Exhibit 4.5
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 29, 2008
BETWEEN
SOLARFUN POWER HOLDINGS CO., LTD.
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
AS REPRESENTATIVE OF THE INITIAL PURCHASERS
REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") dated as of January 29, 2008
between Solarfun Power Holdings Co., Ltd., an exempted company incorporated and
validly existing with limited liability under the laws of the Cayman Islands
(the "COMPANY"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as representative of the
several initial purchasers listed on Schedule I (the "INITIAL PURCHASERS") to
the Purchase Agreement dated as of January 23, 2008 (the "PURCHASE AGREEMENT")
with the Company. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the beneficial owners (including
the Initial Purchasers) from time to time of the Securities (as defined herein)
and the beneficial owners from time to time of the Underlying Securities (as
defined herein) issued upon conversion of the Securities (each of the foregoing
a "HOLDER" and together the "HOLDERS"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"ADDITIONAL FILING DEADLINE" has the meaning set forth in Section 2(f)(v)
hereof.
"ADDITIONAL INTEREST AMOUNT" has the meaning set forth in Section 2(f)
hereof.
"ADS" means American Depository Shares of the Company, each representing
five Ordinary Shares of the Company, listed on the Nasdaq Global Market.
"AFFILIATE" means with respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"AMENDMENT EFFECTIVENESS DEADLINE" has the meaning set forth in Section
2(e) hereof.
"BUSINESS DAY" means any day, except a Saturday, Sunday or legal holiday on
which banking institutions in The City of New York are authorized or obligated
by law or executive order to close.
"CONVERSION PRICE" has the meaning assigned such term in the Indenture.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(h) hereof.
"DEFERRAL PERIOD" has the meaning set forth in Section 3(h) hereof.
"EFFECTIVENESS DEADLINE" has the meaning set forth in Section 2(a) hereof.
"EFFECTIVENESS PERIOD" means the period commencing on the first date that a
Shelf Registration Statement is declared effective under the Securities Act
hereof and ending on the date that all Securities and the Underlying Securities
have ceased to be Registrable Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE" has the meaning set forth in Section 2(a) hereof.
"FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405.
"HOLDER" has the meaning set forth in the second paragraph of this
Agreement.
"INDENTURE" means the Indenture dated as of the date hereof between the
Company and The Bank of New York, as trustee, pursuant to which the Securities
are being issued.
"INITIAL PURCHASERS" means the Initial Purchasers named in Schedule I to
the Purchase Agreement.
"INTEREST PAYMENT DATE" means each July 15 and January 15 of each year.
"ISSUE DATE" means the first date of original issuance of the Securities.
"ISSUER FREE WRITING PROSPECTUS" has the meaning set forth in Rule 433.
"MATERIAL EVENT" has the meaning set forth in Section 3(h) hereof.
"NOTICE AND QUESTIONNAIRE" means a written notice delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated as of January 23, 2008 relating to the
Securities.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a Notice
and Questionnaire to the Company on or prior to such date, provided not all of
such Holder's Registrable Securities that have been registered for resale
pursuant to a Notice and Questionnaire have been sold in accordance with a Shelf
Registration Statement.
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"ORDINARY SHARES" means the ordinary shares of the Company, US$0.0001 par
value per share, and any other ordinary shares of the Company as may constitute
"Ordinary Shares" for purposes of the Indenture, including the Ordinary Shares
represented by the ADS.
"PROSPECTUS" means a prospectus relating to a Shelf Registration Statement,
as amended or supplemented, and all materials incorporated by reference in such
Prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereof.
"RECORD DATE" means each July 1 and January 1 of each year.
"RECORD HOLDER" means with respect to any Interest Payment Date relating to
any Securities as to which any Additional Interest Amount has accrued, the
registered holder of such Security at the close of business on the Record Date
immediately preceding the Interest Payment Date.
"REGISTRABLE SECURITIES" means the Securities until such Securities have
been converted into or exchanged for the Underlying Security and, at all times
subsequent to any such conversion, the Underlying Security and any securities
into or for which such Underlying Security has been converted or exchanged, and
any security issued with respect thereto upon any shares dividend, split or
similar event until, in the case of any such security, (A) the earliest of (i)
its effective registration under the Securities Act and resale in accordance
with a Shelf Registration Statement, (ii) expiration of the holding period that
would be applicable thereto under Rule 144(k) or (iii) its sale to the public
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act, and (B) as a result of the event or circumstance
described in any of the foregoing clauses (i) through (iii), the legend with
respect to transfer restrictions required under the Indenture is removed or
removable in accordance with the terms of the Indenture or such legend, as the
case may be.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(f) hereof.
