bear
Xxxxxxx, Citigroup Global Markets, Deutsche Bank, JPMorgan, Xxxxxx Brothers and
Xxxxxxx Xxxxx shall, subject to the execution of customary underwriting
agreements on commercially reasonable terms therewith, be deemed to satisfy the
requirements of the immediately preceding sentence to serve as a managing
Underwriter or a member of an underwriting syndicate.
(b) Distribution by Underwriters. The managing Underwriter
selected for any offering shall enter into an agreement (containing customary
indemnification provisions and representations and warranties) with the Company
and the Holders whereby the Holders shall direct the underwriters to take
reasonable steps to ensure a wide distribution of the underwritten shares in
accordance with customary practices and that after giving effect to any such
sale, no purchaser (together with its Affiliates) would Beneficially Own four
and nine-tenths percent (4.9%) or more of the outstanding Shares of the Company
as of such time.
SECTION 2.3 Incidental or "Piggy-Back" Registration Rights.
SECTION 2.3.1 Demand and Company Registrations.
(a) Demand Registrations.
(i) Within ten (10) days after receipt of a request for a
Demand Registration, the Company shall give written notice (the
"Notice") of such request to all the Holders (other than the Initiating
Holder(s)). Each of the Holders other than the Initiating Holder(s)
shall, subject to the other provisions of this Section 2.3, upon
receipt of written request therefor within ten (10) days after the
Notice is given (the "Election Period"), have the right to include in
such Demand Registration the number of Registrable Securities
registrable by such Holder pursuant to Section 2.2.1 of this Agreement
as of the time such Notice is made (the "Demand Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to
be registered by any Holder shall be subject to the following
conditions: (A) in respect of a registration relating to any
Underwritten Public Offering, (x) compliance with the "cutback"
provisions contained in Section 2.3.2, (y) acceptance by such Holder of
the timing and terms and conditions of the subject Underwritten Public
Offering (as evidenced by each such Holder and, if applicable, any
other participating member of the Istithmar Group, becoming a party to
the applicable underwriting agreement) and (z) the Underwriter being of
the opinion that the sale of Shares by such Holder and, if applicable,
any other participating member of the Istithmar Group, would not have a
material and adverse effect on the market for the Shares and, if
applicable, any other securities issued by the Company.
(iii) In the event that the Initiating Holder(s) requests
the Company to withdraw a Demand Registration, Holders who shall have
elected to register Demand Piggyback Shares as of the date of such
withdrawal shall have the right, upon one (1) business day's prior
written notice to the Company, to pursue such registration; provided,
however, that the requirements of Section 2.2.1 shall otherwise be
satisfied.
(iv) Subject to the foregoing and Section 2.3.2, (A) the
Company shall include in such registration all Registrable Securities
that the Company has received written requests for inclusion therein
within the Election Period and (B) thereafter, in the case of a Demand
Registration, the Company may elect to include in such registration
additional Shares issued by the Company. All requests made pursuant to
this Section 2.3.1 shall specify the aggregate number of Registrable
Securities to be registered. For the avoidance of doubt, no Person
other than a Holder or the Company shall have the right to include
Shares in any Demand Registration pursuant to Section 2.2.1 of this
Agreement, and the Company shall not include Shares of any Person other
than a Holder or the Company in any such Demand Registration.
(b) Company Registrations. If, at any time from time to time,
the Company shall determine to register any of its Shares for sale in
an Underwritten Public Offering for its own account (other than a
registration relating to (i) a registration of an employee compensation
plan or arrangement adopted in the ordinary course of business on Form
S-8 (or any successor form) or any dividend reinvestment plan or (ii) a
registration of securities on Form F-4 (or any successor form)
including, without limitation, in connection with a proposed issuance
in exchange for securities or assets of, or in connection with a merger
or consolidation with another Person), the Company will promptly give
to the Holders written notice thereof, and include in such registration
(subject to Section 2.3.2) all the Registrable Securities specified in
a written request made by any one or more of the Holders (the
"Incidental Registration Piggyback Shares") within ten (10) days after
such Holder's receipt of such written notice from the Company
("Incidental Registration"). The right of such Holder to have
Registrable Securities included in a registration pursuant to this
Section 2.3.1 shall be conditioned upon such Holder accepting the
timing and terms and conditions of the subject Underwritten Public
Offering (as evidenced by each such Holder and, if applicable, any
participating member of the Istithmar Group, becoming a party to the
applicable underwriting agreement).
