REGISTRATION RIGHTS AGREEMENT dated as of among JULIUS BAER AMERICAS, INC., and THE SHAREHOLDERS PARTY HERETO
Exhibit
10.2
dated as
of
[ ],
2008
among
▇▇▇▇▇▇
▇▇▇▇ AMERICAS, INC.,
and
THE
SHAREHOLDERS PARTY HERETO
TABLE
OF CONTENTS
________________
Page
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ARTICLE
1
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Definitions
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Section
1.01. Definitions
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1
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Section
1.02. Other
Definitional and Interpretative Provisions
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4
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ARTICLE
2
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Registration
Rights
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Section
2.01. Demand
Registration.
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5
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Section
2.02. Piggyback
Registration.
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7
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Section
2.03. Shelf
Registration.
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8
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Section
2.04. Lock-Up
Agreements
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9
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Section
2.05. Registration
Procedures
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10
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Section
2.06. Participation In Public
Offering
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13
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Section
2.07. Rights
Limited By Exchange Agreement
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13
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Section
2.08. Rule
144 Sales; Cooperation By The Company
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13
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ARTICLE
3
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Indemnification
and Contribution
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Section
3.01. Indemnification by the
Company
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14
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Section
3.02. Indemnification by
Participating Shareholders
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15
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Section
3.03. Conduct
of Indemnification Proceedings
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15
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Section
3.04. Contribution
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16
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Section
3.05. Other
Indemnification
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17
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ARTICLE
4
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Miscellaneous
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Section
4.01. Binding
Effect; Assignability; Benefit.
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17
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Section
4.02. Notices
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17
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Section
4.03. Waiver;
Amendment; Termination.
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18
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Section
4.04. Governing
Law
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19
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Section
4.05. Jurisdiction
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19
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Section
4.06. WAIVER
OF JURY TRIAL
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19
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Section
4.07. Specific
Enforcement
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19
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Section
4.08. Counterparts;
Effectiveness
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19
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Section
4.09. Entire
Agreement
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19
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Section
4.10. Severability
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20
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Section
4.11. Other
Registration Rights
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20
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i
Page
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Exhibit
A Joinder
Agreement
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ii
AGREEMENT
dated as of
[ ],
2008 (this “Agreement”),
among ▇▇▇▇▇▇ ▇▇▇▇ Americas, Inc., a Delaware corporation (the “Company”) and the Shareholders
party hereto as listed on the signature pages, including any Permitted
Transferees (collectively, the “Shareholders”).
In
consideration of the mutual promises made herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE
1
Definitions
Section
1.01. Definitions. (a)
The following terms, as used herein, have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by or under common control with such Person, provided that no
securityholder of the Company shall be deemed an Affiliate of any other
securityholder solely by reason of any investment in the Company. For
the purpose of this definition, the term “control” (including, with
correlative meanings, 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 and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Board” means the board of
directors of the Company.
“Business Day” means any day
except a Saturday, Sunday or other day on which commercial banks in New York
City are authorized by law to close.
“Common Shares” means shares of
Class A Common Stock, par value $0.001 per share, of the Company or any of its
successors and assigns, as well as any other securities into which such shares
of Class A Common Stock may hereafter be converted or changed or that may be
issued in respect of, in exchange for or in substitution of any such shares of
Class A Common Stock by reason of any dividend, split, reverse split,
combination, distribution, reclassification, recapitalization, restructuring,
merger, consolidation, conversion, securities exchange, reorganization or other
similar transaction.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“FINRA” means the Financial
Industry Regulatory Authority (formerly, the National Association of Securities
Dealers, Inc.) and any successor thereto.
“First Public Offering” means
the Company’s initial Public Offering.
1
“▇▇▇▇▇▇ ▇▇▇▇” means ▇▇▇▇▇▇ ▇▇▇▇
Holdings Limited, together with its subsidiaries that own any Registrable
Securities. ▇▇▇▇▇▇ ▇▇▇▇ shall also include, if ▇▇▇▇▇▇ ▇▇▇▇ Holdings
Limited or any of its subsidiaries shall have Transferred any of its Registrable
Securities to any of its Permitted Transferees, ▇▇▇▇▇▇ ▇▇▇▇ Holdings Limited,
such subsidiaries and such Permitted Transferees, taken together, and any right,
obligation or action that may be exercised or taken at the election of ▇▇▇▇▇▇
▇▇▇▇ may thereafter be taken at the election of ▇▇▇▇▇▇ ▇▇▇▇ Holdings Limited and
such Permitted Transferees as may be agreed by them.
“Permitted Transferee” means in
the case of any Shareholder, a Person to whom Registrable Securities are
Transferred by such Shareholder; provided that (i) such Transfer does
not violate any agreements between such Shareholder and the Company or any of
the Company’s subsidiaries, (ii) such Transfer is not made in a registered
offering or pursuant to Rule 144 under the Securities Act and (iii) such
transferee shall only be a Permitted Transferee if and to the extent the seller
designates the transferee as a Permitted Transferee entitled to rights hereunder
pursuant to Section
4.01(b).
