EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 31, 1998 (the
"Agreement"), among Gilat Satellite Networks Ltd., a corporation formed under
the laws of the State of Israel (the "Company"), General Electric Company, a
corporation incorporated under the laws of the State of New York ("GE Parent"),
GE American Communications, Inc., a corporation incorporated under the laws of
the State of Delaware ("GE Americom"), General Electric Finance Holding GmbH, a
corporation formed under the laws of Germany ("GmbH"), and General Electric
Plastics B.V., a corporation formed under the laws of the Netherlands ("BV,"
and, collectively with GE Parent, GMBH and GE Americom, "GE").
1. Introduction. The parties hereto are parties to (i) the separate
Agreement and Plan of Merger (the "US Merger Agreement"), dated September 25,
1998, with GE Americom, GE Capital Spacenet Services, Inc. ("Spacenet"), the
Company and Jonah Acquisition Corp., (ii) the separate Stock Purchase Agreement
(the "GMBH Agreement"), dated September 25, 1998, by and between GmbH and the
Company, (iii) the separate Stock Purchase Agreement (the "BV Agreement," and,
together with the GMBH Agreement and the US Merger Agreement, collectively, the
"Merger Agreement"), dated September 25, 1998, by and between BV and the
Company, respectively, pursuant to which the Company has agreed, among other
things, to issue 4,927,504 shares (the "Merger Shares") of its Ordinary Shares,
par value NIS 0.01 per share (the "Ordinary Shares"), to GE and (iv) the
separate Trademark Agreement, dated December 31, 1998 (the "Trademark
Agreement"), among GE Parent, Spacenet and the Company, pursuant to which the
Company has agreed among other things, to issue 72,496 Ordinary Shares (the
"Trademark Shares," and, together with the Merger Shares and any Contingent
Shares (as defined below), the "GE Shares") to GE Parent. This Agreement shall
become effective upon the issuance of such securities to GE pursuant to the
Merger Agreement and to GE Parent pursuant to the Trademark Agreement.
Concurrently with the execution hereof, GE is entering into a Shareholders'
Agreement with certain other shareholders of the Company (the "Shareholders
Agreement") with respect to the Ordinary Shares owned by it. Certain capitalized
terms used in this Agreement are defined in Section 2 hereof; unless otherwise
stated, references to sections shall be to sections of this Agreement.
2. Definitions. For the purposes of this Agreement:
(1) The term "Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly controls, or is controlled by or under
common control with the first such Person. For the purpose of this definition,
"control" (including the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities or by contract or agency or otherwise.
(2) The term "Bulk Transferee" means any Person other than GE or any
of its Affiliates who is at such time a holder of GE Shares representing at
least 5% of the then outstanding Ordinary Shares, provided that (x) the transfer
of such GE Shares to, and the holding of such shares by, such Bulk Transferee
complies in all respects with the applicable terms of the Shareholders Agreement
and (y) such Bulk Transferee executes an instrument, in form and substance
reasonably satisfactory to the Company, pursuant to which it agrees to be bound
by the terms of this Agreement as if named as a party herein.
(3) The term "Holder" means a holder of Registrable Securities or,
unless the context otherwise requires, securities convertible into or
exercisable for Registrable Securities; provided that no Person shall be a
Holder for the purposes of this Agreement unless (i) such Person is GE or an
Affiliate of GE or a Bulk Transferee and (b) any transfer to, and the holding
by, such Person of such Registrable Securities are in compliance with the terms
of the Shareholders Agreement.
(4) The term "Person" shall mean an individual or a corporation,
association, partnership, limited liability company, joint venture,
organization, business, trust or any other entity or organization, including a
government or any subdivision or agency thereof, and shall include any successor
(by merger or otherwise) of such entity.
(5) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement.
(6) The term "Registrable Securities" means any GE Shares issued
pursuant to the Merger Agreement and the Trademark Agreement or pursuant to the
Non-Transferable Contingent Stock Right described in Section 2.1 of the Merger
Agreement (any shares issued under such Non-Transferable Contingent Stock Right
being referred to herein as "Contingent Shares") and, in each case, held by GE
or any of its Affiliates or any Bulk Transferee (and any and all shares of
capital stock of the Company or any successor or assign of the Company (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for such GE Shares or Contingent
Shares, by combination, recapitalization, reclassification, dividend, merger,
consolidation or otherwise); provided, however, that Registrable Securities
shall cease to be Registrable Securities when and to the extent that (i) such
Registrable Securities have been sold pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from the
2
registration requirements thereof (other than pursuant to the "First Immediate
Registration Statement" or an "Additional Registration Statement" as
contemplated by Section 3.1(1)), (ii) such Registrable Securities have become
eligible for resale pursuant to Rule 144(k) of the Securities Act (or any
similar provision then in force) or (iii) such Registrable Securities have
ceased to be outstanding.
(7) The term "Securities Act" shall mean the Securities Act of 1933,
as amended, or any successor statute.
(8) The term "Underwritten Offering" shall mean a firm commitment
public offering through a nationally recognized underwriter.