SECTION 2.3.2 Cutback. (a) If the lead managing Underwriter of
an offering covered by Section 2.3.1(a) of this Agreement shall advise the
Company on or before the date five (5) days prior to the date then scheduled for
such offering that, in its view, the amount of Shares requested to be included
in such registration exceeds the amount which can be sold in such offering
without having a material and adverse effect on the market for the Shares and,
if applicable, any other securities issued by the Company, then the Company will
include in such registration:
first, any Registrable Securities requested to be registered
by any Holders, allocated, if necessary, pro rata among such Holders on the
basis of the number of the Shares proposed to be registered at the time; and
second, any Shares proposed to be registered by the Company.
(b) If the lead managing Underwriter of an offering covered by
Section 2.3.1(b) of this Agreement shall advise the Company on or before the
date five (5) days prior to the date then scheduled for such offering that, in
its view, the amount of Shares requested to be included in such registration
exceeds the amount which can be sold in such offering without having a material
and adverse effect on the market for the Shares and, if applicable, any other
securities issued by the Company, then the Company will include in such
registration:
first, any Shares proposed to be registered by the Company;
second, any 2001 Agreement Registrable Securities requested to
be registered by any 2001 Agreement Holder; and
third, any Registrable Securities requested to be registered
by any Holders, allocated, if necessary, pro rata among such Holders on the
basis of the number of the Shares proposed to be registered at the time.
SECTION 2.3.3 Right of Termination. The Company shall have the
right to terminate or withdraw any registration initiated by it under Section
2.3.1(b) prior to the effectiveness of such registration whether or not the
Holders have elected to include Registrable Securities in such registration. In
the event that the Company provides the Holders who shall have elected to
participate in such Company registration, notice of its intention to withdraw or
terminate such registration, the Holders who shall have elected to register
Shares pursuant to the Incidental Registration, shall have the right, upon one
(1) business day's prior written notice to the Company, to pursue such
registration as a Demand Registration; provided, however, that (a) the
requirements of Section 2.2.1 shall otherwise be satisfied and (b) this right
shall be subject to the rights of the 2001 Agreement Holders under Section 5.3.3
of the 2001 Agreement.
SECTION 2.4 Provisions Applicable to Demand and Piggy-Back
Registrations.
SECTION 2.4.1 Expenses. The Company shall pay all Registration
Expenses (as defined in Section 2.6 hereof) incurred in connection with any
registration pursuant to Section 2.2 or 2.3, unless such registration fails to
become effective as a result of the fault of one or more Holders or any member
of the Istithmar Group, in which case the Company will not be required to pay
the Registration Expenses incurred with respect to the offering of such Holder's
or Holders' Registrable Securities, in which case such Registration Expenses
shall be paid by the Holder or the member of the Istithmar Group at fault.
SECTION 2.4.2 Holdback Agreements. (a) Each Holder agrees not
to effect any sale or distribution of any Registrable Securities, including a
sale pursuant to Rule 144 under the Securities Act, during the twenty (20) days
prior to and ninety (90) day period beginning on the effective date of any
Demand Registration or Incidental Registration (except as part of such
registration), if and to the extent requested by the Company or any Holder
participating in the offering, in the case of a non-Underwritten Public
Offering, or if and to the extent requested by the Underwriter, in the case of
an Underwritten Public Offering.