“Person” means an individual,
corporation, limited liability company, partnership, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Principal” means ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ or ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇. Principal shall also include, if either
of them shall have Transferred any of his Registrable Securities to any of his
Permitted Transferees, such Principal and his Permitted Transferees, taken
together, and any right, obligation or action that may be exercised or taken at
the election of such Principal may thereafter be taken at the election of such
Principal and his Permitted Transferees as may be agreed by them.
“Public Offering” means an
underwritten public offering of Registrable Securities of the Company pursuant
to an effective registration statement under the Securities Act, other than
pursuant to a registration statement on Form S-4 or Form S-8 or any similar or
successor form.
“Registrable Securities” means,
at any time, (i) any Common Shares issued or issuable by the Company or any of
its successors or assigns upon conversion, exercise or exchange of any
securities of the Company or OpCo; (ii) any Common Shares now or hereafter held
by any of the Shareholders; (iii) any Common Shares acquired by way of any
rights offering or similar offering made in respect of any Common Shares
referred to in clause (i) or (ii) above; and (iv) any Common Shares issued or
issuable, directly or indirectly, with respect to any of the securities referred
to in clause (i) or clause (ii) above by reason of any dividend, split, reverse
split, combination, distribution, recapitalization, restructuring, merger,
consolidation, conversion, securities exchange, reorganization or other similar
transaction. Any particular Registrable Security shall cease to be a
Registrable Security when (x) a registration statement covering such Registrable
Security has been declared effective by the SEC and such Registrable Security
has been disposed of pursuant to such effective registration statement, or (y)
such Registrable Security is
2
sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act have been
met.
“Registration Expenses” means
any and all expenses incident to the performance of, or compliance with, any
registration or marketing of securities, including all (i) registration and
filing fees, and all other fees and expenses payable in connection with the
listing of securities on any securities exchange or automated interdealer
quotation system, (ii) fees and expenses of compliance with any securities or
“blue sky” laws (including reasonable fees and disbursements of counsel in
connection with “blue sky” qualifications of the securities registered), (iii)
expenses in connection with the preparation, printing, mailing and delivery of
any registration statements, prospectuses and other documents in connection
therewith and any amendments or supplements thereto, (iv) security engraving and
printing expenses, (v) internal expenses of the Company (including all salaries
and expenses of its officers and employees performing legal or accounting
duties), (vi) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses relating to any comfort letters
or costs associated with the delivery by independent certified public
accountants of any comfort letters requested pursuant to Section 2.05(h)),
(vii) reasonable fees and expenses of any special experts retained by the
Company in connection with such registration, (viii)
reasonable fees, out-of-pocket costs and expenses of the Shareholders, including
one counsel for all of the Shareholders participating in the offering selected
(A) by ▇▇▇▇▇▇ ▇▇▇▇ (and reasonably acceptable to each Principal, in the case of
any offering in which such Principal participates), in the case of any offering
in which it participates, or (B) in any other case, by the Shareholders holding
the majority of the Registrable Securities to be sold for the account of all
Shareholders in the offering, (ix) fees and expenses in connection with any
review by FINRA of the underwriting arrangements or other terms of the offering,
and all fees and expenses of any “qualified independent underwriter,” including
the fees and expenses of any counsel thereto, (x) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
any underwriting fees, discounts and commissions attributable to the sale of
Registrable Securities, (xi) costs of printing and producing any agreements
among underwriters, underwriting agreements, any “blue sky” or legal investment
memoranda and any selling agreements and other documents in connection with the
offering, sale or delivery of the Registrable Securities, (xii) transfer agents’
and registrars’ fees and expenses and the fees and expenses of any other agent
or trustee appointed in connection with such offering, (xiii) expenses relating
to any analyst or investor presentations or any “road shows” undertaken in
connection with the registration, marketing or selling of the Registrable
Securities, and (xiv) all out-of pocket costs and expenses incurred by the
Company or its appropriate officers in connection with their compliance with
Section
2.05(m). Except as set forth in clause (viii) above,
Registration Expenses shall not include any out-of-pocket expenses of the
Shareholders (or the agents who manage their accounts).
“Rule 144” means Rule 144 (or
any successor provisions) under the Securities Act.
“Rule 144A” has the meaning set
forth in Section
2.08(b).
3
“SEC” means the Securities and
Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended.
“Shareholder” means at any
time, any Person (other than the Company) who shall then be a party to or bound
by this Agreement, so long as such Person shall “beneficially own” (as such term
is defined in Rule 13d-3 of the Exchange Act) any Registrable
Securities.
“Transfer” means, with respect
to any Registrable Securities, (i) when used as a verb, to sell, assign, dispose
of, exchange, pledge, encumber, hypothecate or otherwise transfer such
Registrable Securities or any participation or interest therein, whether
directly or indirectly, or agree or commit to do any of the foregoing and (ii)
when used as a noun, a direct or indirect sale, assignment, disposition,
exchange, pledge, encumbrance, hypothecation, or other transfer of such
Registrable Securities or any participation or interest therein or any agreement
or commitment to do any of the foregoing.
