EXHIBIT NO. 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of June 22, 2003 (together
with all schedules hereto, and as each may be amended, supplemented or otherwise
modified from time to time, the "Agreement") is between ACETEX CORPORATION, a
Canadian corporation (the "Company"), PERRY PARTNERS L.P., a limited partnership
organized under the laws of New York, and PERRY PARTNERS INTERNATIONAL, INC., a
corporation organized in the Cayman Islands, hereinafter collectively referred
to as the "SHAREHOLDERS."
WHEREAS, the Company and AT Plastics Inc. ("AT Plastics") are entering
into a Combination Agreement as of the date hereof (the "Combination Agreement")
pursuant to which the Company will establish a wholly-owned subsidiary that will
amalgamate with AT Plastics (the "Amalgamation") on and subject to the terms and
conditions set out in the Combination Agreement;
WHEREAS, the shares of common stock of AT Plastics held by the
Shareholders have not been registered under the Securities Act (as hereinafter
defined) or any state securities laws; and the certificates representing such
shares of common stock bear a legend restricting their transfer;
WHEREAS, the shares of common stock of AT Plastics held by the
Shareholders will be exchanged for shares of common stock of the Company
pursuant to the Amalgamation;
WHEREAS, in connection with the foregoing, the Company has agreed,
subject to the terms, conditions and limitations set forth in this Agreement, to
provide the Shareholders and their respective successors, assigns and
transferees as permitted herein with certain registration rights in respect of
shares of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. Capitalized words and phrases used and not otherwise
defined in this Agreement shall have the following meanings:
COMMISSION: means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: means the common shares of the Company and any shares
hereafter authorized of any class of the Company, and, in the case of a
reclassification, recapitalization or other similar change in such Common Stock
or in the case of a consolidation or merger of the Company with or into another
Person, such consideration to which a holder of a share of Common Stock would
have been entitled upon the occurrence of such event.
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COMPANY: includes, in addition to the Company, any successor or
assignee corporation or corporations into which or with which the Company may be
merged or consolidated; any corporation for whose shares the Common Stock may be
exchanged; and any assignee of or successor to all or substantially all of the
assets of the Company.
EXCHANGE ACT: means the Securities Exchange Act of 1934, as amended.
HOLDER: means each Shareholder, and each Person who is a Permitted
Transferee of any Shareholder.
REGISTER, REGISTERED, and REGISTRATION: when used with respect to the
capital stock of the Company, mean a registration effected by preparing and
filing with the Commission a registration statement or similar document in
compliance with the Securities Act which has been declared or ordered effective
in accordance with the Securities Act.
PERMITTED TRANSFEREE: means any corporation, partnership, limited
liability company or other entity controlled by, controlling or under common
control with any Shareholder (collectively, the "SHAREHOLDER ASSOCIATES") to
whom any Shareholder or any Shareholder Associate has Transferred shares of
Common Stock; Notwithstanding any Person's status as a Permitted Transferee, any
Transfer of Registrable Securities shall be subject to the provisions of Section
9.1.
PERSON: means any individual, corporation, partnership, trust or other
entity of any nature whatsoever.
REGISTRABLE SECURITIES: means the Common Stock held by a Holder. Shares
of Common Stock shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such shares of Common Stock shall have
become effective under the Securities Act pursuant to Section 2.1 or Section 3.1
of this Agreement and such shares of Common Stock shall have been disposed of
pursuant to such registration statement, (ii) such shares of Common Stock shall
have been sold or otherwise distributed pursuant to Rule 144 (or any successor
provision) and Rule 145 (or any successor provision) under the Securities Act,
(iii) with respect to Common Stock held by any Holder, registration under the
Securities Act or any applicable state law is not required to permit the
distribution of all of such securities to the public or an exemption from
registration is available therefor, including, without limitation, at such time
as such securities are eligible for sale or other distribution under Rule 144
(or any successor provision) and Rule 145 (or any successor provision) in
accordance with the volume and other limitations thereof, and (iv) such shares
of Common Stock shall have ceased to be outstanding.
SECURITIES ACT: means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
TRANSFER: means any transfer, sale, gift, assignment, distribution,
conveyance, pledge, hypothecation, encumbrance or other voluntary or involuntary
transfer of title or beneficial interest, whether or not for value, including,
without limitation, any disposition by operation of law or any grant of a
derivative or economic interest therein.