(b) Restrictions on Public Sale by the Company. The Company
agrees not to file any registration statement with respect to any of its Equity
Securities (except pursuant to registrations on Form F-4 or S-8 or any successor
thereto or registrations of the sale of debt securities that are Convertible
Securities), during the period beginning on the effective date of any
registration statement in which the Holders of Registrable Securities are
participating and ending on the earlier of (i) ninety (90) days after the
effective date of such registration statement and (ii) the number of days agreed
upon by the managing Underwriter of such registered offering which included such
Registrable Securities and the Company.
SECTION 2.5 Registration Procedures.
In connection with any registration statement filed pursuant
to this Agreement, the Company will, as expeditiously as possible:
(a) in connection with a request pursuant to this Agreement,
prepare and file with the Commission, after receipt of a request to file a
registration statement with respect to Registrable Securities, a registration
statement on any form for which the Company then qualifies (or which counsel for
the Company shall deem appropriate) and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof, shall comply in all material respects with the Securities
Act and/or the Securities Exchange Act, as the case may be and, if the offering
is an Underwritten Public Offering, shall be reasonably satisfactory to the
managing Underwriter or Underwriters, and use its commercially reasonable
efforts to cause such registration statement to become effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall (i) furnish to the counsel
selected by the Initiating Holder(s), if any, copies of all such documents
proposed to be filed, and (ii) notify such counsel and each participating Holder
of any stop order issued or threatened by the Commission and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered;
(b) in connection with a registration pursuant to this
Agreement, (i) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not more than one hundred twenty (120) days (or such shorter period
that will terminate when all Registrable Securities covered by such registration
statement have been disposed of) and (ii) cause each registration filed with the
Commission, as amended or supplemented, to comply with the provisions of the
Securities Act, the Securities Exchange Act and the rules and regulations
thereunder applicable to it with respect to the disposition of all Shares
covered by each registration statement during the applicable period specified
herein in accordance with the intended method or methods of distribution;
(c) furnish to each participating Holder, without charge, such
number of copies of the registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus included
in such registration statement (including each preliminary prospectus) and such
other documents as each seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder;
(d) use commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions as any participating Holder or Underwriter reasonably
requests in writing and do any and all other acts and things that may be
reasonably necessary or advisable to register or qualify for sale in such
jurisdictions the Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified, (ii) subject
itself to taxation in any such jurisdiction, (iii) consent to general service of
process in any such jurisdiction or (iv) provide any undertaking required by
such other securities or "blue sky" laws or make any change in its charter
documents that the Board of Directors of the Company (including a majority of
the Company's Independent Directors) determines in good faith to be contrary to
the best interest of the Company and its shareholders;
(e) use commercially reasonable efforts to cause the
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
participating Holder(s) or the Underwriters, if any, to consummate the
disposition of such Registrable Securities;
(f) notify each participating Holder at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus included in
such registration statement 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, in light of the circumstances under which they were
made, not misleading, and prepare and file with the Commission as soon
thereafter as practicable, after consultation with the Initiating Holder(s), a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(g) enter into customary agreements (including an underwriting
agreement in customary form, if the offering is an Underwritten Public Offering)
(which shall include customary (i) indemnification and contribution provisions
and representations and warranties and (ii) conditions precedent including the
provision of comfort letters and legal opinion to the underwriters) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities;
(h) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission;
(i) use commercially reasonable efforts to cause all
Registrable Securities covered by the registration statement to be listed on
each securities exchange or market, if any, on which similar securities issued
by the Company are then listed, provided that the applicable listing
requirements are satisfied;
(j) subject to the payment of the incremental costs by the
Initiating Holder(s) in accordance with Section 2.2.1(c), make available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Sections 11(a) of the Securities Act and Rule 158
thereunder;
(k) cooperate and assist in any filings required to be made
with the New York Stock Exchange, including in order for the Registrable
Securities to be admitted to listing on the New York Stock Exchange;
(l) subject to the delivery of confidentiality agreements
satisfactory to the Company, make available for inspection by representatives of
any Underwriters participating in any disposition pursuant to a registration
statement (including any "qualified independent underwriter" that is required to
be retained in accordance with the rules and regulations of the New York Stock
Exchange) and any counsel or accountant retained thereby, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably requested by any such Persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such Underwriter or counsel or
accountant in connection with a registration statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Underwriters or their counsel or accountant
upon prior reasonable prior written notice to the Company;
(m) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a registration
statement;
(n) notify each participating Holder (i) when a registration
statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the Commission or
any state securities authority for post-effective amendments and supplements to
a registration statement and prospectus or for additional information after the
registration statement has become effective, (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose, (iv) in the case of a registration, if, between the effective
date of a registration statement and the closing of any sale of Registrable
Securities, the representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to the offering cease to be true and correct in all material
respects; and
(o) in connection with an Underwritten Public Offering in
excess of two million (2,000,000) Shares, use commercially reasonable efforts to
commence a road show (and make commercially reasonable efforts to make Xxxxxx X.