"REGISTRATION DEFAULT PERIOD" has the meaning set forth in Section 2(f)
hereof.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
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"RULE 405" means Rule 405 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"RULE 424" means Rule 424 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"RULE 433" means Rule 433 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the 3.50% Convertible Senior Notes due 2018 of the
Company to be purchased pursuant to the Purchase Agreement, including any
Securities purchased by the Initial Purchasers upon exercise of their options to
purchase additional Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 2(a)
hereof, including amendments to such registration statement, all exhibits to
such registration statement and all materials incorporated by reference in such
registration statement.
"SPECIAL COUNSEL" means ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or one such other successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, but which may, with the written consent of the Initial Purchasers
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company. For
purposes of determining Holders of a majority of the Registrable Securities in
this definition, Holders of Securities shall be deemed to be the Holders of the
number of shares of Underlying Securities into which such Securities are or
would be convertible as of the date the consent is requested.
"TRUSTEE" means The Bank of New York, the Trustee under the Indenture.
"UNDERLYING SECURITY" means the Ordinary Shares or the ADS into which the
Securities are convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) The Company shall prepare and file or
cause to be prepared and filed with the SEC, as soon as practicable but in any
event by the date (the "FILING DEADLINE") 150 days after the Issue Date, a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
time to time by Holders of the Registrable Securities (a "SHELF REGISTRATION
STATEMENT").
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The Shelf Registration Statement shall be on Form F-3 or another appropriate
form permitting registration of the Registrable Securities for resale by the
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Shelf Registration Statement. Each Shelf Registration
Statement that is filed on Form F-3 shall be designated by the Company as an
Automatic Shelf Registration Statement if the Company is then eligible to file
an Automatic Shelf Registration Statement on Form F-3 for the purposes
contemplated by this Agreement. If the Company is eligible pursuant to Rule
430B(b) to omit from the related Prospectus the identities of selling
securityholders and the amounts of securities to be registered on their behalf,
the Company shall prepare and file each Shelf Registration Statement in a manner
as to permit such omission and to allow for the subsequent filing of such
information in a Prospectus pursuant to Rule 424(b) in the manner contemplated
by Rule 430B(d). The Company shall use commercially reasonable efforts to cause
a Shelf Registration Statement to be declared effective under the Securities Act
as promptly as is practicable but in any event by the date (the "EFFECTIVENESS
DEADLINE") that is 210 days after the Issue Date, and to keep a Shelf
Registration Statement continuously effective under the Securities Act until the
expiration of the Effectiveness Period (except to the extent permitted under
Section 3(h)). Each Holder that became a Notice Holder on or prior to the date
ten Business Days prior to the initial Shelf Registration Statement is declared
effective shall be named as a selling securityholder in the initial Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver the Prospectus to purchasers of Registrable Securities in
accordance with applicable law, assuming the accuracy of the information in such
Holder's Notice and Questionnaire.
(b) If a Shelf Registration Statement covering resales of the Registrable
Securities ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all securities registered thereunder
shall have been resold pursuant thereto or shall have otherwise ceased to be
Registrable Securities), in each case except to the extent permitted under
Section 3(h), the Company shall use commercially reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within 30 days of such cessation of effectiveness amend the
Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement so that all Registrable Securities
outstanding as of the date of such filing are covered by a Shelf Registration
Statement. If a new Shelf Registration Statement is filed, the Company shall use
commercially reasonable efforts to cause the new Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep the
new Shelf Registration Statement continuously effective until the end of the
Effectiveness Period (except to the extent permitted under Section 3(h)).
(c) Subject to Section 2(e)(i), the Company shall amend and supplement the
Prospectus and amend the Shelf Registration Statement if required by the
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rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or file a new Shelf
Registration Statement, if required by the Securities Act, or any other
documents necessary to name a Notice Holder as a selling securityholder pursuant
to Section 2(e) below.