3. Registration under Securities Act, etc.
3.1 Immediate, Contingent, Initial and Tax Demand Registrations
(1) Immediate Registration. The Company shall use its reasonable best
efforts to prepare and cause to be filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-3 or any other
applicable short-form registration statement relating to the sale by the Holders
of all Registrable Securities (the "First Immediate Registration Statement"),
which First Immediate Registration Statement shall be filed at such time as GE
and the Company reasonably agree will allow the Company in using its reasonable
best efforts to cause such First Immediate Registration Statement to be declared
effective by the Commission on the Closing Date or as soon as reasonably
practicable thereafter. The Company shall promptly notify GE of such
effectiveness. The Company shall keep such First Immediate Registration
Statement effective until the Holders, using all reasonable practical and
diligent efforts, are able to effect the transfer of their Registrable
Securities to certain of their Affiliates. The Company shall reasonably
cooperate with the Holders in enabling them to effect such transfers, which
transfers shall (a) solely be made to one or more Affiliates of GE and (b)
comply in all respects with the terms of the Shareholders Agreement. GE shall
immediately notify the Company of the completion of the relevant transfers. The
Company shall have the right to withdraw the effectiveness of the First
Immediate Registration Statement (x) at any time from and after receipt of the
notification described in the preceding sentence from GE and (y) at any time
(following notice from the Company to GE of the effectiveness of the First
Immediate Registration Statement) that the Holders are not using all reasonable
practical and diligent efforts to effect the transfer of their Registrable
Securities (provided that GE shall be deemed not to be using all reasonable
practical and diligent efforts to effect such transfer if, without limitation,
GE shall not have sent its written request to the transfer agent with respect to
the transfer of the Registrable Securities and taken all such other steps
reasonably in its control in order to effect the transfer of Registrable
Securities within ten (10) business days of being notified by the Company of the
3
effectiveness of the First Immediate Registration Statement). If following the
date hereof (i) the Company issues or proposes to issue Contingent Shares to any
of the Holders or (ii) GE's counsel advises GE that it is reasonably necessary
or advisable for GE Parties to register additional transfers ("Counsel
Recommended Transfers") solely among GE and its Affiliates in addition to the
First Immediate Registration Statement and GE so notifies the Company in writing
(attaching a copy of the advice from counsel), the Company shall (subject to
Section 3.4 below) reasonably promptly file up to one (and not more than one)
additional registration statement with respect to Contingent Shares and such
registration statements as are necessary to register the Counsel Recommended
Transfers, in each case on Form F-3 or any other applicable short-form
registration statement (an "Additional Immediate Registration Statement," and,
together with the First Immediate Registration Statement, an "Immediate
Registration Statement") at such time as reasonably designated by written notice
to the Company from any GE party and use its reasonable best efforts to cause
such Additional Immediate Registration Statement to be declared effective by the
Commission as soon as reasonably practicable thereafter; provided, however, to
the extent that the First Immediate Registration Statement is still effective at
such time, the Company may use such First Immediate Registration Statement, as
amended or supplemented, to fulfill its obligations with respect to the filing
of an Additional Immediate Registration Statement. All of the procedures, rights
and obligations set forth herein with respect to the First Immediate
Registration Statement shall then apply with respect to such Additional
Immediate Registration Statement. Notwithstanding anything herein to the
contrary, in connection with any Immediate Registration Statement, (q) all
reasonable costs and expenses incurred in connection with any registration,
filing and offering of Registrable Securities pursuant to this Section 3.1(1),
including (without limitation) all reasonable registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and all reasonable costs incurred in connection with the
preparation of the Immediate Registration Statement, shall be paid and borne by
GE and GE shall promptly reimburse the Company for any such costs or expenses
incurred by the Company or any of its Affiliates and (r) all sections of the
Immediate Registration Statement relating to the transfer of securities
thereunder, including any "plan of distribution" or similar section and any
section relating to the selling shareholders, shall be prepared by GE; provided,
however, that if any securities other than Registrable Securities are registered
on any Immediate Registration Statement, a pro rata share of all costs shall be
allocated to such other securities and shall not be the responsibility of GE.
(2) Contingent Demand Registration Request. If Gilat is in breach of
any of its representations, warranties and consents set forth in the Merger
Agreement, which breach is likely to result in a Jonah Material Adverse Effect
(as defined in the Merger Agreement), upon receipt of a written request from GE
(the "Contingent Demand Notice"), the Company shall use its reasonable best
efforts to prepare and cause to be filed with the Commission as soon as
reasonably
4
practicable after receipt of such notice a registration statement relating to
the offer and sale by Holders of Registrable Securities (the "Contingent Demand
Shares") for which registration is requested in the Contingent Demand Notice
(the "Contingent Demand Registration Statement"). The Contingent Demand
Registration Statement will be a Short-Form Registration (as defined below)
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement (provided, however, that to the extent that a
Contingent Demand Registration is to be effected pursuant to an Underwritten
Offering, the Company shall include in the Short-Form Registration any
additional disclosure as reasonably requested by the managing underwriters
(which additional disclosure is reasonably customary in the reasonable opinion
of such managing underwriters to be included in underwritten offerings by
similarly situated companies)). The Contingent Demand Notice shall specify in
writing such number of Registrable Securities that the Holders request be
included in the Contingent Demand Registration Statement and the intended method
of distribution of such Registrable Securities (which method of distribution may
include an Underwritten Offering). If the first Contingent Demand Registration
Statement does not result in the disposition of all of the Contingent Demand
Shares, Gilat shall file additional Contingent Demand Registration Statements
until all of the Contingent Demand Shares have been sold. Notwithstanding the
foregoing, the Company shall not be required to effect: (i) any registration if
the Contingent Demand Shares that the Company shall have been requested to
register shall, as of the date of the request, represent less than one percent
(1%) of the outstanding Ordinary Shares; (ii) any registration if the
Registrable Securities that the Company shall have been requested to register
shall, as of the date of the request, have a Market Value (as defined below) of
less than $30 million or represent all of the Ordinary Shares then held in the
aggregate by the GE Parties; or (iii) any registration during the pendency of
any Blackout Period (as hereinafter defined). A registration of Registrable
Securities under this Section 3.1(2) is referred to herein as a "Contingent
Demand Registration". The Company shall use its reasonable best efforts to cause
such Contingent Demand Registration Statement to be declared effective by the
Commission as soon as reasonably practicable after the filing thereof.