Xxxxxxx or his successor available to participate in such road show) upon notice
from the managing Underwriter that, in the opinion of such Underwriter, such
selling efforts are advisable.
The Company may require each participating Holder and each
participating member of the Istithmar Group as to which any registration is
being effected to furnish to the Company such information regarding the
distribution of such securities and other matters as may be required to be
included in the registration statement.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in paragraph (f) of
this Section 2.5, such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (f) of this Section
2.5 and, if so directed by the Company, such Holder shall deliver to the Company
all copies, other than permanent file copies then in such Holder's possession or
copies delivered to prospective purchasers, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice, notwithstanding anything to the contrary
contained herein, the Company shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including the period referred to in paragraph (b) of this Section 2.5) by the
number of days during the period from and including the date of the giving of
such notice pursuant to paragraph (f) of this Section 2.5 to and including the
date when each participating Holder covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by paragraph (f) of this Section 2.5.
SECTION 2.6 Registration Expenses. The Company shall pay all
expenses incident to its performance of or compliance with the registration of
Registrable Securities to be sold in accordance with this Agreement; provided,
however, that the Company shall not pay the costs and expenses of any Holder and
each participating member of the Istithmar Group relating to underwriters'
commissions and discounts and fees payable to the Commission relating to
Registrable Securities to be sold by such Holder and each participating member
of the Istithmar Group, brokerage fees, transfer taxes or the fees or expenses
of any counsel, accountants or other representatives retained by such Holders
and each participating member of the Istithmar Group, individually or in the
aggregate. All of the expenses described in this Section 2.6 that are to be paid
by the Company are herein called the "Registration Expenses".
SECTION 2.7 Indemnification; Contribution.
SECTION 2.7.1 Indemnification by the Company. The Company
agrees to indemnify to the fullest extent permitted by law, in the case of any
registration statement filed pursuant to this Agreement, each participating
Holder and each participating member of the Istithmar Group covered by such
registration statement, each other Person who participates as an underwriter in
the offering or sale of such securities, and each Person, if any, who controls
such participating Holder or any such underwriter within the meaning of the
Securities Act (each an "Indemnified Party" and collectively, the "Indemnified
Parties") against any and all losses, claims, damages or liabilities to which
such Indemnified Party may become subject under the Securities Act or otherwise,
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 or
any omission or alleged omission of a material fact to be stated in any
registration statement under which such securities were registered under the
Securities Act, prospectus or preliminary prospectus filed by the Company or any
amendment thereof or supplement thereto or necessary to make the statements
therein (in the case of a prospectus in light of the circumstances under which
they were made) not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company;
provided, however, that the Company shall not be liable to the extent that any
loss, claim, or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Indemnified Party expressly for use in the Registration Statement; provided,
further, that the Company shall not be liable to any participating Holder or to
any participating member of the Istithmar Group (or to any Person who acts as an
underwriter in such sale or who controls such seller) to the extent that any
loss, claim, or liability arises out of an untrue statement, alleged untrue
statement, omission, or alleged omission made in any preliminary prospectus if
either (a)(i) such participating Holder failed to send or deliver a copy of the
prospectus with or prior to written confirmation of the sale by such
participating Holder to the Person asserting the claim, (ii) the prospectus
would have corrected such untrue statement, alleged untrue statement, omission
or alleged omission and (iii) the Company has furnished such Holder a sufficient
number of copies of same in accordance with Section 2.5(c); or (b)(x) such
untrue statement, alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the prospectus and (y) having been
furnished by or on behalf of the Company with copies of the prospectus as so
amended or supplemented, such participating Holder fails to deliver such
prospectus as so amended or supplemented, with or prior to the written
confirmation of the sale by such participating Holder to the Person asserting
the claim.
