EXHIBIT 10.14
SHAREHOLDER'S AGREEMENT
Dated as of August 13, 1997
by and between
XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY
and
XXXX LABORATORIES, INC.
SHAREHOLDER'S AGREEMENT
SHAREHOLDER'S AGREEMENT, dated as of August 13, 1997, by and
between Xxxxxx Xxxxxxxx Public Limited Company, a public limited company
organized and existing under the laws of Ireland (the "Company"), and Xxxx
Laboratories, Inc., a New York corporation ("Xxxx").
R E C I T A L S :
A. Pursuant to the Stock and Warrant Purchase Agreement, dated
as of July 8, 1997, by and between the Company and Xxxx (the "Purchase
Agreement"), Xxxx will purchase 250,000 American Depository Shares ("ADSs"),
each ADS representing one Ordinary Share, par value $.05, of the Company
("Ordinary Share"), and the Company will grant to Xxxx a Warrant to purchase
250,000 Ordinary Shares (the "Xxxx Warrants"), represented by ADSs.
B. The Company and Xxxx desire to enter into this
Shareholders' Agreement for the purpose of regulating certain aspects of Xxxx
relationships with regard to the Company and of providing for certain matters
relating to the Ordinary Shares and the rights and remedies of Investors.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and for other good and valuable consideration, the parties
hereto agree as follows:
ARTICLE I
1.1 Definitions
Capitalized terms used herein without definition shall have
the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"ADRs" shall mean American Depositary Receipts, evidencing
ADSs.
"ADSs" shall mean American Depositary Shares, evidenced by
ADRs, each American Depositary Share representing one Ordinary Share.
"Advice" shall have the meaning set forth in the last
paragraph of Section 4.3 hereof.
"Affiliate" of any specified person shall mean any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms of "affiliated," "controlling" and
"controlled" have meanings correlative to the foregoing.
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"Agreement" shall mean this Shareholder's Agreement, as the
same may be amended, supplemented or modified from time to time in accordance
with the terms hereof.
"Xxxx Warrants" shall mean the warrants issued to Xxxx
pursuant to the Purchase Agreement.
"Business Day" shall mean any day except Saturday, Sunday and
any day which shall be a legal holiday in the United States or a day on which
banking institutions in the state of New York generally are authorized or
required by law or other government actions to close.
"Capital Stock" means the Ordinary Shares, as represented by
ADSs, and any securities into or for which the Ordinary Shares, as represented
by ADSs, are convertible or exchangeable.
"Change of Control" means, as to any Person, a change, shift
or transfer of control with respect to such Person (including any change in the
control of any entity controlling such Person).
"class" means all of the Ordinary Shares considered as a
whole.
"Company" shall mean Xxxxxx Xxxxxxxx Public Limited Company, a
public limited company organized and existing under the laws of Ireland.
"Elan Warrants" shall mean the warrants issued pursuant to the
Warrant Agreement dated as of October 17, 1994, between the Company and Elan
Corporation, plc.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated pursuant
thereto.
"Exchange Holders" shall mean the holders of the ADSs of the
Company pursuant to the Exchange Agreement dated as of June 15, 1997 and the
securities issuable or issued upon the exercise of the warrant contemplated by
such Exchange Agreement.
"Holders" shall mean any Investors owning or having the right
to acquire Registrable Securities.
"Immediate Family Members" of a natural Person means the
spouse and lineal descendants (including legally adopted descendants) of such
Person.
"Indemnified Party" shall have the meaning set forth in
Section 5.1(c) hereof.
"Indemnifying Party" shall have the meaning set forth in
Section 5.1(c) hereof.
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"Investor Warrants" shall have the meaning set forth in the
Purchase Agreement dated as of October 17, 1994, among the Company and the
purchasers who are signatories thereto.
"Investors" means Xxxx and any Permitted Transferees of Xxxx
who are party (including by joinder) to this Agreement.
"Losses" shall have the meaning set forth in Section 5.1(a)
hereof.
"Xxxxxxxxxx Shares" shall mean the securities issuable or
issued upon exercise of the warrant granted to Xxxxxxxxxx Securities pursuant to
the Warrant Agreement dated as of October 17, 1994, between the Company and
Xxxxxxxxxx Securities.
"1994 Holders" shall mean the holders of ADSs of the Company
purchased pursuant to the Purchase Agreement dated as of October 17, 1994, among
the Company and the purchasers who are signatories thereto.