(3) Initial Demand Registration Requests. From and after the date on
which the Company releases to the general public its year-end financial results
for the year ended December 31, 1999, upon receipt of each written request from
GE (the "Initial Demand Notice"), the Company shall use its reasonable best
efforts to prepare and cause to be filed with the Commission a registration
statement relating to the offer and sale by Holders of Registrable Securities of
up to such number of Registrable Securities (the "Initial Demand Shares"), the
sale of all of which Initial Demand Shares by such Holders will result in the GE
Shares then held by GE and its Affiliates representing not less than 15% of the
outstanding Ordinary Shares on such date as the Initial Demand Notice is
received by the Company (each, an "Initial Demand Registration Statement"). The
first Initial Demand Registration Statement shall be on Form F-1 or any similar
long-form registration ("Long-Form Registrations"); provided, however, that to
the extent agreed to in writing by GE, the first Initial
5
Demand Registration Statement may be a registration statement on Form F-2 or F-3
or any similar short-form registration (a "Short-Form Registration") whenever
the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement. Each subsequent Initial Demand Registration
Statements will be a Short-Form Registration whenever the Company is permitted
to use Form F-2 or F-3 or any other applicable short-form registration statement
(provided, however, that to the extent that an Initial Demand Registration
Statement relates to an Underwritten Offering, the Company shall include in the
Short-Form Registration any additional disclosure as reasonably requested by the
managing underwriters (which additional disclosure is reasonably customary in
the reasonable opinion of such managing underwriters to be included in
underwritten offerings by similarly situated companies)). Subject to the
limitations set forth in this Section, the Initial Demand Notice shall specify
such number of Registrable Securities that the Holders request be included in
the Initial Demand Registration Statement. Such Initial Demand Notice shall
specify in writing the intended method of distribution of such Registrable
Securities (which method of distribution may include an Underwritten Offering).
Notwithstanding the foregoing, the Company shall not be required to effect: (i)
any registration if the Initial Demand Shares that the Company shall have been
requested to register shall, as of the date of the request, represent less than
one percent (1%) of the outstanding Ordinary Shares; (ii) any registration if
the Registrable Securities that the Company shall have been requested to
register shall, as of the date of the request, have a Market Value (as defined
below) of less than $30 million or represent all of the Ordinary Shares then
held in the aggregate by the GE Parties; or (iii) any registration during the
pendency of any Blackout Period (as hereinafter defined). A registration of
Registrable Securities under this Section 3.1(3) is referred to herein as an
"Initial Demand Registration". The Company shall use its reasonable best efforts
to cause each Initial Demand Registration Statement to be declared effective by
the Commission as soon as reasonably practicable after the filing thereof.
Notwithstanding anything herein to the contrary, in connection with any Initial
Demand Registration Statement after the first Initial Demand Registration
Statement, all reasonable costs and expenses incurred in connection with any
registration, filing and offering of Registrable Securities pursuant to this
Section 3.1(3), including (without limitation) all reasonable registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and all reasonable costs incurred in
connection with the preparation of the Immediate Registration Statement, shall
be paid and borne by GE and GE shall promptly reimburse the Company for any such
costs or expenses incurred by the Company or any of its Affiliates; provided,
however, that if any securities other than Registrable Securities are registered
on any Initial Demand Registration Statement, a pro rata share of all costs
shall be allocated to such other securities and shall not be the responsibility
of GE.
6
(4) Tax Demand Registration Request. If at any time GE becomes
entitled to the registration rights set forth in Section 16(c) of the Tax
Matters Agreement (the "Tax Agreement"), dated as of September 25, 1998, among
GE Americom, the Company, Spacenet and the Spacenet Subsidiaries (as defined in
the Tax Agreement), then upon receipt of a written request from GE (the "Tax
Demand Notice"), the Company shall (subject to Section 3.4 below) use its
reasonable best efforts to prepare and cause to be filed with the Commission a
registration statement (the "Tax Demand Registration Statement") relating to the
offer and sale by Holders of solely up to such number of Registrable Securities
(the "Tax Demand Shares"), the sale of all of which Tax Demand Shares by such
Holders will reasonably be expected in the opinion of a nationally-recognized
investment bank (which may be the managing underwriter) to result in net
proceeds to the Holders in an amount sufficient to pay (x) any Tax (as defined
in the Tax Agreement) pursuant to Section 367 of the Code (as defined in the Tax
Agreement) (including, pursuant to the GE Americom GRA (as defined in the Tax
Agreement)) or Section 368 of the Code to which GE may be subject as a result of
the circumstances described in such Section 16(c) and (y) any Tax paid by GE to
any Taxing Authority (as defined in the Tax Agreement) in connection with or
relating to any sale by GE of such Tax Demand Shares (a "Tax Demand
Registration"). Tax Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement (provided, however, that to the extent that a
Tax Demand Registration is to be effected pursuant to an Underwritten Offering,
the Company shall include in the Short-Form Registration any additional
disclosure as reasonably requested by the managing underwriters (which
additional disclosure is reasonably customary in the reasonable opinion of such
managing underwriters to be included in underwritten offerings by similarly
situated companies; and, provided, further, that the Company shall only be
required to include such additional disclosure to the extent that the inclusion
of such additional disclosure does not require unreasonable investments of time
by management of the Company). Subject to the limitations set forth in the
second preceding sentence, the Tax Demand Notice shall specify such number of
Registrable Securities that the Holders request be included in the Tax Demand
Registration Statement. Notwithstanding the foregoing, the Company shall not be
required to effect: (i) any registration if the Tax Demand Shares that the
Company shall have been requested to register shall, as of the date of the
request, represent less than one percent (1%) of the outstanding Ordinary Shares
or (ii) more than one Tax Demand Registration Statement for all Holders; and the
Company shall be entitled to delay any Tax Demand Registration during the
pendency of any Blackout Period (as hereinafter defined). The Company shall use
its reasonable best efforts to cause such Tax Demand Registration Statement to
be declared effective by the Commission as soon as reasonably practicable after
the filing thereof. Notwithstanding anything herein to the contrary, in
connection with any Tax Demand Registration Statement, (q) all reasonable costs
and expenses incurred in connection with any registration, filing and offering
of Registrable Securities pursuant to this Section 3.1(4), including (without
limitation) all
7
reasonable registration, filing and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company and all reasonable costs
incurred in connection with the preparation of the Tax Demand Registration
Statement, shall be paid and borne by GE and GE shall promptly reimburse the
Company for any such costs or expenses incurred by the Company or any of its
Affiliates and (r) all sections of the Tax Demand Registration Statement
relating to the transfer of securities thereunder, including any "plan of
distribution" or similar section and any section relating to the selling
shareholders, shall be prepared by GE; provided, however, that if any securities
other than Registrable Securities are registered on any Tax Demand Registration
Statement, a pro rata share of all costs shall be allocated to such other
securities and shall not be the responsibility of GE.