SECTION 2.7.2 Indemnification by Holders. In connection with
any registration statement in which a Holder or any member of the Istithmar
Group is participating, each such Holder shall furnish to the Company in writing
such information with respect to such Holder and any member of the Istithmar
Group as is required to be included in such registration statement pursuant to
the rules and regulations under the Securities Act and each such Holder agrees
to indemnify, to the fullest extent permitted by law, the Company, its officers,
directors and agents and each Person, if any, who controls the Company (within
the meaning of the Securities Act) against any and all losses, claims, damages,
and liabilities resulting from any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in any registration statement, prospectus or preliminary prospectus
filed by the Company or any amendment thereof or supplement thereto or necessary
to make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, but only to the extent
that such untrue or alleged untrue statement or omission or alleged omission was
made in reliance upon and conforms with written information concerning such
Holder furnished by such Holder to the Company expressly for use in any such
prospectus or preliminary prospectus; provided, however, that the liability of
such Holder shall not exceed the net proceeds received by such Holder and the
participating member of the Istithmar Group from the sale of its Registrable
Securities. Each Holder also shall indemnify any underwriters of the Registrable
Securities, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Company (but only to
the extent that any untrue statement or omission or alleged omission was made in
reliance upon and conforms with written information concerning such Holder
furnished by such Holder to such underwriter expressly for use in such
prospectus or preliminary prospectus); provided, however, that the
indemnification of such Holder shall be limited to the net proceeds received by
such Holder and the participating members of the Istithmar Group from the sale
of its Registrable Securities.
SECTION 2.7.3 Contribution. If the indemnification provided
for in this Section 2.7 is unavailable to any Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, to the extent such indemnification is
unavailable, in lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party (and, if the indemnifying
party is a Holder, aggregated with the relative fault of the participating
members of the Istithmar Group) and Indemnified Parties in connection with the
actions that resulted in such losses, claims, damages, liabilities or expenses.
The relative fault of such indemnifying party or, if applicable, any
participating members of the Istithmar Group and Indemnified Parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or, if applicable, any
participating member of the Istithmar Group or Indemnified Parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7.3 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person.
SECTION 2.8 Reporting Company Covenant. The Company covenants
and agrees that it shall use commercially reasonable efforts to satisfy the
listing requirements of the New York Stock Exchange; provided, however, that the
foregoing covenant shall terminate upon the consummation of any Business
Combination.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Interpretation; Certain Definitions. When a
reference is made in this Agreement to a Section or Subsection, such reference
shall be to a Section or Subsection of, this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein", "hereto", "hereby" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
term "or" is not exclusive. The word "extent" in the phrase "to the extent"
shall mean the degree to which a subject or other thing extends, and such phrase
shall not mean simply "if". The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented. References to a Person are also
to its permitted successors and assigns.
SECTION 3.2 Adjustments. References to numbers of Shares and
to sums of money contained herein shall be adjusted to account for any
reclassification, exchange, combination, substitution, combination, stock split
or reverse stock split of the Shares, including in connection with any merger or
otherwise.