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ARTICLE II
DEMAND REGISTRATION
2.1 REGISTRATION. (a) The Company shall prepare and file with the
Commission no later than July 20, 2003 a registration statement on Form F-3 (or
other applicable form) with respect to the Shareholders' Registrable Securities
and use its best efforts to cause such registration statement to become
effective as soon as practicable but no later than 90 days following said filing
and keep such registration statement effective for a period ending no earlier
than 366 days from the date the Amalgamation is effected or until the
distribution described in the registration statement relating thereto has been
completed, whichever shall first occur.
(b) The Shareholders and each Holder or any number of Holders of
Registrable Securities may at any time when the registration statement referred
to in (a) above is not effective (including at any time following the 365th day
that the Amalgamation is effective) make a written request to the Company that
the Company file a registration statement or similar document under the
Securities Act with respect to all or any part of such Holder's or Holders'
Registrable Securities (a "DEMAND REGISTRATION"). Subject to the provisions of
Section 2.1 (c) and Section 4.1, the Company shall cause such registration
statement or similar document to be filed with the Commission and shall use its
best efforts to include in such registration statement the Registrable
Securities which the Company has been requested to register by the requesting
Holders and to cause all such Registrable Securities to be registered under the
Securities Act within 90 days of receipt of the requesting Holders' request.
Collectively, the Holders shall be entitled to request one (1) Demand
Registration.
(c) The Company agrees not to issue any Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock (other than
securities issued pursuant to the Company's option or other benefit plans,
pursuant to a registration identified in clauses (i)-(iii) of Section 3.1(a), or
securities issued by the Company included in any Demand Registration or
securities issued upon conversion of outstanding warrants or common stock issued
in connection with the refinancing of debt issued in connection with the
Amalgamation), for the period commencing 30 days prior to the closing of the
offering of securities included in any Demand Registration and ending on the
30th day following such closing. The Holders shall give the Company notice of
the anticipated closing date of such offering.
2.2 EXPENSES. With respect to the registration contemplated by Section
2.1 (a) and any Demand Registration, the Company shall pay, and shall reimburse
each Holder for paying, any expenses incurred in connection with such
registrations, including, without limitation, all registration, qualification,
printing and accounting fees and all fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of not more than one counsel
for all participating Holders, but not any underwriting or brokerage fees or
commissions nor any expenses of underwriters or brokers.
ARTICLE III
PIGGYBACK REGISTRATION
3.1 NOTICE OF REGISTRATION. (a) In the event that the Company proposes
to register any of its Common Stock, either for its own account or for the
account of any Person other than the Holders, but not including a registration
(i) relating to employee stock option or purchase plans,
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(ii) relating to a transaction pursuant to Rule 145 under the Securities Act, or
(iii) pursuant to a registration form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of Registrable Securities (a "Piggyback Registration"), the
Company will:
(X) promptly give written notice thereof to the Holders; and
(Y) use its best efforts to include in such Piggyback
Registration and in any underwriting involved therein up to all of the
Registrable Securities which the Holders request in writing to be so
included within 15 days after receipt of such written notice from the
Company.
(a)
(b) Notwithstanding the provisions of Section 3.1(a), the Company shall
not be required to include any Registrable Securities in any Piggyback
Registration during any period in which a shelf registration statement shall
have become and be maintained effective; PROVIDED that such shelf registration
statement shall register under the Securities Act all Registrable Securities and
shall not be subject to (x) any stop order suspending its effectiveness or (y)
any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in such
shelf registration statement.
3.2 EXPENSES. The Company shall pay, and shall reimburse each Holder
for paying, any expenses incurred in connection with a Piggyback Registration
requested pursuant to Section 3.1, including, without limitation, all
registration, qualification, printing and accounting fees and all fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of not more than one counsel for all participating Holders, but
not any underwriting or brokerage fees or commissions nor any expenses of
underwriters or brokers.