3.2 Registration Upon Demand
(1) At any time after the third anniversary of this Agreement, each of
one or more Holders of Registrable Securities may make a written demand (an
"Ordinary Demand Notice") that the Company file with the Commission a
registration statement to effect the registration (an "Ordinary Demand
Registration," and collectively with an Initial Demand Registration, a
Contingent Demand Registration and a Tax Demand Registration, each a "Demand
Registration") of all or part of such Holders' Registrable Securities (as
applicable, an "Ordinary Demand Registration Statement," and collectively with
any Initial Demand Registration Statement, a Contingent Demand Registration
Statement and a Tax Demand Registration Statement, each a "Demand Registration
Statement"). Ordinary Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement; provided, however, that to the extent that an
Ordinary Demand Registration is to be effected pursuant to an Underwritten
Offering, the Company shall include in the Short-Form Registration any
additional disclosure as reasonably requested by the managing underwriters
(which additional disclosure is reasonably customary in the reasonable opinion
of such managing underwriters to be included in underwritten offerings by
similarly situated companies); and, provided, further, that following the first
two Ordinary Demand Registrations to be effected pursuant to an Underwritten
Offering, the Company shall only be required to include such additional
disclosure to the extent that the Holders of the relevant Registrable Securities
bear and pay all reasonable costs and expenses incurred in connection with such
registration, filing and offering of Registrable Securities pursuant to this
Section 3.2(1), including (without limitation) all reasonable registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and all reasonable costs incurred in
connection with the preparation of such Ordinary Demand Registration Statement.
Such Ordinary Demand Notice shall specify in writing the intended method of
distribution of such Registrable Securities (which method of distribution may
include an Underwritten Offering). Upon receipt of a valid Ordinary Demand
Notice for an Ordinary Demand Registration, the Company shall use its reasonable
8
best efforts to register under the Securities Act as soon as reasonably
practicable the Registrable Securities which Holders have requested the Company
to register in accordance with this Section 3.2, all to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered. Notwithstanding
the foregoing, the Company shall not be required to effect: (i) any registration
if the Registrable Securities that the Company shall have been requested to
register shall, as of the date of the request, have a Market Value (as defined
below) of less than $30 million or represent all of the Ordinary Shares then
held in the aggregate by the GE Parties; or (ii) any registration during the
pendency of any Blackout Period. For purposes of this Agreement, "Market Price"
shall mean the average of the closing price for the Ordinary Shares on the
principal securities exchange or other market on which the Ordinary Shares are
then traded or quoted for the ten trading days preceding the date of the
Ordinary Demand Notice.
(2) Notwithstanding anything to the contrary in this Agreement, the
Company shall not be required to file a Demand Registration Statement relating
to any Holder's request under Section 3.1(2), 3.1(3), 3.1(4) or 3.2(1) if the
Company has commenced the preparation of, or is in the midst of, an offering of
any securities of the Company pursuant to a registration statement under the
Securities Act or in reliance on Rule 144A or any similar exemption from the
registration requirements of the Securities Act. Any participation of the GE
Parties in any such offering shall be solely on a piggy-back basis pursuant to
the terms of Section 3.3 hereof and not on a demand basis under Section 3.1(2),
Section 3.1(3), Section 3.1(4) or Section 3.2(1).
(3) A registration requested pursuant to Section 3.1(2), 3.1(3),
3.1(4) or 3.2(1) hereof shall not be deemed to have been effected (i) if a
Demand Registration Statement with respect thereto has not been declared
effective by the Commission, (ii) if after it has become effective, such
registration is materially interfered with by any stop order, injunction or
similar order or requirement of the Commission or other governmental agency or
court for any reason not attributable to any of the Holders and has not
thereafter become effective, or (iii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of a Holder.
(4) Subject to Section 3.8 below, the Company may, at its option,
allow other persons or entities having registration rights to include their
Ordinary Shares, or elect to include authorized but unissued Ordinary Shares to
be sold by the Company, in a registration to be effected pursuant to Section
3.1(1), 3.1(2), 3.1(3), 3.1(4) or 3.2(1).