(b) Each of
the following terms is defined in the Section set forth opposite such
term:
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Term
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Section
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Company
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Preamble
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Damages
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3.01
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Demand
Registration
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2.01(a)
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Indemnified
Party
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3.03
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Indemnifying
Party
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3.03
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Inspectors
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2.05(g)
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Lock-Up
Period
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2.04
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Maximum
Offering Size
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2.01(e)
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Notice
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4.02
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Piggyback
Registration
|
2.02(a)
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Records
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2.05(g)
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Registering
Shareholders
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2.01(a)
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Requesting
Shareholder
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2.01(a)
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Shelf
Registration
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2.03
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Underwritten
Takedown
|
2.03
|
Section
1.02. Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and
“hereunder” and words of like import used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. References to Articles, Sections or Exhibits are to Articles,
Sections and Exhibits of this Agreement unless otherwise
specified. All Exhibits annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit but not otherwise
defined therein, shall have the meaning as defined in this
Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural
4
term the
singular. Whenever the words “include”, “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation”, whether or not they are in fact followed by those words or
words of like import. “Writing”, “written” and comparable terms refer
to printing, typing and other means of reproducing words (including electronic
media) in a visible form. References to any agreement or contract are
to that agreement or contract as amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof. References to
any Person include the successors and permitted assigns of that
Person. References from or through any date mean, unless otherwise
specified, from and including or through and including,
respectively.
ARTICLE
2
Registration
Rights
Section
2.01. Demand
Registration.
(a) If the
Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇ or a Principal (the requesting
Shareholder shall be referred to herein as the “Requesting Shareholder”) that
the Company effect the registration under the Securities Act of all or any
portion of the Requesting Shareholder’s Registrable Securities, and specifying
the intended method of disposition thereof, then the Company shall promptly give
notice of such requested registration (each such request shall be referred to
herein as a “Demand
Registration”) at least 10 Business Days prior to the anticipated filing
date of the registration statement relating to such Demand Registration to the
other Shareholders and thereupon shall use its reasonable best efforts to
effect, as expeditiously as possible, the registration under the Securities Act
of:
(i) subject to
the restrictions set forth in Sections 2.01(e), all
Registrable Securities for which the Requesting Shareholder has requested
registration under this Section 2.01,
and
(ii) subject to
the restrictions set forth in Sections 2.01(e) and
2.02, all other
Registrable Securities of the same class as those requested to be registered by
the Requesting Shareholder that any Shareholder or Shareholders (all such
Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”)
have requested the Company to register pursuant to Section 2.02, by
request received by the Company within 7 Business Days after such Shareholders
receive the Company’s notice of the Demand Registration,
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,
provided that the
Company shall not be obligated to effect a Demand Registration unless the
aggregate proceeds expected to be received from the sale of the Registrable
Securities requested to be included in such Demand Registration equals or
exceeds $20,000,000 or such lesser amount that constitutes all of such
Shareholder’s (x) Registrable Securities and (y) other securities of the Company
or JB Americas Holdings LLC that are
5
convertible
into, exercisable for or exchangeable for shares of Common Shares. In
no event shall the Company be required to effect more than one Demand
Registration hereunder within any six-month period.
(b) Promptly
after the expiration of the 7-Business Day period referred to in Section 2.01(a)(ii),
the Company will notify all Registering Shareholders of the identities of the
other Registering Shareholders and the number of shares of Registrable
Securities requested to be included therein. At any time prior to the
effective date of the registration statement relating to such registration, the
Requesting Shareholder may revoke such request, without liability to any of the
other Registering Shareholders, by providing a notice to the Company revoking
such request. A request, so revoked, shall be considered to be a
Demand Registration unless (i) such revocation arose out of the fault of the
Company (in which case the Company shall be obligated to pay all Registration
Expenses in connection with such revoked request), or (ii) the Requesting
Shareholder reimburses the Company for all Registration Expenses of such revoked
request.
(c) The
Company shall be liable for and pay all Registration Expenses in connection with
any Demand Registration, regardless of whether such Registration is effected,
except as set forth in Section
2.01(b).
(d) A Demand
Registration shall not be deemed to have occurred:
(i) unless the
registration statement relating thereto (A) has become effective under the
Securities Act and (B) has remained effective for a period of at least 180 days
(or such shorter period in which all Registrable Securities of the Registering
Shareholders included in such registration have actually been sold thereunder),
provided that such
registration statement shall not be considered a Demand Registration if, after
such registration statement becomes effective, (1) such registration
statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court and (2) less than
75% of the Registrable Securities included in such registration statement have
been sold thereunder; or
(ii) if the
Maximum Offering Size is reduced in accordance with Section 2.01(e) such
that less than 662/3% of
the Registrable Securities of the Requesting Shareholders sought to be included
in such registration are included.
(e) If a
Demand Registration involves an underwritten Public Offering and the managing
underwriter advises the Company and the Requesting Shareholder that, in its
view, the number of shares of Registrable Securities requested to be included in
such registration (including any securities that the Company proposes to be
included that are not Registrable Securities) exceeds the largest number of
shares that can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the “Maximum Offering Size”), the
Company shall include in such registration, in the priority listed below, up to
the Maximum Offering Size:
6
(i) first, all
Registrable Securities requested to be included in such registration by all
Registering Shareholders (allocated, if necessary for the offering not to exceed
the Maximum Offering Size, pro rata among such other Shareholders on the basis
of the relative number of Registrable Securities held by each such Shareholder);
and
(ii) second, any
securities proposed to be registered by the Company (including for the benefit
of any other Persons not party to this Agreement).