3.3 UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
3.1, and the right of the Holders to include Registrable Securities in such
registration shall be conditioned upon the Holders' participation in such
underwriting and the entry of the participating Holders (together with the
Company and other holders distributing their securities through such
underwriting) into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
3.4 PRIORITY. If the underwriter of the registered public offering
referred to in Section 3.3 shall advise the Company in writing that marketing
factors require a limitation of the amount of securities to be underwritten,
securities shall be included in such offering in the following priority: FIRST,
the Common Stock proposed to be registered by the Company; SECOND, Registrable
Securities requested to be included in such registration by requesting Holders
pursuant to Section 3.1; and THIRD, other securities for the account of Persons
other than Holders, allocated among such Persons in accordance with the
priorities then existing among the Company and such Persons. Any securities
excluded pursuant to the provisions of this Section 4.4 shall be withdrawn from
and shall not be included in such Piggyback Registration.
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ARTICLE IV
PERMITTED DELAYS IN REGISTRATION; HOLDBACK AGREEMENTS
4.1 SUSPENSION OF COMPANY OBLIGATIONS. Notwithstanding anything to the
contrary set forth in this Agreement, the Company's obligation under Article II
of this Agreement to file any registration statement and to use its best efforts
to cause Registrable Securities to be registered as provided therein shall be
suspended in the event either (i) the Company is engaged in an underwritten
primary offering and the Company is advised in writing by the underwriters that
the sale of Registrable Securities would have a material adverse effect on such
primary offering or (ii) in the good faith opinion of counsel to the Company,
effecting the filing of a Registration Statement pursuant to 2.1(b) hereof would
adversely affect a material financing, acquisition, disposition of assets or
stock, merger or other comparable transaction or would require the Company to
make public disclosure of information the public disclosure of which would have
a material adverse effect upon the Company (any of the events set forth in
clauses (i) and (ii) being hereinafter referred to as a "Suspension Event"), but
such suspension shall occur on not more than one occasion in a 365 day period
and shall continue only for so long as such event or its effect is continuing,
but in no event will any such suspension exceed 180 days. The Company shall
promptly notify the Holders in writing of the existence of any Suspension Event,
and with such notice shall provide the Holders with a copy of such underwriters'
determination (in the case of clause (i) above), or such opinion of counsel the
Board of Directors (in the case of clause (ii) above).
4.2 NO PARTICIPATION IN OTHER SECURITIES OFFERINGS. The rights granted
by the Company hereunder shall be the exclusive rights granted to Holders with
respect to Registrable Securities. Except as otherwise provided herein, Holders
shall have no rights to participate in any offering of securities by the Company
to third parties, including without limitation, any offering of Common Stock,
whether such offering is effected pursuant to registration under the Securities
Act or pursuant to an exemption from registration thereunder. The Company may,
in its sole and absolute discretion, elect to waive the applicability in any
particular instance of the provisions of this Section 4.2.
ARTICLE V
REGISTRATION PROCEDURES
5.1 REGISTRATION PROCEDURES. In the case of each registration to be
effected by the Company pursuant to this Agreement in which any Holder is
participating, the Company will keep the Holder advised in writing as to the
initiation of each registration and as to the completion thereof. In connection
with each such offering, the Company shall as expeditiously as possible, at its
sole expense:
(a) prepare and file with the Commission a registration statement with
respect to such Holder's Registrable Securities and use its best efforts to
cause such registration statement to become effective and to remain effective
for a period of at least 180 days (except with respect to the registration
statement contemplated by 2.1(a) hereof which shall remain effective at least
until 366 days from the date the Amalgamation is effected) or until the
distribution described in the registration statement relating thereto has been
completed, whichever shall first occur;
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(b) in connection with the preparation and filing of a registration
statement, give the Holder, its underwriters, if any, and their respective
counsel, the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, and give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers, its counsel and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of the Holder's and such underwriters' respective counsel, to conduct a
reasonable due diligence investigation within the meaning of the Securities Act;
(c) furnish to the Holder and to the underwriters of the securities
being registered such number of copies of the registration statement,
preliminary prospectus, final prospectus and other documents incident thereto as
such underwriters and the Holder from time to time may reasonably request;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(e) register or qualify the Registrable Securities covered by such
registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be requested by the Holder for the distribution of the
Registrable Securities covered by the registration statement to be sold by the
Holder; PROVIDED that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
(f) enter into an underwriting agreement in customary form and
substance reasonably satisfactory to the Company, the Holder and the managing
underwriter or underwriters of the public offering of such securities, if the
offering is to be underwritten, in whole or in part; PROVIDED that the Holder
shall be a party to such underwriting agreement and may, at its option, require
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of the Holder. The Holder shall not be required to make any
representations or warranties to or agreement with the Company or the
underwriters other than representations, warranties or agreements regarding the
Holder and the Holder's intended method of distribution and any other
representation or warranty required by law;
(g) notify the Holder at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(h) furnish, at the request of the Holder on the date that any
Registrable Securities are to be delivered to the underwriters for sale in
connection with a registration pursuant to this
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Agreement, if such securities are being sold through underwriters, on the date
that the registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holder and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holder; and
(i) list all Registrable Securities covered by such registration
statement on such securities exchange as may be mutually agreed upon by the
parties.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE COMPANY. In the event of any registration of
any Registrable Securities pursuant to this Agreement under the Securities Act,
the Company will, and hereby does, indemnify and hold harmless each
participating Holder, each of its directors, officers and controlling persons,
if any, within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, to which such participating Holder or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Company will reimburse each participating Holder and
controlling person for any reasonable legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by any participating Holder, specifically stating that it is for
use in the preparation thereof. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any participating
Holder or any such underwriter or controlling person and shall survive the
transfer of such securities by the Holder.