9
3.3 "Piggy-Back" Registrations
1. If, at any time after the earlier to occur of (x) the third
anniversary of this Agreement and (y) the termination of the obligations of the
GE Parties (as defined in the Shareholders Agreement) under clause (1) of
Section 3.1 of the Shareholders Agreement in accordance with the terms of such
Section 3.1, the Company proposes to register any securities under the
Securities Act in connection with any offering of its securities (other than a
registration statement on Form S-8 or Form F-4, or their successors, or any
other form for a similar limited purpose, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of
another corporation or in connection with any similar transaction), whether or
not for its own account, the Company shall furnish reasonably prompt written
notice to GE and any Bulk Transferees (provided that GE has notified the Company
of such Person's status as a Bulk Transferee) of its intention to effect such
registration and the intended method of distribution in connection therewith.
Upon the written request of a Holder made to the Company within five (5)
calendar days after the receipt of such notice by the Company, the Company shall
include in such registration the requested number of the Holder's Registrable
Securities (each, a "Piggy-Back Registration"); provided, however, that:
a. if, at any time after giving such written notice of its
intention to register any securities and prior to the effective date
of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable
Securities who shall have made a request for registration as
hereinabove provided and thereupon the Company shall be relieved of
its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
expenses in connection therewith, as provided in Section 3.7); and
b. if such registration involves an Underwritten Offering, all
Holders of Registrable Securities requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions
as apply to the Company or any other holders of Ordinary Shares being
sold pursuant to such registration.
2. Nothing in this Section 3.3 shall create any liability on the part
of the Company or any other Person to the Holders if the Company or any other
Person should, for any reason, decide not to file a registration statement
proposed to be filed pursuant to Section 3.3(1) (any such registration
statement, a "Piggy-Back Registration Statement," and, collectively with a
Demand Registration Statement and an Immediate Registration Statement, each a
"Registration
10
Statement") or to withdraw such Piggy-Back Registration Statement subsequent to
its filing (except for the Company's obligation to pay the expenses in
connection therewith as provided in Section 3.7), regardless of any action
whatsoever that a Holder may have taken, whether as a result of the issuance by
the Company of any notice under Section 3.3(1) or otherwise.
3. A request to include Registrable Securities in a proposed
Underwritten Offering pursuant to Section 3.3(1) shall not be deemed to be a
Demand Registration pursuant to Section 3.1(2) or Section 3.1(3).
3.4 Blackout Periods for Holders. If the Company reasonably and in good
faith determines that (i) the filing of a Registration Statement or the
compliance by the Company with its disclosure obligations in connection with a
Registration Statement would require the disclosure of material information that
the Company has a bona fide and significant business purpose for preserving as
confidential or (ii) such registration would be likely to have a significant and
adverse effect on any proposal or plan by the Company to engage in any material
financing transaction, acquisition of securities or assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction and the Company promptly gives the Holders written notice of
such determination following their request to register any Registrable
Securities, the Company may delay the filing of a Registration Statement and
shall not be required to maintain the effectiveness thereof or amend or
supplement a Registration Statement for a period expiring upon the earlier to
occur of (A) the date on which such material information is disclosed to the
public or ceases to be material, in the case of clause (i), (B) the date on
which such transaction is completed or abandoned, in the case of clause (ii), or
(C) sixty (60) calendar days after the Company makes such good faith
determination, in the case of either clauses (i) or (ii) (a "Blackout Period");
provided, that (x) during any period of three hundred and sixty-five (365)
consecutive days the aggregate length of all Blackout Periods may not exceed a
total of one hundred and eighty (180) days and (y) if any such event occurs
prior to the effectiveness of the relevant Registration Statement, the Holders
of Registrable Securities, if any, initiating the request for such registration
will be entitled to withdraw such request, and if such request is withdrawn such
registration will not count as one of the permitted registrations under Section
3.1 or 3.2, as applicable. The period referred to in Section 3.5(1) shall be
extended by the length of any Blackout Period occurring during such periods. The
Company shall promptly notify each Holder of the commencement and expiration or
earlier termination of any Blackout Period occurring during the pendency of any
registration hereunder in which such Holder is participating.
3.5 Obligations of the Company. Except as otherwise provided herein
(including, but not limited to, pursuant to Section 3.1(1), Section 3.1(3) and
Section 3.1(4) above), whenever the Company is required to effect the
registration of any
11
Registrable Securities under Section 3.1, 3.2 or 3.3, as applicable, the Company
shall, as soon as reasonably practicable:
1. Prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities on a form selected by the Company (except
as otherwise set forth above) and use its reasonable best efforts to cause such
Registration Statement to become effective and (except as otherwise set forth
herein) to keep such Registration Statement effective until the earlier of (i)
completion of the offering to which the Registration Statement relates or (ii)
forty (40) calendar days from the date of effectiveness (or such longer period
as is required in order to complete any distribution pursuant to a customary
over-allotment option granted to the underwriters in the underwriting agreement
relating to an Underwritten Offering); provided, however, that before filing
such Registration Statement or any amendments thereto, the Company will furnish
to the counsel selected by the Holders of Registrable Securities which are to be
included in such registration copies of all such documents proposed to be filed
and shall not file any such documents to which such counsel reasonably and
promptly objects prior to the filing thereof solely to the extent that such
objection relates to information (x) included in such document relating to the
Holders or (y) as to which the Company fails to certify in writing (in response
to a reasonable written request of the relevant Holders) that such information
will be subject to the Company's indemnification obligation set forth in Section
3.10 below, and provided, further, that the Company may discontinue any
registration of its securities that is being effected pursuant to Section 3.1,
3.2 or 3.3 at any time prior to the effective date of the Registration Statement
relating thereto. Notwithstanding the foregoing, nothing contained herein shall
require the Company to include in any Registration Statement any material
nonpublic information known to any Holder, the failure of which to disclose
prior to any sale of Registrable Securities by such Holder would result in a
violation of any United States federal or state securities laws by such Holder.
2. Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of applicable law with respect to the disposition of all securities
covered by such Registration Statement.
3. Furnish to the Holders of Registrable Securities registering such
securities such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of applicable law, and such
other documents as each such Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by it.
4. Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under state blue sky laws in
any
12
jurisdictions in the United States in which such registration and qualification
is reasonably requested by any Holder; provided, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
jurisdictions or to subject itself to taxation in any such jurisdiction.
5. In the event of any Underwritten Offering, enter into and perform
its obligations under an underwriting agreement, in form and substance
reasonably satisfactory to the Company, with the managing underwriter of such
offering.
6. Promptly notify the Holders: (i) when the Registration Statement or
any post-effective amendment to the Registration Statement has become effective;
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
by any Person for that purpose; and (iii) of the receipt by the Company of any
written notification with respect to the suspension of the qualification of any
Registrable Securities for sale in any jurisdiction or the initiation or written
threat of any proceeding for such purpose.
7. Notify the Holders, at any time when a prospectus relating thereto
is required to be delivered under applicable law, of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Any Holders shall cease using such prospectus immediately upon receipt of notice
from the Company to that effect. If so requested by the Company, each Holder
promptly shall return to the Company any copies of any prospectus in its
possession other than permanent file copies) that contains an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing. Subject to Section 3.4 above, at the request of
any such Holder, the Company shall promptly prepare and furnish to such Holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
8. If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, and if such Holder
reasonably believes it is or may be deemed to be a control Person in relation
to, or an Affiliate of, the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance reasonably
satisfactory
13
to such Holder, to the effect that the holding by such Holder is not be
construed as a recommendation by such Holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not, in the opinion of both counsel to the Company and such Holder,
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder.
9. Only in the case of an Underwritten Offering, and to the extent
reasonably requested by the managing underwriters of such Underwritten Offering,
use its reasonable best efforts to cause to be furnished to the Holders (x) a
signed opinion from counsel to the Company addressed to the underwriters, and
(y) a "comfort" letter from the Company's independent certified public
accounting firm, covering such matters of the type customarily covered by such
opinions and "comfort" letters as the lead managing underwriter may reasonably
request.
10. Use reasonable best efforts to cause the transfer agent to remove
restrictive legends on certificates representing the securities covered by such
Registration Statement, as appropriate and to the extent such removal is
permitted by applicable law and any applicable agreements.
11. Use reasonable best efforts to have the securities covered by such
Registration Statement listed on the same quotation system or market, if any, as
the Ordinary Shares.
12. Execute and deliver all instruments and documents (including in an
Underwritten Offering an underwriting agreement in reasonable and customary
form) and take such other reasonable and customary actions as the holders of
Registrable Securities requesting registration may reasonably request in order
to effect an Underwritten Offering of such Registrable Securities; provided,
however, that notwithstanding anything herein to the contrary, the Company shall
not be obligated to devote any management efforts to supporting any registration
for any Holder of Registrable Securities hereunder other than a customary "road
show" for one Underwritten Offering.
3.6 Furnish Information; Hold-Back Agreement.
1. It shall be a condition precedent to the obligation of the Company
to include any Registrable Securities of any Holder in a Registration Statement
pursuant to Section 3.1, 3.2 or 3.3, as applicable, that the Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
Registrable Securities as shall be required to effect the registration of the
Registrable Securities held by such Holder. Any such information, or any
comments on any such information included in a draft of a Registration Statement
provided to a Holder for its comment, shall be
14
provided to the Company within any reasonable time period requested by the
Company.
2. Each Holder of Registrable Securities agrees, whether or not such
Holder's Registrable Securities are included in any such registration, not to
effect any sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, or of any security
convertible into or exchangeable or exercisable for any Registrable Securities
(other than as part of such offering), (x) without the consent of the Company in
the case of a non-underwritten offering for a period commencing three calendar
days before and ending thirty calendar days after, or (y) without the consent of
the managing underwriter in the case of an Underwritten Offering, during a
period commencing seven calendar days before and ending 90 calendar days after
(or, in each case, ending after such lesser number of calendar days as the
Company or the lead managing underwriter, as applicable, shall designate for
other parties subject to a similar "hold-back" obligation), in each case, after
the effective date of any offering of the Company's securities.
3. Each Holder shall notify the Company, at any time when a prospectus
is required to be delivered under applicable law, of the happening of any event
as a result of which the prospectus included in the applicable Registration
Statement, as then in effect, in each case only with respect to information
provided by such Holder, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing. All Holders shall immediately upon the happening of any such event
cease using such prospectus. If so requested by the Company, each Holder
promptly shall return to the Company any copies of any prospectus in its
possession (other than permanent file copies) that contains an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
4. It is understood that in any Underwritten Offering in addition to
any Ordinary Shares (the "initial shares") the underwriters have committed to
purchase, the underwriting agreement may grant the underwriters an option to
purchase up to a number of additional authorized but unissued Ordinary Shares
(the "option shares") equal to 15% of the initial shares (or such other maximum
amount as the NASD may then permit), solely to cover over-allotments. Ordinary
Shares proposed to be sold by the Company and the other sellers shall be
allocated between initial shares and option shares as agreed. The number of
initial shares and option shares to be sold by requesting Holders shall be
allocated pro rata among all such Holders on the basis of the relative number of
shares of Registrable Securities each such Holder has requested to be included
in such registration.