"Permitted Transferee" means any transferee of Capital Stock
acquired from any Investor, in a transaction that is not prohibited pursuant to
Section 2.1
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Proceeding" shall mean an action, claim, suit or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" shall mean the prospectus included in a
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A promulgated
pursuant to the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Public Stock" means any shares of Capital Stock of any class
that is listed on a national securities exchange or that has been accepted for
inclusion in the National Association of Securities Dealers Automated Quotation
System or any similar national over-the-counter market.
"Registrable Securities" shall mean the ADSs purchased by the
Investors pursuant to the Purchase Agreement and the securities issued or
issuable upon exercise of the Xxxx Warrants and, in each case, any securities
issued or issuable with respect to such ADSs or
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securities by way of a stock dividend or stock split or in connection with a
combination of securities, recapitalization, merger, consolidation or other
reorganization upon original issuance thereof, and at all times subsequent
thereto, until, in the case of any such ADS or security, (A) it has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with a Registration Statement covering it, (B) subject to Section 5.3
hereof, it is sold by the Holder thereof pursuant to Rule 144 or, if available,
Rule 144A (or any similar provisions then in effect), (C) subject to Section 5.3
hereof, it shall have been otherwise transferred and a new certificate or
certificates for such security not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of such
security shall not require registration or qualification of such security under
the Securities Act or (D) it ceases to be outstanding.
"Registration Statement" shall mean any registration statement
contemplated by Section 4.1 hereof, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" shall mean Rule 144 promulgated by the SEC pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC having substantially the
same effect as such Rule.
"Rule 144A" shall mean Rule 144A promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Special Counsel" shall mean any special counsel to the
Holders of Registrable Securities, for which Holders of Registrable Securities
will be reimbursed pursuant to Section 4.3.
"Total Voting Power" means the total combined voting power in
the election of directors of all shares of Capital Stock then outstanding.
"Transfer" means any direct or indirect transfer, sale,
conveyance, pledge, hypothecation or other disposition, including, without
limitation, any of the foregoing which occurs by virtue of any Change of
Control.
"underwritten offering" shall mean a registration in
connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective registration statement.
"Xxxxxx-Xxxxxxx Warrant" shall mean the warrant issued to
Xxxxxx-Xxxxxxx Company pursuant to the Warrant Purchase Agreement dated as of
March 28, 1996, between the Company and Xxxxxx-Xxxxxxx Company.
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ARTICLE II
2.1 Transfers by Investors. (a) No Investor shall Transfer
any Capital Stock now or hereafter owned by such Investor except as expressly
permitted in this Section 2.1.
(b) Without the consent of the Company or any other Investor
and without first offering such Capital Stock to the Company or any other
Investor, each Investor, at any time, may (i) Transfer to any Person any Capital
Stock which constitutes Public Stock and (ii) without regard to whether such
Capital Stock is Public Stock at such time, (a) in the case of an Investor that
is not a natural Person, Transfer any Capital Stock which it may now or
hereafter own to any Affiliate of such Investor which is not a natural Person,
and (b) in the case of an Investor that is a natural Person, Transfer any
Capital Stock to any Immediate Family Member or any trust or custodian account
for the sole benefit of such Investor or his Immediate Family Members and in
accordance with applicable laws of descent and distribution; provided, however,
that the transferee of any such Investor pursuant to clauses (a) or (b) above
shall join in this Agreement by the execution of a joinder agreement in the form
attached hereto as Exhibit A.
(c) In addition to Transfers permitted by subsection (b)
above, (i) an Investor may Transfer any Capital Stock only with the prior
approval of the Board of Directors of the Company by resolution of a majority of
the whole board (which approval may be withheld or given at the discretion of
the Board of Directors); and (ii) an Investor may make any Transfer required or
permitted to be made by such Investor pursuant to the provisions of Section 2.2.
2.2 Transfers to Comply with Laws. Notwithstanding any
contrary provision herein, no Investor may Transfer or offer to Transfer any
shares of Capital Stock (or solicit any offers to Transfer any shares of Capital
Stock), except in compliance with the Securities Act and in compliance with any
applicable state securities laws and rules and regulations promulgated
thereunder.
ARTICLE III
3.1 Voting and Election of Directors and Approval of
Contractual Arrangements. (a) From and after the date hereof and until such time
that Investors hold less than 51% of the Company's Capital Stock purchased
pursuant to the Purchase Agreement, Xxxx shall have the right to designate and
nominate an individual (a "Xxxx Designee") for election to the Board of
Directors of the Company, which individual shall be acceptable to the Company;
and each of the Investors severally agrees that in exercising its voting rights
on the election of directors, whether or not at an annual or special meeting of
the Company and whether or not at an adjourned meeting or whether by written
consent, such Investor shall vote its shares of the Company's voting Capital
Stock for, and will take all necessary actions within its control to cause, the
nomination and the election of the Xxxx Designee to the Board of Directors of
the Company.