6.2 INDEMNIFICATION BY PARTICIPATING HOLDERS. Each of the participating
Holders whose Registrable Securities are included or to be included in any
registration statement, as a condition to including Registrable Securities in
such registration statement, agrees to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 6.1) the Company, each
director of the Company, each officer of the Company and each other Person, if
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any, who controls the Company within the meaning of the Securities Act, with
respect to any untrue statement or alleged untrue statement of a material fact
in or omission or alleged omission to state a material fact from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by any participating Holder specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. The obligation to
provide indemnification pursuant to this Section 6.2 shall be several, and not
joint and several, among such participating Holders. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer, or any such underwriter or
controlling person and shall survive the transfer of such securities by any
participating Holder.
6.3 NOTICES OF CLAIMS. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in Section 6.1 or 6.2, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action; PROVIDED, HOWEVER, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 6.1 or 6.2,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to the
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED that the indemnified party may participate in such
defense at the indemnified party's expense and PROVIDED, FURTHER, that all
indemnified parties shall have the right to employ one counsel to represent them
if, in the reasonable judgment of such indemnified parties, it is advisable for
them to be represented by separate counsel by reason of having legal defenses
which are different from or in addition to those available to the indemnifying
party, and in that event the reasonable fees and expenses of such one counsel
shall be paid by the indemnifying party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
indemnified parties with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other indemnified parties with respect to such claim,
in which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel for the indemnified parties. No indemnifying
party shall consent to entry of any judgment or enter into any settlement
without the consent of the indemnified party which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. No indemnifying party shall be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
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6.4 OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding Sections of this Article VI (with appropriate modifications) shall
be given by the Company and any participating Holder with respect to any
required registration or other qualification of securities under any federal or
state law or regulation of any governmental authority other than the Securities
Act.
6.5 INDEMNIFICATION PAYMENTS. The indemnification required by this
Article VI shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
6.6 CONTRIBUTION. If, for any reason, the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability (a) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission); or (b) if the allocation
provided by clause (a) above is not permitted by applicable law or provides a
lesser sum to the indemnified party than the amount otherwise payable hereunder,
in the proportion as is appropriate to reflect not only the relative fault of
the indemnifying party and the indemnified party, but also the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other, as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
ARTICLE VII
INFORMATION BY PARTICIPATING HOLDERS
7.1 INFORMATION REGARDING PARTICIPATING HOLDERS. If any Registrable
Securities are included in any registration, each participating Holder shall
furnish to the Company and any applicable underwriter such information regarding
such Holder and the distribution proposed by such Holder as the Company or such
underwriter may request in writing and as shall be required in connection with
any registration, qualification or compliance referred to in this Agreement.
ARTICLE VIII
RULE 144 AND RULE 145 SALES
8.1 REPORTING. With a view to making available to the Holders the
benefits of certain rules and regulations of the Commission which may permit the
sale of Registrable Securities (and shares of Common Stock held by any Holder
which are eligible for sale or distribution under Rule 144 (or any successor
provision) and Rule 145 (or any successor provision)
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promulgated under the Securities Act) to the public without registration or
through short form registration forms the Company agrees to:
(a) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(b) furnish to each Holder, so long as such Holder owns any Registrable
Securities (or any shares of Common Stock which are eligible for sale or
distribution under Rule 144 and Rule 145), forthwith upon request a written
statement by the Company that it has complied with the reporting requirements of
Rule 144 and Rule 145, the Securities Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents so filed by the Company as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission permitting such
Holder to sell any such securities without registration.