15
3.7 Expenses of Registration. Except as otherwise set forth herein
(including, but not limited to, pursuant to Section 3.1(1), Section 3.1(3),
Section 3.1(4) and Section 3.2(1) above), the Company shall bear and pay all
reasonable expenses incurred in connection with any registration, filing or
qualification of Registrable Securities pursuant to Section 3.1, 3.2 or 3.3, as
applicable, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, but excluding underwriting discounts and commissions
and stock transfer taxes relating to the Registrable Securities. Notwithstanding
the foregoing, only reasonable fees and disbursements of one counsel to all
Holders up to a maximum of $10,000 per registration shall be required to be paid
and borne by the Company. Any such counsel for the Holders shall be selected by
the holders of a majority of the Registrable Securities being registered.
3.8 Underwriting Requirements; Cut-Backs. In connection with any
Underwritten Offering of a Holder's Registrable Securities, (1) in the case of
any Demand Registration, the Holders of a majority of the Registrable Securities
to be registered shall be permitted to select the lead managing underwriter,
subject to the reasonable approval of the Company, or, in the case of a
Piggy-Back Registration, the Holders must accept the underwriters selected by
the Company, and (2) the Company shall be required under Section 3.1, 3.2 or 3.3
to register only such quantity of Registrable Securities as the lead managing
underwriter determines, in its sole discretion, will not interfere with the
successful marketing of the offering. To the extent that (x) the lead managing
underwriter advises the Company (in the case of an Underwritten Offering) or (y)
the Holders selling Registrable Securities in such registration and the Company
reasonably agree (in the case of a non-Underwritten Offering) that the
registration of all of the Ordinary Shares sought to be registered will
interfere with the successful marketing of the offering, in the case of a
registration pursuant to Section 3.1(1), 3.1(2), 3.1(3), 3.1(4) or 3.2(1), the
Ordinary Shares to be included shall first be apportioned among the Holders on a
pro rata basis (based on the number of Ordinary Shares proposed to be registered
by each). If the Holders are permitted to register all of the Registrable
Securities that they requested be registered, in connection with such offering,
any remaining Ordinary Shares to be included in such registration shall be
allocated among the Company and such other holders of Ordinary Shares whose
Ordinary Shares are to be included in such Registration Statement pursuant to
Section 3.2(4) above in such proportion as they shall agree upon. In the case of
a registration pursuant to Section 3.3, subject to the last paragraph of Section
3.3(2), as applicable, the Ordinary Shares to be included therein shall be
apportioned as follows: (i) first, the Company and any holders of securities of
the Company (other than the Holders) exercising any demand registration right
granted to such holders shall be entitled to register all Ordinary Shares that
the Company or such other holders propose to sell for their own account, in such
proportion as they shall agree upon; and (ii) second, the Holders shall be
entitled to register, on a pro rata basis together with any other holder of
securities of the Company exercising any piggy-
16
back registration rights (based on the number of Ordinary Shares proposed to be
registered by each), up to that number of Registrable Securities that is equal
to the remaining number of Ordinary Shares that (x) the lead managing
underwriter advises (in the case of an Underwritten Offering) or (y) any holders
of Ordinary Shares (including any Holders) participating in such registration
and the Company reasonably agree (in the case of a non-Underwritten Offering)
may be registered in connection with such offering without interfering with the
successful marketing thereof.
3.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
3.10 Indemnification. In the event any Registrable Securities are
included in a Registration Statement under Section 3.1, 3.2 or 3.3, as
applicable:
1. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder and each Person, if any, who controls such Holder
within the meaning of the Securities Act and the Securities Exchange Act of
1934, as amended (the "1934 Act"), and their respective directors, officers,
partners, employees and affiliates (each, an "Indemnified Person"), against any
losses, claims, damages, or liabilities to which they may become subject insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (collectively, a "Violation") (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement, including any final prospectus contained therein or any
amendments or supplements thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, and the Company will pay to each Indemnified Person any
reasonable legal or other expenses incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that the indemnity agreement contained in this Section 3.10(1) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the written consent
of the Company, nor shall the Company be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
information furnished by any Holder for use in connection with such registration
(including, but not limited to, pursuant to Section 3.1(1) or 3.1(4) above) or
is caused by any failure by any Holder to deliver a prospectus or preliminary
prospectus (or amendment or supplement thereto) as and when required under the
Securities Act after such prospectus has been timely furnished by the Company;
and provided, further, that the Company will not be liable hereunder (A) in the
case of any Underwritten Offering, to any Person who participates as an
underwriter in the offering or sale of
17
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, or (B) in the case of any
offering other than an Underwritten Offering, to any seller of Registrable
Securities covered by such Registration Statement or any other Person, if any,
who controls such seller within the meaning of the Securities Act, under the
indemnity agreement in this Section 3.10(1) with respect to any preliminary
prospectus or final prospectus or final prospectus as amended or supplemented,
as the case may be, to the extent that any such loss, claim, damage or liability
of such underwriter or controlling Person (or seller or controlling Person, as
the case may be) results from the fact that such underwriter (or seller, as the
case may be) sold Registrable Securities to a Person to whom therewas not sent
or given, at or prior to the written confirmation of such sale, a copy of the
preliminary prospectus or of the final prospectus or of the final prospectus as
then amended or supplemented, whichever is most recent, if the Company has
previously furnished copies thereof to such underwriter (or seller, as the case
may be) if the relevant material misstatement or omission or alleged material
misstatement or omission giving rise to such loss, claim, damage or liability
was cured in such preliminary prospectus or final prospectus, as so amended or
supplemented, as the case may be. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller,
director, officer, employee, agent, underwriter or controlling Person, and shall
survive the transfer of such securities by such seller.