The initial Xxxx Designee shall be Xxxxx X. Xxxxxx. Xxxx shall
have the right to remove its designee at any time and replace any such designee.
Each Investor agrees, upon written request of Xxxx, to take any and all actions
reasonably necessary to effect the removal from the Board of Directors of the
director who is the Xxxx Designee and the appointment or
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election of another director as the Xxxx Designee to replace such director so
removed or to permit Xxxx to have the representation on the Board of Directors
of the Company contemplated by this Section 3.1.
(b) Nothing in this Section 3.1 shall be deemed to impair the
right of the Board of Directors to increase or reduce (but not below the number
of directors then in office) the size of the Company's Board of Directors in the
manner provided in the Memorandum and Articles of Association of the Company. If
approved by the vote of a majority of the whole Board of Directors, the Company
may enter into one or more agreements with holders of Capital Stock of the
Company which provide for representation of such holders on the Board of
Directors. Each Investor, upon receipt of a copy of such other agreement and
provided that the holders of Capital Stock entitled to the benefits thereof are
obligated to vote shares of Capital Stock held by them for the Xxxx Designee,
agrees to vote all shares of Capital Stock held by it for and will take all
other actions within its control to cause the nomination and election of the
directors designated by other holders of Capital Stock in accordance with such
agreements. Xxxx may, at its option, by written notice to the Company,
irrevocably waive its rights to designate a nominee for a directorship.
(c) The Company and the Investors hereby agree that all
contractual arrangements between the Company and such Investor will be subject
to approval by, or ratification of, a committee of the Board of Directors of the
Company consisting of the Chief Executive Officer of the Company and one or more
other directors unaffiliated with such Investor, as to the fairness of the terms
and conditions of such arrangements to the Company, and will be on a basis no
less favorable to the Company than could be arranged with third parties.
ARTICLE IV
4.1 Registration Rights. (a) Piggy-Back Registration Rights.
If the Company at any time proposes to file a registration statement under the
Securities Act with respect to any offering by the Company for its own account
or for the account of others of any class of security to be offered for cash
(other than (i) a registration statement on Forms X-0, X-0, X-0 or S-8, (ii) a
registration statement filed on Form F-1 or Form S-1 for an offering of capital
stock of the Company solely to any one or more of the Company's management,
employees or former employees, (iii) a registration statement filed in
connection with a transaction pursuant to Rule 145 under the Securities Act or
(iv) the first registration statement for an underwritten offering of capital
stock of the Company for its own account), then the Company shall in each case
give written notice of such proposed filing to the Holders at least thirty days
before the anticipated filing date, and such notice shall offer (a "Piggy-Back
Registration Offer") such Holders the opportunity to include any or all of the
outstanding Registrable Securities held by them in such registration statement
(a "Piggy-Back Registration") and shall set forth the intended method of
disposition of the securities proposed to be registered by the Company. Each
Holder desiring to have Registrable Securities registered under this Section
4.1(a) shall so notify the Company in writing within twenty days after the
receipt by such Holder of the written notice provided for in the preceding
sentence (which notification shall set forth the amount of Registrable
Securities for which registration is requested) and the Company will use its
best
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efforts to cause all such Registrable Securities, the Holders of which shall
have so requested the registration thereof, to be registered under the
Securities Act to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) by the Holders of the
Registrable Securities to be so registered; provided, however, that if such
registration shall be in connection with an underwritten offering and, if the
managing underwriter or underwriters of such offering, as selected by the
Company, shall advise the Company in writing that in its or their opinion the
total amount or kind of securities which the Holders, the Company and any other
persons or entities intend to include in such offering exceeds the amount which
can be sold in such offering without an adverse effect on the price, timing or
distribution of the securities offered, the Company shall be required to include
in such registration only the amount of Registrable Securities and securities of
other persons or entities, if any, which the managing underwriter or
underwriters determine, in its or their sole discretion, can be sold without an
adverse effect on the price, timing or distribution of the securities offered
(the securities so included to be apportioned as follows: (i) first, pro rata
among (A) the Exchange Holders, (B) the 1994 Holders and (C) the holders of
outstanding Ordinary Shares, or ADSs representing such Ordinary Shares, issued
or issuable upon exercise of the Investor Warrants and the Xxxxxx-Xxxxxxx
Warrant, (ii) second, pro rata among the holders of securities issued upon
exercise of the Elan Warrants, (iii) third, the Xxxxxxxxxx Shares and (iv)
fourth, pro rata among the Holders of Registrable Securities requesting Piggy-
Back Registration thereof; provided, however, that in the event that any such