(f) Upon
notice to the Requesting Shareholder, the Company may postpone effecting a
registration pursuant to this Section 2.01 on one
occasion during any period of six consecutive months for a reasonable time
specified in the notice but not exceeding 45 days
(which period may not be extended or renewed), if (i) the Company reasonably
determines that effecting the registration would materially and adversely affect
an offering of securities of such Company the preparation of which had then been
commenced, or (ii) the Company is in possession of material non-public
information the disclosure of which during the period specified in such notice
the Company reasonably believes would not be in the best interests of the
Company.
Section
2.02. Piggyback
Registration.
(a) If the
Company proposes to register any Registrable Securities under the Securities Act
(other than (i) a Shelf Registration, which will be subject to the provisions of
Section 2.03;
provided that any
Underwritten Takedown will be subject to this Section 2.02),
or (ii) a registration on Form S-8 or S-4, or any successor forms, relating to
Common Shares issuable upon exercise of employee stock options or in connection
with any employee benefit or similar plan of the Company or in connection with a
direct or indirect acquisition by the Company of another Person), whether or not
for sale for its own account, the Company shall each such time give prompt
notice at least 10 Business Days prior to the anticipated filing date of the
registration statement relating to such registration to each Shareholder, which
notice shall set forth such Shareholder’s rights under this Section 2.02 and
shall offer such Shareholder the opportunity to include in such registration
statement the number of Registrable Securities of the same class or series as
those proposed to be registered as each such Shareholder may request (a “Piggyback Registration”),
subject to the provisions of Section
2.02(b). Upon the request of any such Shareholder made within
7 Business Days after the receipt of notice from the Company (which request
shall specify the number of Registrable Securities intended to be registered by
such Shareholder), the Company shall use all reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by all such Shareholders, to the
extent requisite to permit the disposition of the Registrable Securities so to
be registered, provided
that (A) if such registration involves an underwritten Public Offering, all such
Shareholders requesting to be included in the Company’s registration must sell
their Registrable Securities to the underwriters selected as provided in Section 2.05(f)(i) on
the same terms and conditions as apply to the Company or the Requesting
Shareholders, as applicable, and (B) if, at any time
7
after
giving notice of its intention to register any Registrable Securities pursuant
to this Section
2.02(a) 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 shall give notice to all
such Shareholders and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration. No registration effected under this Section 2.02 shall
relieve the Company of its obligations to effect a Demand Registration to the
extent required by Section 2.01 or a
Shelf Registration to the extent required by Section
2.03. The Company shall pay all Registration Expenses in
connection with each Piggyback Registration.
(b) If a
Piggyback Registration involves an underwritten Public Offering (other than any
Demand Registration, in which case the provisions with respect to priority of
inclusion in such offering set forth in Section 2.01(e) shall
apply) and the managing underwriter advises the Company that, in its view, the
number of Shares that the Company and such Shareholders intend to include in
such registration exceeds the Maximum Offering Size, the Company shall include
in such registration, in the following priority, up to the Maximum Offering
Size:
(i) first, so much of the
Registrable Securities proposed to be registered for the account of the Company
(or, if such registration is pursuant to a demand by a Person that is not a
Shareholder, for the account of such other Person) as would not cause the
offering to exceed the Maximum Offering Size,
(ii) second, all
Registrable Securities requested to be included in such registration by any
Shareholders pursuant to Section 2.02
(allocated, if necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such
Shareholders on the basis of the relative number of shares of Registrable
Securities so requested to be included in such registration by each),
and
(iii) third, any securities
proposed to be registered for the account of any other Persons with such
priorities among them as the Company shall determine.
Section
2.03. Shelf
Registration.
(a) At any
time after the first anniversary of the First Public Offering, if the Company is
eligible to use Form S-3, ▇▇▇▇▇▇ ▇▇▇▇ or either Principal may request the
Company to effect a registration of the Registrable Securities under a
Registration Statement pursuant to Rule 415 under the Securities Act (or any
successor rule) (a “Shelf
Registration”). The Company shall only be required to
effectuate one Public Offering from such Shelf Registration (an “Underwritten Takedown”) within
any six-month period, which offering shall be deemed a Demand Registration, and
may be requested by ▇▇▇▇▇▇ ▇▇▇▇ or either Principal. The provisions
of Section 2.01
shall apply mutatis
mutandis to each Underwritten Takedown, with references to “filing of the
registration statement” or “effective date” being deemed references to filing of
a prospectus or supplement for such offering and references to “registration”
being
8
deemed
references to the offering; provided that Registering
Shareholders shall only include Shareholders whose Registrable Securities are
included in such Shelf Registration or may be included therein without the need
for an amendment to such Shelf Registration (other than an automatically
effective amendment). So long as the Shelf Registration is effective,
no Shareholder may request any Demand Registration pursuant to Section 2.01 with
respect to Registrable Shares that are registered on such Shelf
Registration.
(b) If the
Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇ or either Principal that the
Company effect a Shelf Registration, then the Company shall promptly give notice
of such requested registration at least 10 Business Days prior to the
anticipated filing date of the registration statement relating to such Shelf
Registration to the other Shareholders and thereupon shall use its reasonable
best efforts to effect, as expeditiously as possible, the registration under the
Securities Act of:
(i) all
Registrable Securities for which ▇▇▇▇▇▇ ▇▇▇▇ and the Principals have requested
registration under this Section 2.03,
and
(ii) all other
Registrable Securities of the same class as those requested to be registered by
the Requesting Shareholder that any Shareholders have requested the Company to
register by request received by the Company within 7 Business
Days after such Shareholders receive the Company’s notice of the Shelf
Registration,
all to the
extent necessary to permit the registration of the Registrable Securities so to
be registered on such Shelf Registration.