2. To the extent permitted by law, each Holder, jointly and
severally, will indemnify and hold harmless the Company, each of its directors,
each of its officers, who has signed the Registration Statement, and each
Person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any losses, claims, damages or liabilities (joint
or several) to which any of the foregoing Persons may become subject, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation is caused (x) by any untrue statement or
alleged untrue statement contained in, or by any omission or alleged omission
from, information furnished to the Company by any Holder for use in any such
Registration Statement or prospectus (including, but not limited to, pursuant to
Section 3.1(1) or 3.1(4) above) or (y) any failure by the Holder to deliver a
prospectus or preliminary prospectus (or amendment or supplement thereto) as and
when required under the Securities Act after such prospectus has been timely
furnished by the Company. Such Holder will pay any reasonable legal or other
expenses incurred by any Indemnified Person pursuant to this Section 3.10(2) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, that the indemnity agreement contained in this
Section 3.10(2) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
written consent of the Holder. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
18
Company or any such director, officer or controlling Person and shall survive
the transfer of such securities by such seller.
3. Promptly after receipt by an indemnified party under this
Section 3.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 3.10, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the indemnifying parties; provided, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate (in the written reasonable opinion of
counsel to the indemnifying party) due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
3.10.
4. To the extent that a reasonably similar undertaking is not
included in any relevant underwriting agreement or other relevant contractual
agreement, the Company may require, as a condition to including any Registrable
Securities in any Registration Statement filed in accordance with Section 3.1,
3.2 or 3.3, as applicable, hereof, that the Company shall have received an
undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 3.10(2) hereof)
the Company and its directors and officers and each other Person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary, final or summary prospectus contained
therein, or any such amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by or on behalf of such
seller or underwriter for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement. 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 or controlling
Person and shall survive the transfer of such securities by such seller.
19
5. To the extent the indemnification provided for in this Section
3.10 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by each
of the Company, the Holders and any underwriters from the offering of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, the Holders and the any underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand, and the Holders and any underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (after
deducting underwriting discounts and commissions, but before deducting expenses)
received by the Company and the Holders (as applicable) and the total
underwriting discounts and commissions received by any underwriters. The
relative fault of the Company, the Holders and any underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Holders or
any underwriters, as applicable, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just and equitable if
contribution pursuant to this clause (e) were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this clause (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in this clause (e) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. 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 who was not guilty of such
fraudulent misrepresentation.
6. The obligations of the Company and the Holders under this
Section 3.10 shall survive the completion of any offering of Registrable
Securities under a Registration Statement pursuant to Section 3.1, 3.2 or 3.3,
as applicable.
20
4. Miscellaneous.
4.1 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties hereto; provided that no rights or obligations
of GE hereunder may be transferred or assigned other than in connection with a
transfer of GE Shares to an Affiliate of GE or to a Bulk Transferee, which
transfer is made in compliance with the terms of this Agreement and the
Shareholders Agreement. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. Nothing contained herein shall
be construed as permitting any transfer of any securities of the Company in
violation of any applicable law or agreement, including but not limited to the
terms of the Shareholders Agreement.
4.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the conflict of laws provisions thereof. Each of the Company and the Holders
hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State court
sitting in New York City for purposes of all legal proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby. Each of the
Company and the Holders irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
4.3 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
4.4 Captions and Headings. The captions and headings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. Unless otherwise provided, any notice or other
communication required or permitted to be given or effected under this Agreement
shall be in writing and shall be deemed effective upon personal or facsimile
delivery to the party to be notified or one business day after deposit with an
internationally recognized courier service, delivery fees prepaid, and addressed
to the party to be notified at the following respective addresses, or at such
other addresses as may be designated by written notice; provided, that any
notice of change of address shall be deemed effective only upon receipt.
21
If to the Company:
c/o Gilat Satellite Networks Ltd.
Gilat House
Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx
Xxxxx Xxxxx 00000
Xxxxxx
Fax: 000-0-000-0000
Attention: General Counsel
with a copy to:
Kleinhendler & Xxxxxx
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
Fax: 000-0-000-0000
Attention: Xxxx Xxxxxxxxxxxx, Adv.
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
If to GE or any Holder:
c/o GE American Communications, Inc.
0 Xxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Fax: 000-000-0000
Attention: General Counsel
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxxx, Esq.
4.6 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
22
may not be given, unless the Company has obtained written consent of the Holders
of at least a majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided,
however, that no amendment, modification, supplement, waiver or consent to the
departure with respect to the provisions of Section 3.10 hereof shall be
effective as against any Person unless consented to in writing by such Person.
4.7 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
4.8 Entire Agreement. Other than applicable provisions of the
Shareholders Agreement, this Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter. Other than as set forth in the Shareholders Agreement, there are
no restrictions, promises, representations, warranties, agreements or
undertakings of any party hereto with respect to the matters contemplated
hereby, other than those set forth herein or made hereunder.
23
IN WITNESS WHEREOF, the parties, each by its duly authorized
signatory, have executed this Agreement as of the date first above written.
GENERAL ELECTRIC COMPANY
By /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
GE AMERICAN COMMUNICATIONS, INC.
By /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
GENERAL ELECTRIC FINANCE HOLDING GMBH
By /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Attorney-in-Fact
GENERAL ELECTRIC PLASTICS B.V.
By /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Attorney-in-Fact
GILAT SATELLITE NETWORKS LTD.
By /s/ Xxxx Gat
------------------------
Name: Xxxx Gat
Title: Chief Executive Officer
24