request for Piggy-Back Registration is in response to a demand registration
pursuant to the Elan Warrants, then the securities so included to be apportioned
as follows: (i) first, pro rata among the holders of securities issued upon
exercise of the Elan Warrants, (ii) second, pro rata among (A) the Exchange
Holders, (B) the 1994 Holders and (C) the holders of outstanding Ordinary
Shares, or ADSs representing such Ordinary Shares, issued or issuable upon
exercise of the Investor Warrants and the Xxxxxx-Xxxxxxx Warrant, (iii) third,
the Xxxxxxxxxx Shares and (iv) fourth, the Holders of Registrable Securities
requesting Piggy-Back Registration. In the event that a registration shall be,
in whole or in part, in connection with an underwritten offering of ADSs, or
Ordinary Shares underlying such ADSs, the Company shall not be required to
include any Registrable Securities in such registration unless the Holders
requesting registration thereof agree to accept the offering on substantially
the same terms and conditions as the ADSs, or Ordinary Shares underlying such
ADSs, otherwise being sold by the Company in such underwritten offering.
Notwithstanding the foregoing, the Company shall be obligated
to make only two Piggy-Back Registration Offers and thereafter the Company shall
have no further obligation under this Section 4.1(a); provided, however, that if
any such Piggy-Back Registration in which Holders have requested inclusion of
Registrable Securities is not declared effective or if at least 50% of the
Registrable Securities of such Holders requested to be included therein are not
so included, such Piggy-Back Registration shall not constitute a Piggy-Back
Registration Offer for the purpose of this Section 4.1(a). Notwithstanding
anything to the contrary in this Section 4.1(a), the Company shall have the
right, in its sole discretion, to discontinue any registration under this
Section 4.1(a) at any time prior to the effective date of such registration if
the registration of securities for the Company's account giving rise to such
registration under this Section 4.1(a) is, in the sole discretion of the
Company, discontinued by the Company.
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(b) Demand Registration. (i) Right to Demand. At any time
after six months after the effective date of the first registration statement
for an underwritten offering of securities of the Company for its own account,
the Holders of not less than 50% of the outstanding Registrable Securities may
make a written request to the Company for registration under and in accordance
with the provisions of the Securities Act of all or part of such Registrable
Securities (a "Demand Registration"). Within ten days after receipt of any such
request, the Company will give written notice (the "Notice") of such
registration request to all Holders, and the Company will include in such
registration all outstanding Registrable Securities of such Holders with respect
to which the Company has received written requests for inclusion therein. Each
Holder desiring to have Registrable Securities registered under this Section
4.1(b) shall so notify the Company in writing within ten days after the receipt
by such Holder of the Notice. All requests made pursuant to this Section 4.1(b)
will specify the amount of the Registrable Securities to be registered and will
also specify the intended method or methods of disposition thereof.
Notwithstanding the foregoing, the Company shall not be required to effect a
Demand Registration hereunder unless such Demand Registration is in respect of
the number of Registrable Securities whose aggregate offering price is expected
to be at least $1,000,000.
(ii) Number of Demand Registrations. The Company shall be
obligated to effect one Demand Registration. The Company shall not be deemed to
have effected a Demand Registration unless and until such Demand Registration is
declared effective.
(iii) Priority on Demand Registrations. Notwithstanding
anything in this Section 4.1(b) to the contrary, if the managing underwriter or
underwriters of a Demand Registration (or, in the case of a Demand Registration
not being underwritten, Holders of at least 50% of the outstanding Registrable
Securities sought to be registered therein), advise the Company in writing that
in its or their opinion the total amount of securities proposed to be sold in
such Demand Registration exceeds the amount which can be sold in such offering
without an adverse effect on the price, timing or distribution of the securities
offered, the Company shall be required to include in such registration only the
amount of Registrable Securities which the managing underwriter or underwriters
(or Holders, as the case may be) determine, in its or their sole discretion, can
be sold without an adverse effect on the price, timing or distribution of the
securities offered (the securities so included to be apportioned as follows: (i)
first, pro rata among the Holders of Registrable Securities making the Demand
Registration, (ii) second, pro rata among (A) the Exchange Holders, (B) the 1994
Holders and (C) the holders of outstanding Ordinary Shares, or ADSs representing
such Ordinary Shares, issued or issuable upon exercise of the Investor Warrants
and the Xxxxxx-Xxxxxxx Warrant, (iii) third, pro rata among the holders of
securities issued upon exercise of the Elan Warrants, (iv) fourth, the
Xxxxxxxxxx Shares; provided that if such Holders have requested inclusion in
such Demand Registration and more than 50% of the Registrable Securities of such
Holders requested to be included are not so included, such Holders shall be
entitled to one additional Demand Registration hereunder on the same terms and
conditions as would have applied to such Holders had such earlier Demand
Registration not been made.