(c) At any
time prior to the effective date of the registration statement relating to such
Shelf Registration, the Shareholder who made the request may revoke such
request, without liability to any of the other Registering Shareholders, by
providing a notice to the Company revoking such request.
(d) The
Company shall be liable for and pay all Registration Expenses in connection with
any Shelf Registration.
(e) Upon
notice to the Requesting Shareholder, the Company may postpone effecting a
registration pursuant to this Section 2.03 on one
occasion during any period of six consecutive months for a reasonable time
specified in the notice but not exceeding
45 days
(which period may not be extended or renewed), if the Company determines that
effecting the registration would materially and adversely affect an offering of
securities of such Company the preparation of which had then been commenced or
the Company is in possession of material non-public information the disclosure
of which during the period specified in such notice the Company reasonably
believes would not be in the best interests of the Company.
Section
2.04. Lock-Up
Agreements. If any registration of Registrable Securities
shall be effected in connection with a Public Offering, neither the Company nor
any
9
Shareholder
shall effect any public sale or distribution, including any sale pursuant to
Rule 144, of any Registrable Securities or other security of the Company (except
as part of such Public Offering) during the period beginning 14 days prior to
the effective date of the applicable registration statement or, in the case of a
Shelf Registration, 14 days prior to launch of the offering or such later date
when the Shareholder receives notice thereof until the earlier of (i) such time
as the Company and the lead managing underwriter shall agree and (ii) 180 days
following the effective date of the applicable registration statement for the
First Public Offering and, otherwise, 90 days following the effective date of
the applicable registration statement or, in the case of a Shelf Registration,
90 days following the launch of the offering or such later date when the
Shareholder receives notice thereof (such period, the “Lock-Up Period” for the
applicable registration statement).
Section
2.05. Registration
Procedures. Whenever Shareholders request that any Registrable
Securities be registered pursuant to Section 2.01, 2.02 or 2.03 subject to the
provisions of such Sections, the Company shall use all reasonable best efforts
to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof as quickly as
practicable, and, in connection with any such request:
(a) The
Company shall as expeditiously as possible prepare and file with the SEC a
registration statement on any form for which the Company then qualifies or that
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use all
reasonable best efforts to cause such filed registration statement to become and
remain effective for a period of not less than 180 days, or in the case of a
Shelf Registration, three years (or such shorter period in which all of the
Registrable Securities of the Shareholders included in such registration
statement shall have actually been sold thereunder). Any such
registration statement shall be an automatically effective registration
statement to the extent permitted by the SEC’s rules and
regulations.
(b) Prior to
filing a registration statement or prospectus or any amendment or supplement
thereto (other than any report filed pursuant to the Exchange Act that is
incorporated by reference therein), the Company shall, if requested, furnish to
each participating Shareholder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company shall furnish to
such Shareholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424, Rule 430A, Rule 430B or Rule 430C under the Securities Act
and such other documents as such Shareholder or underwriter may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Shareholder.
10
(c) After the
filing of the registration statement, the Company shall (i) cause the related
prospectus to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii)
comply with the provisions of the Securities Act with respect to the disposition
of all Securities covered by such registration statement during the applicable
period in accordance with the intended methods of disposition by the
Shareholders thereof set forth in such registration statement or supplement to
such prospectus and (iii) promptly notify each Shareholder holding Registrable
Securities covered by such registration statement of any stop order issued or
threatened by the SEC or any state securities commission and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The
Company shall use all reasonable best efforts to (i) register or qualify the
Registrable Securities covered by such registration statement under such other
securities or “blue sky” laws of such jurisdictions in the United States as any
Registering Shareholder holding such Registrable Securities reasonably (in light
of such Shareholder’s intended plan of distribution) requests and (ii) cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Shareholder to
consummate the disposition of the Registrable Securities owned by such
Shareholder, provided
that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 2.05(d), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(e) The
Company shall immediately notify each Shareholder holding such Registrable
Securities covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and promptly prepare
and make available to each such Shareholder and file with the SEC any such
supplement or amendment.
(f) (i) ▇▇▇▇▇▇
▇▇▇▇ shall have the right to select an underwriter or underwriters in connection
with any Public Offering resulting from its exercise of a Demand Registration
(including any Underwritten Takedown), which underwriter or underwriters shall
be reasonably acceptable to (A) the Company, and (B) one or both of the
Principals if one or both Principals are selling in connection therewith; and
(ii) the Company shall select an underwriter or underwriters in connection with
any other Public Offering (which underwriter or underwriters shall be reasonably
acceptable to ▇▇▇▇▇▇ ▇▇▇▇ and each of the Principals, to the extent any of them
is selling in connection therewith). In connection with any Public
Offering, the Company shall enter into customary agreements (including an
underwriting agreement in customary form) and
11
take such
all other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities in any such Public Offering,
including the engagement of a “qualified independent underwriter” in connection
with the qualification of the underwriting arrangements with FINRA.