SECTION 3.3 Notices. All notices, requests and other
communications to any party hereunder shall be in writing and shall be deemed
given (i) when delivered, if delivered in person, (ii) when sent by facsimile
(provided the fax is promptly confirmed by telephone confirmation thereof),
(iii) when sent by email (provided the email is promptly confirmed by telephone
confirmation thereof) and (iv) two business days following sending by overnight
delivery by an internationally recognized overnight courier, in each case, to
the respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section
3.3):
if to the Company, to:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: General Counsel
Facsimile: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxx.xxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: XXxxxxxx@xxxxxxx.xxx
if to Istithmar, to its Authorized Representative:
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
PO Box 17000
Dubai, United Arab Emirates
Attention: Chief Executive Officer
Facsimile: x000 0 000 0000
Email: xxxx@xxxxxxxxx.xx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: XXxxxxxxxx@xxxx.xxx
SECTION 3.4 Amendments; No Waivers. (a) No provision of this
Agreement may be amended or waived unless such amendment or waiver is in writing
and signed by each of the Company and Istithmar, and, in the case of a waiver,
by the party against whom the waiver is to be effective; provided that no such
amendment or waiver shall be effective against the Company without the prior
approval of a majority of the Company's Independent Directors.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 3.5 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors. Except as expressly provided herein, no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement.
SECTION 3.6 Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed entirely within such State and, to the
extent applicable, the federal securities laws of the United States.
SECTION 3.7 Jurisdiction. (a) Each party inter se irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Southern District of New York, solely for the purposes of any suit, action or
other proceeding arising out of this Agreement or any transaction contemplated
hereby or thereby. Each party agrees to commence any such action, suit or
proceeding either in the United States District Court for the Southern District
of New York or if such suit, action or other proceeding may not be brought in
such court for jurisdictional reasons, in the Supreme Court of the State of New
York, New York County. Each of the parties hereto further irrevocably consents,
and shall cause each of its Affiliates to irrevocably consent, to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, return receipt requested, to such
party at its address as provided for notices hereunder. Each party irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby and thereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(b) Istithmar confirms that (i) it is not a party to any
agreement with the United States of America relating in any way to the immunity
of Istithmar from jurisdiction of courts, suit, execution upon a judgment,
attachment prior to judgment or in aid of execution upon a judgment or any other
legal process and (ii) it is, under the law of Dubai, subject to civil and
commercial law with respect to its obligations under this Agreement and has
agreed not to assert the defense of immunity, on the grounds of sovereignty or
otherwise, in respect of any suit, action or proceeding arising out of or
relating to claims under this or the consummation of the transactions
contemplated hereby or thereby.
SECTION 3.8 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signature thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other party hereto.
SECTION 3.9 Specific Performance. The parties hereto (and any
Person who agrees to be bound hereby pursuant to the terms hereof) acknowledge
and agree, and shall cause each of its Affiliates to agree, that their
respective remedies at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate and, in recognition of that
fact, agree that, in the event of a breach or threatened breach by any party (or
any of such Persons) of the provisions of this Agreement, in addition to any
remedies at law, they shall, respectively, without posting any bond, be entitled
to obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
SECTION 3.10 No Third Party Beneficiaries. Nothing contained
in this Agreement, express or implied, is intended to or shall confer upon
anyone other than the parties hereto (and their permitted successors and
assigns) any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 3.11 Termination. The provisions of this Agreement
shall terminate as to any Holder upon the date such Holder no longer
Beneficially Owns any Registrable Securities.
SECTION 3.12 Severability. If any provision of this Agreement
or the application of any provision hereof to any party hereto or set of
circumstances is held invalid, the remainder of this Agreement and the
application of such provision to the other parties hereto or sets of
circumstances shall not be affected, unless the provisions held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
SECTION 3.13 Entire Agreement; 2001 Agreement. This Agreement,
the Company Purchase Agreement, the Governance Agreement, and the Letter
Agreement contain the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter. Notwithstanding
any provision herein to the contrary, this Agreement shall not require the
Company to take any action or refrain from taking any action if the taking of
such action or refraining from taking such action will result in a breach of the
2001 Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXXXX INTERNATIONAL LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
ISTITHMAR PJSC
By: /s/ Sultan A. Bin Sulayem
-------------------------------------
Name: Sultan A. Bin Sulayem
Title: Chairman