(iv) Selection of Underwriters. If any offering pursuant to a
Demand Registration is in the form of an underwritten offering, the Company
shall have the right to select the managing underwriter or underwriters to
administer the offering, which managing
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underwriter or underwriters shall be of nationally recognized standing and
reasonably satisfactory to the Holders of a majority of the Registrable
Securities to be registered.
4.2 Hold-Back Agreements. (a) Restrictions on Public Sale by
Holders of Registrable Securities. Subject to Section 4.2(b), the registration
rights of the Holders pursuant to this Agreement and the ability to offer and
sell Registrable Securities pursuant to a Registration Statement are subject to
the following conditions and limitations, and each of the Holders agrees with
the Company that:
(i) If the Company determines in its good faith
judgment that the filing of a Registration Statement under Section 4.1 hereof or
the use of any Prospectus would require the disclosure of important information
which the Company has a bona fide business purpose for preserving as
confidential or the disclosure of which would impede the Company's ability to
consummate a significant transaction, upon written notice of such determination
by the Company, the rights of each of the Holders to offer, sell or distribute
any Registrable Securities pursuant to such Registration Statement or to require
the Company to take action with respect to the registration or sale of any
Registrable Securities pursuant to such Registration Statement (including any
action contemplated by Section 4.3 hereof) will for up to 120 days in any 12-
month period be suspended until the date upon which the Company notifies the
Holders in writing that suspension of such rights for the grounds set forth in
this Section 4.2(a)(i) is no longer necessary.
(ii) If consummation of any business combination
by the Company has occurred or is probable for purposes of Rule 3-05 or Article
11 of Regulation S-X under the Securities Act, upon written notice thereof by
the Company to the Holders, the rights of each of the Holders to offer, sell or
distribute any Registrable Securities pursuant to a Registration Statement or to
require the Company to take action with respect to the registration or sale of
any Registrable Securities pursuant to such Registration Statement (including
any action contemplated by Section 4.2 hereof) will for up to 120 days in any
12-month period be suspended until the date on which the Company has obtained
the financial information required by Rule 3-05 or Article 11 of Regulation S-X
to be included in such Registration Statement.
(iii) In the case of the registration of any
underwritten primary offering of capital stock of the Company (other than any
registration by the Company on Form F-8 or Form S-8, or a successor or
substantially similar form, of (A) an employee stock option, stock purchase or
compensation plan or of securities issued or issuable pursuant to any such plan,
or (B) a dividend reinvestment plan), each Holder agrees, if requested in
writing by the managing underwriter or underwriters administering such offering,
not to effect any offer, sale or distribution of Registrable Securities (or any
option or right to acquire Registrable Securities) during the period commencing
on the 10th day prior to the effective date of the registration statement
covering such underwritten primary offering and ending on the date specified by
such managing underwriter or underwriters in such written request.
(b) Limitation on Blackouts. Notwithstanding the provisions of
paragraph (a) of this Section 4.2 or the last paragraph of Section 4.3, the
aggregate number of days (whether or not consecutive) during which the Company
may delay the effectiveness of a Registration
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Statement under Section 4.1 hereof or prevent offerings, sales or distributions
by the Holders pursuant to paragraph (a) of this Section 4.2 or the last
paragraph of Section 4.3 shall in no event exceed 120 days during any 12-month
period.