(c) RULE 144 AND RULE 145 SALES. In connection with any sale, transfer
or other disposition by any Holder of any Registrable Securities (or any shares
of Common Stock which are eligible for sale or distribution under Rule 144 and
Rule 145) pursuant to Rule 144 and Rule 145, upon the delivery to the Company of
an opinion of counsel to the Holder (such counsel to be reasonably satisfactory
to the Company) to the effect that such securities may be sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act so that all transfer restrictions can be removed upon the
consummation of such sale, the Company shall provide such Holder with
certificates representing the Common Stock, free and clear of all transfer
restrictions and legends. The Company agrees promptly to deliver such
legend-free certificates to the Holder for such number of shares of Common Stock
and registered in such names as the Holder may reasonably request.
ARTICLE IX
TRANSFER OF RIGHTS
9.1 TRANSFER OR ASSIGNMENT. The rights granted hereunder by the Company
may be assigned or otherwise conveyed to the respective transferees of the
Shareholders. It shall be a condition to any Transfer that (a) such Transfer is
effected in accordance with applicable federal and state securities laws, (b)
such transferee or assignee becomes a party to this Agreement or agrees in
writing to be subject to the terms hereof to the same extent as if it were the
Holder hereunder, and (c) the Company is given written notice by the Holder of
said Transfer, stating the name and address of said transferee and identifying
the securities with respect to which such registration rights are being
assigned.
ARTICLE X
TERMINATION
10.1 TERMINATION. This Agreement and the rights provided hereunder
shall terminate and be of no further force and effect with respect to each
Holder on the earlier of the date such Holder shall no longer hold any
Registrable Securities.
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ARTICLE XI
MISCELLANEOUS
11.1 REMEDIES FOR BREACH. It is expressly understood that the equitable
remedies of specific performance and injunction shall be available for the
enforcement of the covenants and agreements herein, and that the availability of
these equitable remedies shall not be deemed to limit any other right or remedy
to which any party to this Agreement would otherwise be entitled.
11.2 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 9.1,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors, assigns and transferees of the parties
If any successor, assignee or transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
11.3 NOTICES. All notices and other communications provided for
hereunder shall be in writing and sent by registered or certified mail, return
receipt requested, postage prepaid or delivered in person or by courier,
telecopier or electronic mail, and shall be deemed to have been duly given when
received, by the party to whom such notice is to be given at its address set
forth below, or at such other address for the party as shall be specified by
notice given pursuant hereto:
(a) if to the Company, to:
Acetex Corporation
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
Burnet ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
(b) if to a Holder, to:
Perry Capital LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Block, Esq.
11.4 GOVERNING LAW. This Agreement and any controversy or claim arising
out of or relating to this Agreement shall be governed by the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
11.5 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions whether oral or written, of the parties. No supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by all parties. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
11.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Copies of executed
counterparts transmitted by telecopy or other electronic transmission service
shall be considered original executed counterparts for purposes of this Section
11.6.
11.7 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
11.8 HEADINGS. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
11.9 GENDER AND OTHER REFERENCES. Unless the context clearly indicates
otherwise, the use of any gender pronoun in this Agreement shall be deemed to
include all other genders, and singular references shall include the plural and
vice versa.
11.10 COOPERATION IN PRIVATE RESALES. The Company shall reasonably
cooperate with any Holder who seeks to sell any Registrable Securities in a
transaction exempt from the requirements of the Securities Act, including any
private placement or block trade. Such cooperation shall include, without
limitation, assisting the Holder by providing information regarding the Company
and reasonable access to Company facilities and personnel to potential buyers of
Registrable Securities.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ACETEX CORPORATION
Per: (signed) "▇▇▇▇▇▇ ▇. ▇▇▇▇"
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman & Chief Executive Officer
PERRY PARTNERS L.P. BY PERRY
CORP., ITS GENERAL PARTNER
Per: (signed) "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇"
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director and Chief
Financial Officer
PERRY PARTNERS INTERNATIONAL,
INC. BY PERRY CORP., ITS
INVESTMENT MANAGER
Per: (signed) "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇"
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director and Chief
Financial Officer
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