(g) Upon
execution of confidentiality agreements in form and substance reasonably
satisfactory to the Company, the Company shall make available for inspection by
any Shareholder and any underwriter participating in any disposition pursuant to
a registration statement being filed by the Company pursuant to this Section 2.05 and any
attorney, accountant or other professional retained by any such Shareholder or
underwriter (collectively, the “Inspectors”), all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the “Records”) as shall be
reasonably necessary or desirable to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection with
such registration statement. Records that the Company determines, in
good faith, to be confidential and that it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Shareholder agrees that information obtained by it
as a result of such inspections shall be deemed confidential and shall not be
used by it or its Affiliates as the basis for any market transactions in the
Registrable Securities unless and until such information is made generally
available to the public. Each Shareholder further agrees that, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, it shall give notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(h) The
Company shall use reasonable best efforts to furnish to each Registering
Shareholder and to each such underwriter, if any, a signed counterpart,
addressed to such Shareholder or underwriter, of (i) an opinion or opinions of
counsel to the Company and (ii) a comfort letter or comfort letters from the
Company’s independent public accountants, each in customary form and covering
such matters of the kind customarily covered by opinions or comfort letters, as
the case may be, as a majority of such Shareholders or the managing underwriter
therefore reasonably requests.
(i) The
Company shall otherwise use all reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement or such other
document covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement satisfies
the requirements of Rule 158 under the Securities Act.
(j) The
Company may require each Shareholder promptly to furnish in writing to the
Company such information regarding the distribution of the Registrable
12
Securities
as the Company may from time to time reasonably request and such other
information as may be legally required in connection with such
registration.
(k) Each
Shareholder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.05(e), such
Shareholder shall forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Shareholder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.05(e), and,
if so directed by the Company, such Shareholder shall deliver to the Company all
copies, other than any permanent file copies then in such Shareholder’s
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. If the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section
2.05(a)) by the number of days during the period from and including the
date of the giving of notice pursuant to Section 2.05(e) to
the date when the Company shall make available to such Shareholder a prospectus
supplemented or amended to conform with the requirements of Section
2.05(e).
(l) The
Company shall use all reasonable best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or quotation
system on which the Common Shares are then listed or traded.
(m) The
Company shall have appropriate officers of the Company (i) prepare and make
presentations at any “road shows” and before analysts and (ii) otherwise use
their reasonable efforts to cooperate as reasonably requested by the
underwriters in the offering, marketing or selling of the Registrable
Securities.
Section
2.06. Participation In Public
Offering. No Shareholder may participate in any Public
Offering hereunder unless such Shareholder (a) agrees to sell such Shareholder’s
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and the provisions of this Agreement in
respect of registration rights.
Section
2.07. Rights Limited By Exchange
Agreement. Notwithstanding anything to the contrary herein, in
no event shall either Principal be permitted to register or sell any Registrable
Securities hereunder except to the extent such Principal holds such Registrable
Securities or is permitted by the Exchange Agreement dated as of
[ ], 2008 among the Company, JB
Americas Holdings LLC, ▇▇▇▇▇▇ ▇▇▇▇ Holdings, LLC and each of the Principals, as
the same may be amended from time to time, to exchange units for such
Registrable Securities at such time.
Section
2.08. Rule 144 Sales; Cooperation By The
Company. If any Shareholder shall transfer any Registrable
Securities pursuant to Rule 144 or Rule 144A, the
13
Company
shall cooperate, to the extent commercially reasonable, with such Shareholder
and shall provide to such Shareholder such information as such Shareholder shall
reasonably request. Without limiting the foregoing, the Company
shall:
(a) at any
time after any of the Company’s shares of capital stock are registered under the
Securities Act or the Exchange Act: (i) make and keep available
public information, as those terms are contemplated by Rule 144 under the
Securities Act (or any successor or similar rule then in force); (ii) timely
file with the SEC all reports and other documents required to be filed under the
Securities Act and the Exchange Act; and (iii) furnish to each Shareholder
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other information as such Shareholder may reasonably request in order to avail
itself of any rule or regulation of the SEC allowing such Shareholder to sell
any Registrable Securities without registration; and
(b) each
Shareholder of Registrable Securities and each prospective Shareholder of
Registrable Securities who may consider acquiring Registrable Securities in
reliance upon Rule 144A under the Securities Act (or any successor or similar
rule then in force) (“Rule 144A”) shall
have the right to request from the Company, and the Company will provide upon
such request, such information regarding the Company and its business, assets
and properties, if any, as is at the time required to be made available by the
Company under Rule 144A so as to enable such Shareholder to transfer Registrable
Securities to such prospective Shareholder in reliance upon Rule
144A.
ARTICLE
3
Indemnification
and Contribution
Section
3.01. Indemnification by the
Company. The Company agrees to indemnify and hold harmless
each Shareholder beneficially owning any Registrable Securities covered by a
registration statement, its officers, directors, employees, partners and agents,
and each Person, if any, who controls such Shareholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable expenses of investigation and reasonable attorneys’ fees and
expenses) (collectively, “Damages”) caused by or
relating to any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
or free-writing prospectus (as defined in Rule 405 under the Securities Act), or
caused by or relating to any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Damages are caused by or related
to any such untrue statement or omission or alleged untrue statement or omission
so made based upon information furnished in writing to the Company by such
Shareholder or on such Shareholder’s behalf expressly for use
therein. The Company also agrees to indemnify any underwriters of the
Registrable Securities,
14
their
officers and directors and each Person who controls such underwriters within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Shareholders
provided in this Section
3.01.