4.3 Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 4.1 and Section 4.2 hereof, the
Company will:
(a) Prepare and file with the SEC a Registration Statement on
the appropriate form available for the sale of such Registrable Securities and
cause such Registration Statement to become effective and remain effective for a
period of up to 120 days, or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to a Registration Statement as may be necessary to
keep such Registration Statement continuously effective for a period of up to
120 days, or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold; cause the
related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or in such Prospectus as so
supplemented;
(c) Notify the Holders of Registrable Securities to be sold
and their Special Counsel, if any, immediately (i) when a Registration Statement
or any post-effective amendment thereto has become effective, (ii) of any
request by the SEC or any other Federal or state governmental authority for
amendments or supplements to a Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement covering any or all of
the Registrable Securities or the initiation of any proceedings for that
purpose, (iv) if at any time any of the representations and warranties of the
Company contained in any agreement (including any underwriting agreement)
contemplated hereby cease to be true and correct in all material respects, (v)
of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (vi) of the happening of any event that makes
any statement made in a Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in a Registration
Statement, Prospectus or documents so that, in the case of a Registration
Statement, it will not contain any 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, not misleading, and that in the case of a Prospectus, it
will not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
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(d) Furnish to each Holder of Registrable Securities and their
Special Counsel, if any, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits (other than exhibits to
documents incorporated by reference into such Registration Statement) to the
extent requested by such person (including those previously furnished or
incorporated by reference) as soon as practicable after the filing of such
documents with the SEC;
(e) Deliver to each Holder of Registrable Securities and their
Special Counsel, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Securities and the underwriters,
if any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto;
(f) Prior to any public offering of Registrable Securities
pursuant to a Registration Statement, use its reasonable efforts to register or
qualify such Registrable Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any Holder or
managing underwriter reasonably requests in writing; use its reasonable efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things in the opinion of the Company
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject;
(g) Cooperate with the Holders to facilitate the timely
preparation and delivery of ADRs evidencing Registrable Securities to be sold,
which ADRs shall not bear any restrictive legends and to enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders may request at least
two Business Days prior to any sale of Registrable Securities;
(h) Upon the occurrence of any event contemplated by Section
4.3(c)(vi), prepare a supplement or amendment, including a post-effective
amendment, to a Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(i) Use its reasonable efforts to cause all Registrable
Securities relating to such Registration Statement to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed.
-11-
The Company may require each seller of Registrable Securities
to furnish to the Company such information regarding the distribution of such
Registrable Securities as is required by law to be disclosed in a Registration
Statement and the Company may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
If a Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to 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 required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to a Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
During such time as the Holders of Registrable Securities may
be engaged in a distribution of such Registrable Securities, such Holders shall
comply with Regulation M promulgated under the Exchange Act, and pursuant
thereto, shall, among other things: (i) not engage in any stabilization activity
in connection with the securities of the Company in contravention of such Rules;
(ii) distribute the Registrable Securities solely in the manner described in the
Registration Statement; (iii) cause to be furnished to the managing underwriter
or underwriters, if any, or to the offeree if an offer is not made through the
managing underwriter or underwriters, if any, such copies of the Prospectus and
any amendment or supplement thereto and documents incorporated by reference
therein as may be required by law; and (iv) not bid for or purchase any
securities of the Company or attempt to induce any person to purchase any
securities of the Company other than as permitted under the Exchange Act.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4.3(c)(ii),
4.3(c)(iii), 4.3(c)(iv), 4.3(c)(v) or 4.3(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities until such
Holder's receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement contemplated by Section 4.3(h) hereof, or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement.
4.4 Registration Expenses. (a) All fees and expenses incident
to the performance of or compliance with this Agreement by the Company shall be
borne by the Company whether or not a Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
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required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel for the Company in connection with
Blue Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriter or underwriters, if any, or Holders of
a majority of Registrable Securities may designate)), (ii) printing expenses
(including, without limitation, expenses of printing ADRs evidencing Registrable
Securities and of printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriter or underwriters, if any, or by the Holders
of a majority of the Registrable Securities included in a Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and Special Counsel for the Holders
(subject to the provisions of Section 4.4(b) hereof), (v) fees and disbursements
of all independent chartered accountants for the Company (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company so desires such insurance, and (vii) fees and expenses
of all other persons retained by the Company; provided that the fees, discounts
and commissions of any underwriter or underwriters will be borne by the selling
Holders of the Registrable Securities included in a Registration Statement in
the relative proportion to the number of Registrable Securities of each such
Holder included in any Registration Statement. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange on
which similar securities issued by the Company are then listed.
(b) In connection with a Registration Statement, the Company
shall reimburse the Holders of the Registrable Securities for the reasonable
fees and disbursements of one firm of attorneys chosen by the Holders of a
majority of the Registrable Securities.