Section
3.02. Indemnification by Participating
Shareholders. Each Shareholder holding Registrable Securities
included in any registration statement agrees, severally but not jointly, to
indemnify and hold harmless the Company, its officers, directors and agents and
each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Shareholder, but only
with respect to information furnished in writing by such Shareholder or on such
Shareholder’s behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus or free-writing
prospectus. Each such Shareholder also agrees to indemnify and hold
harmless underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Company
provided in this Section
3.02. As a condition to including Registrable Securities in
any registration statement filed in accordance with Article 2, the
Company may require that it shall have received an undertaking reasonably
satisfactory to it from any underwriter to indemnify and hold it harmless to the
extent customarily provided by underwriters with respect to similar
securities. No Shareholder shall be liable under this Section 3.02 for any
Damages in excess of the net proceeds realized by such Shareholder in the sale
of Registrable Securities of such Shareholder to which such Damages
relate.
Section
3.03. Conduct of Indemnification
Proceedings. If any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Article 3, such
Person (an “Indemnified
Party”) shall promptly notify the Person against whom such indemnity may
be sought (the “Indemnifying
Party”) in writing and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party, and shall assume the payment of all fees and expenses, provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention of such
counsel, (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, including one or more
defenses or counterclaims that are different from or in addition to those
available to the Indemnifying Party, or (iii) the Indemnifying Party shall have
failed to assume the defense within 30 days of notice pursuant to this Section
3.03. It is understood that, in connection with any proceeding
or related proceedings in the same jurisdiction, the Indemnifying Party shall
15
not be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. Without the prior written
consent of the Indemnified Party, no Indemnifying Party shall effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement
(A) includes an unconditional release of such Indemnified Party from all
liability arising out of such proceeding, and (B) does not include any
injunctive or other equitable or non-monetary relief applicable to or affecting
such Indemnified Person.
Section
3.04. Contribution. If
the indemnification provided for in this Article 3 is
unavailable to the Indemnified Parties in respect of any Damages, then each
Indemnifying Party, in lieu of indemnifying the Indemnified Parties, shall
contribute to the amount paid or payable by such Indemnified Party, 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 Damages 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 such action, statement or
omission. The amount paid or payable by a party as a result of any
Damages shall be deemed to include, subject to the limitations set forth in this
Agreement, any reasonable attorneys’ or other reasonable fees or expenses
incurred by such party in connection with any proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Article 3 was
available to such party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 3.04
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 3.04, no
Shareholder shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the proceeds actually received by such Shareholder
from the sale of the Registrable Securities subject to the proceeding exceeds
the amount of any damages that such Shareholder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission, except in the case of fraud by such Shareholder. Each
Shareholder’s obligation to contribute pursuant to this Section 3.03 is
several in the proportion that the proceeds of the offering received
16
by such
Shareholder bears to the total proceeds of the offering received by all such
Shareholders and not joint.
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. The indemnity and
contribution agreements contained in this Article 3 are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
Section
3.05. Other
Indemnification. Indemnification similar to that specified
herein (with appropriate modifications) shall be given by the Company and each
Shareholder participating therein with respect to any required registration or
other qualification of securities under any foreign, federal or state law or
regulation or governmental authority other than the Securities Act.
ARTICLE
4
Miscellaneous
Section
4.01. Binding Effect; Assignability;
Benefit.
(a) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, legal representatives and permitted
assigns. Any Shareholder that ceases to own beneficially any
Registrable Securities shall cease to be bound by the terms hereof (other than
(i) the provisions of Article 3
applicable to such Shareholder with respect to any offering of Registrable
Securities completed before the date such Shareholder ceased to own any
Registrable Securities and (ii) this Article
4).
(b) Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by any party hereto pursuant to any
Transfer of Registrable Securities or otherwise, except that each Shareholder
may assign rights hereunder to any Permitted Transferee. Any
Permitted Transferee shall (unless already bound hereby) execute and deliver to
the Company an agreement to be bound by this Agreement in the form of Exhibit A hereto and
shall thenceforth be a “Shareholder”.
(c) Nothing in
this Agreement, expressed or implied, is intended to confer on any Person other
than the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section
4.02. Notices. All
notices, requests and other communications (each, a “Notice”) to any party shall be
in writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by facsimile transmission,
17
if to the
Company to:
▇▇▇▇▇▇
▇▇▇▇ Americas, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
[General Counsel]
Fax: ▇▇
▇▇▇ ▇▇▇-####
with a
copy to:
▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
if to any
Shareholder, at the address for such Shareholder listed on the signature pages
below or otherwise provided to the Company as set forth below.
Any Notice
shall be deemed received on the date of receipt by the recipient thereof if
received prior to 5:00 p.m. in the place of receipt and such day is a Business
Day in the place of receipt. Otherwise, such Notice shall be deemed
not to have been received until the next succeeding Business Day in the place of
receipt. Any Notice sent by facsimile transmission also shall be
confirmed by certified or registered mail, return receipt requested, posted
within one Business Day, or by personal delivery, whether courier or otherwise,
made within two Business Days after the date of such facsimile
transmission.
Any Person
that becomes a Shareholder after the date hereof shall provide its address and
fax number to the Company.
Section
4.03. Waiver; Amendment;
Termination.
(a) No
provision of this Agreement may be waived except by an instrument in writing
executed by the party against whom the waiver is to be effective. No
provision of this Agreement may be amended or otherwise modified except
(i) prior to the First Public Offering, by an instrument in writing
executed by all the parties hereto, and (ii) after the First Public
Offering, by an instrument in writing executed by the Company and the holders of
at least 75% of the Registrable Securities held by the parties hereto at the
time of such proposed amendment or modification.
(b) In
addition, any amendment or modification of any provision of this Agreement that
would disproportionately adversely affect (i) ▇▇▇▇▇▇ ▇▇▇▇ or (ii) either
Principal (in each case excluding any Permitted Transferee thereof) may be
effected only with the consent of ▇▇▇▇▇▇ ▇▇▇▇ or such Principal.
18
Section
4.04. Governing
Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without regard
to the conflicts of laws rules of such state.
Section
4.05. Jurisdiction. The
parties hereby agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any state
or federal court in The City of New York, Borough of Manhattan, so long as one
of such courts shall have subject matter jurisdiction over such suit, action or
proceeding, and that any cause of action arising out of this Agreement shall be
deemed to have arisen from a transaction of business in the State of New York,
and each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient form. Process in any such suit, action or proceeding may
be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 4.02 shall be
deemed effective service of process on such party.
Section
4.06. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
4.07. Specific
Enforcement. Each party hereto acknowledges that the remedies
at law of the other parties for a breach or threatened breach of this Agreement
would be inadequate and, in recognition of this fact, any party to this
Agreement, without posting any bond or furnishing other security, and in
addition to all other remedies that may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy that may then be available.
Section
4.08. Counterparts;
Effectiveness. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in any number of
counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party
hereto shall have executed and delivered this Agreement. Until and
unless each party has executed and delivered this Agreement, this Agreement
shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other
communication).
Section
4.09. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes all prior and
19
contemporaneous
agreements and understandings, both oral and written, among the parties hereto
with respect to the subject matter hereof.
Section
4.10. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner so that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
Section
4.11. Other Registration
Rights. Neither the Company nor any of its subsidiaries has
previously entered into any agreement granting any registration rights with
respect to any of its securities to any person or entity. From and
after the date of this Agreement, the Company shall not enter into any agreement
with any holder or prospective holder of any securities of the Company giving
such holder or prospective holder any registration rights the terms of which are
equivalent to or more favorable than the registration rights granted to
Shareholders hereunder, or which would reduce the amount of Registrable
Securities the Shareholders can include in any registration filed pursuant to
this Agreement, unless such rights are subordinate to those of the Shareholders
hereunder.
Section
4.12. Independent Nature of Shareholders’
Obligations and Rights. The obligations of each Shareholder
hereunder are several and not joint with the obligations of any other
Shareholder hereunder, and no Shareholder shall be responsible in any way for
the performance of the obligations of any other Shareholder
hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Shareholder
pursuant hereto or thereto, shall be deemed to constitute the Shareholders as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Shareholders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this
Agreement. Each Shareholder shall be entitled to protect and enforce
its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Shareholder to be joined
as an additional party in any proceeding for such purpose
[Signature
page follows.]
20
IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement or have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
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▇▇▇▇ AMERICAS, INC.
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By:
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Name:
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Title:
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▇▇▇▇▇▇
▇▇▇▇ HOLDING LTD.
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By:
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Name:
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Title:
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Address for
Notices:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
With
Copies of Notices to:
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
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Fax: (▇▇▇)
▇▇▇-▇▇▇▇
___________________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇
Address for
Notices:
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▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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With
Copies of Notices to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. Gerkis
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
___________________________________
▇▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇
Address for
Notices:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
With
Copies of Notices to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. Gerkis
Fax: (▇▇▇)
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EXHIBIT
A
JOINDER TO REGISTRATION
RIGHTS AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as
of the date written below by the undersigned (the “Joining Party”) in accordance
with the Registration Rights Agreement dated as
of ,
2008 (as the same may be amended from time to time, the “Registration Rights
Agreement”) among ▇▇▇▇▇▇ ▇▇▇▇ Americas, Inc. and the Shareholders party
thereto. Capitalized terms used, but not defined, herein shall have
the meaning ascribed to such terms in the Registration Rights
Agreement.
The
Joining Party hereby acknowledges, agrees and confirms that, by its execution of
this Joinder Agreement, the Joining Party shall be deemed to be a party to the
Registration Rights’ Agreement as of the date hereof and shall have all of the
rights and obligations of a “Shareholder” thereunder as if it had executed the
Registration Rights Agreement. The Joining Party hereby ratifies, as
of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Registration Rights Agreement.
IN WITNESS
WHEREOF, the undersigned has executed this Joinder Agreement as of the date
written below.
Date:
___________ ___, ______
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[NAME
OF JOINING PARTY]
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By:
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Name:
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Title:
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Address
for Notices:
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