(c) Notwithstanding anything in this Section 4.4(c) to the
contrary, the Company shall not be required to pay any fees or expenses of any
Demand Registration begun pursuant to Section 4.1(b) hereof if the registration
request is subsequently withdrawn at any time at the request of the Holders of a
majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such fees and expenses), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to any
Demand Registration pursuant to Section 4.1(b) hereof; provided, however, that
if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business or prospects of the Company from that
know to the Holders of a majority of the Registrable Securities then outstanding
at the time of their request that makes the proposed offering unreasonable in
the good faith judgment of a majority in interest of the Holders of the
Registrable Securities then the Holders shall not be required to pay any such
expenses and the right to one Demand Registration pursuant to Section 4.1(b)
hereof shall not be forfeited.
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ARTICLE V
5.1 Indemnification. (a) Indemnification by the Company. The
Company shall, notwithstanding termination of this Agreement and without
limitation as to time, indemnify and hold harmless each Holder of Registrable
Securities, the officers, directors and employees of each of them, and each
person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the directors, officers,
agents and employees of such controlling persons, to the fullest extent lawful,
from and against any and all losses, claims, damages and liabilities
(collectively, "Losses"), arising out of or based upon (i) any untrue or alleged
untrue statement of a material fact contained in a Registration Statement under
which Registrable Securities held by such Holder were registered under the
Securities Act or offered for sale, in any preliminary prospectus (if used prior
to the effective date of such Registration Statement) or in any Prospectus or
any form of prospectus or in any amendment or supplement thereto (if used during
the period the Company is required to keep the Registration Statement
effective), in each case, on the effective date of such Registration Statement
or post-effective amendment, or the date of such Prospectus, including any
preliminary prospectus, or supplement, (ii) any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, necessary to make the statements therein in light of the
circumstances under which they were made) not misleading, (iii) any violation or
alleged violation by the Company of either of the Securities Act or the Exchange
Act, or any rule or regulation promulgated thereunder, or any state securities
law, and will reimburse, as incurred, each such indemnified party for any
reasonable legal or other out-of-pocket expenses reasonably incurred by them in
connection with investigating or defending against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action in
respect thereof; provided, however, that the Company will not be liable in any
such case to the extent, but only to the extent, that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, Prospectus, form of prospectus
or any amendment or supplement thereto, in reliance upon and in conformity with
information regarding such Holder furnished in writing to the Company by or on
behalf of such Holder expressly for use therein; provided, further, however,
that the Company shall not be liable to the extent that (A) any such Losses
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if (i) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus, such Holder failed to send or deliver a copy of the Prospectus with
or prior to the delivery of written confirmation of the sale by such Holder of a
Registrable Security to the person asserting such Losses who purchased such
Registrable Security that is the subject thereof and (ii) the Prospectus would
have adequately corrected such untrue statement or alleged untrue statement or
such omission or alleged omission or (B) any such Losses arise primarily out of
or are based solely upon an untrue statement or alleged untrue statement or
omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is adequately corrected
in an amendment or supplement to the Prospectus (such that there is no longer
any untrue statement of a material fact in the Prospectus or omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading) and if,
-14-
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, the Holder of Registrable
Securities thereafter failed to deliver such Prospectus as so amended or
supplemented, prior to or concurrently with the sale of a Registrable Security
to the person asserting such Losses who purchased such Registrable Security that
is the subject thereof from such Holder.
(b) Indemnification by a Holder of Registrable Securities. In
connection with a Registration Statement in which a Holder of Registrable
Securities is participating, such Holder of Registrable Securities shall furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with a Registration Statement or any Prospectus and agrees
to indemnify and hold harmless the Company, its directors, officers, agents and
employees, each person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents and employees of such controlling persons, to the fullest
extent lawful, from and against all Losses arising solely out of or based solely
upon (i) any untrue statement of a material fact contained in a Registration
Statement, any Prospectus, or any form of prospectus, or arising solely out of
or based solely upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Holder to the
Company expressly for use therein; (ii) the use by such Holder of any Prospectus
after such time as the Company has advised such Holder that the filing of a
post-effective amendment or supplement thereto is required, except the
Prospectus as so amended or supplemented, or after such time as the obligation
of the Company to keep the Registration Statement effective and current has
expired; or (iii) any information given or representation made by such Holder to
any purchaser in connection with the sale of Registrable Securities which is not
contained in and not in conformity with the Prospectus (as amended or
supplemented at the time of the giving of such information or making of such
representation). In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party promptly shall so notify the
person from whom indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided that the failure of any Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations pursuant to this Agreement,
except to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have prejudiced the Indemnifying Party.
Any such Indemnified Party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party
has agreed to pay such fees and expenses; or (2) the Indemnifying
-15-
Party shall have failed promptly to assume the defense of such action, claim or
proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such action, claim or proceeding; or (3) the named parties to any
such action, claim or proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party), it being understood, however, that, the Indemnifying
Party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all Indemnified Parties (other
than counsel for which the Indemnifying Party has agreed to pay under clause (1)
above), which firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
proceeding in respect of which any Indemnified Party is a party and is entitled
to indemnity hereunder, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such action or proceeding in a manner not
inconsistent with this Section 5.1) shall be paid to the Indemnified Party, as
incurred, within 10 Business Days of written notice thereof to the Indemnifying
Party (regardless of whether it is ultimately determined that an Indemnified
Party is not entitled to indemnification hereunder; provided that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification hereunder).
(d) Contribution. If a claim by an Indemnified Party for
indemnification under Section 5.1(a) or 5.1(b) hereof is found unenforceable by
a court of competent jurisdiction (even though the express provisions hereof
provide for indemnification in such case), then each applicable 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, in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Party 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 of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying Party
or Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent
-16-
such action, statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include, subject to the limitations set
forth in Section 5.1(c), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or Proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.1(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5.1(d), an
Indemnifying Party that is a Holder of Registrable Securities shall not be
required to contribute any amount in excess of the amount by which the proceeds
actually received by such Indemnifying Party from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such
Indemnifying Party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. 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.
5.2 Rules 144 and 144A. The Company shall use its best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available other information so long as necessary to
permit sales of its securities pursuant to Rule 144 or Rule 144A. The Company
further covenants that it will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 or Rule 144A. Upon the request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
5.3 Transfer of Registration Rights. Notwithstanding anything
contained herein to the contrary, the rights to participate in Company
registrations under Article IV hereof may be assigned by any Holder to a
transferee or assignee of Registrable Securities; provided that the Company is
given written notice by such Holder of Registrable Securities at the time of or
within 10 days after such transfer, setting forth the name and address of such
transferee or assignee and identifying the Registrable Securities with respect
to which such registration rights are being assigned; provided, further, that
such transferee or assignee acquires not less than 100,000 Registrable
Securities.
ARTICLE VI
6.1 Miscellaneous. (a) Remedies. In the event of a breach by
the Company or by a Holder of Registrable Securities, of any of their
obligations under this Agreement, each Holder of Registrable Securities or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder of
-17-
Registrable Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(b) Subsequent Registration Rights Agreements. After the date
hereof, without the written consent of the Holders of a majority of the then
outstanding Registrable Securities, the Company shall not grant to any person
the right to request the Company to register any securities of the Company under
the Securities Act unless the rights so granted are subject in all respects to
the prior rights of the Holders of Registrable Securities set forth herein, and
are not otherwise in conflict or inconsistent with the provisions of this
Agreement.
(c) 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
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of at least a majority of the then outstanding Registrable
Securities; provided, however, that for the purposes of this sentence,
Registrable Securities that are owned, directly or indirectly, by the Company
are not deemed outstanding. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of certain Holders of Registrable Securities and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or facsimile to:
(i) If to the Company at:
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Facsimile: 353-1-662-4950
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
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(ii) If to Xxxx at:
0 Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxx, Xxx Xxxx 10970-0519
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
(iii) If to any other person who is then the
registered Holder of any Registrable
Securities, to the address of such Holder as
it appears in the stock transfer books of
the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one Business Day after being delivered to a reputable
overnight delivery service for delivery on the next Business Day; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(e) Additional Parties. Only Persons (other than the initial
signatory hereto) that execute a joinder agreement in the form of Exhibit A
shall be deemed to be Investors. Except to the extent limited in any joinder
agreement, each Person that so becomes an Investor after the date hereof shall
be entitled to all rights and privileges of an Investor as if he or she had been
an original signatory to this Agreement.
(f) 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 and assigns; provided, however, that no assignment of
rights under this agreement will be valid unless made in connection with a
contemporaneous Transfer of Capital Stock which is not prohibited by this
Agreement; and provided, further, that upon any such assignment, the assignee
shall comply with Section 6.1(e) hereof. The Company may not assign or otherwise
transfer any rights under this Agreement without the prior written consent of
each of the parties hereto.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
-19-
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
-20-
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.
XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: President
XXXX LABORATORIES, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: President
-21-
Exhibit A
SHAREHOLDER'S AGREEMENT SIGNATURE PAGE
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Investor:
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By:
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Name:
Title:
Date:
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Address:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Telephone:
--------------------------------------------------
Telex:
--------------------------------------------------
Telecopy:
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-22-