(d) The Company agrees that, unless it obtains the prior consent of the
Holders of a majority of the Registrable Securities that are registered under
the Shelf Registration Statement at such time or the consent of the managing
underwriters in connection with any underwritten offering of Registrable
Securities, and each Holder agrees that, unless it obtains the prior written
consent of the Company and any such underwriters, it will not make any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a Free Writing Prospectus
required to be filed with the SEC. The Company represents that any Issuer Free
Writing Prospectus prepared by it or authorized by it in writing for use by such
Holder will not include any information that conflicts with the information
contained in the Shelf Registration Statement or the Prospectus and, any such
Issuer Free Writing Prospectus, when taken together with the information in the
Shelf Registration Statement and the Prospectus, will not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) Each Holder may sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus only in accordance with this
Section 2(e) and Section 3(h). Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
shall deliver a Notice and Questionnaire to the Company at least ten Business
Days prior to any intended distribution of Registrable Securities under the
Shelf Registration Statement. From and after the date the initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
practicable after the date a fully completed Notice and Questionnaire is
delivered, and in any event upon the later of (x) 20 Business Days after such
date or (y) 20 Business Days after the expiration of any Deferral Period in
effect when the fully completed Notice and Questionnaire is delivered or put
into effect within 10 Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required
by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference
or file a new Shelf Registration Statement or any other required document
so that the Holder delivering such fully completed Notice and Questionnaire
is named as a selling securityholder in a Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of the Registrable Securities in accordance
with applicable law; provided, that, if a post-effective amendment or a new
Shelf Registration Statement is required by
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the rules and regulations of the SEC in order to permit resales by such
Notice Holder, the Company shall not be required to file more than one (1)
post-effective amendment or new Shelf Registration Statement for such
purpose in any thirty (30) day period; provided further, that in no event
shall the Company be obligated to file more than one (1) such supplement in
any thirty (30) day period; and, if the Company shall file a post-effective
amendment to a Shelf Registration Statement or shall file a new Shelf
Registration Statement, the Company shall use commercially reasonable
efforts to cause such post-effective amendment or new Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
is practicable, but in any event by the date (the "AMENDMENT EFFECTIVENESS
DEADLINE") that is 45 days after the date such post-effective amendment or
new Shelf Registration Statement is required by this clause to be filed
with the SEC;
(ii) provide such Holder, upon request, with a reasonable number of
copies of any documents filed pursuant to Section 2(e)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any new Shelf Registration
Statement or post-effective amendment filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral
Period, or a Deferral Period is put into effect within ten (10) Business Days
after the date such Holder became a Notice Holder, the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall, subject to the
limitations of this Section 2(e) take the actions set forth in clauses (i), (ii)
and (iii) above upon expiration of the Deferral Period in accordance with
Section 3(h). Notwithstanding anything contained herein to the contrary, (i) the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Shelf Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline shall be
extended by up to ten Business Days from the expiration of a Deferral Period.
(f) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if:
(i) a Shelf Registration Statement has not been filed on or prior to
the Filing Deadline;
(ii) a Shelf Registration Statement has not been declared effective
under the Securities Act on or prior to the Effectiveness Deadline;
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(iii) the Company has failed to perform its obligations set forth in
Section 2(e)(i) within the time period required therein (taking into
account the last sentence of Section 2(e));
(iv) a new Shelf Registration Statement or a post-effective amendment
to a Shelf Registration Statement filed pursuant to Section 2(e)(i) has not
become effective under the Securities Act on or prior to the Amendment
Effectiveness Deadline (taking into account the last sentence of Section
2(e));
(v) a supplement to a Prospectus is required to be filed with the SEC
pursuant to Section 2(e)(i) and fails to be filed with the SEC within the
prescribed period and in the manner set forth in Section 2(e) above (a date
such filing is required to be made, an "ADDITIONAL FILING DEADLINE"); or
(vi) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section
3(h) hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as a "REGISTRATION DEFAULT." For purposes of
this Agreement, each Registration Default set forth above shall begin and end on
the dates set forth in the table set forth below:
Type of
Registration
Default by
Clause Beginning Date Ending Date
------------ ----------------------------------- ------------------------------------------
(i) Filing Deadline the date a Shelf Registration Statement is
filed
(ii) Effectiveness Deadline the date a Shelf Registration Statement
becomes effective under the Securities Act
(iii) the date by which the Company is the date the Company performs its
required to perform its obligations obligations set forth in Section 2(e)(i)
under Section 2(e)(i) (taking into
account the last sentence of
Section 2(e))
(iv) the Amendment Effectiveness the date the applicable post-effective
Deadline (taking into account the amendment to a Shelf Registration
last sentence of Section 2(e)) Statement or a new Shelf Registration
Statement
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Type of
Registration
Default by
Clause Beginning Date Ending Date
------------ ----------------------------------- ------------------------------------------
becomes effective under the Securities Act
(v) the Additional Filing Deadline the date the applicable supplement to a
Prospectus is filed with the SEC in the
manner set forth in Section 2(e)
(vi) the date on which the aggregate termination of the Deferral Period that
duration of Deferral Periods in any caused the limit on the aggregate duration
period exceeds the number of days of Deferral Periods to be exceeded
permitted by Section 3(h)
For purposes of this Agreement, Registration Defaults shall begin on the dates
set forth in the table above and shall continue until the ending dates set forth
in the table above.
Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (a "REGISTRATION
DEFAULT PERIOD"), the Company shall pay to Record Holders of Registrable
Securities in respect of each day in the Registration Default Period, additional
interest in respect of any Security, at a rate per annum equal to 0.25% of the
aggregate principal amount of such Security for the first 90 days of such
Registration Default and a rate per annum equal to 0.50% of the aggregate
principal amount of such Security thereafter (the "ADDITIONAL INTEREST AMOUNT");
provided that in the case of a Registration Default Period that is in effect
solely as a result of a Registration Default of the type described in clause
(iii), (iv) or (v) of the preceding paragraph, such Additional Interest Amount
shall be paid only to the Holders (as set forth in the succeeding paragraph)
that have delivered Notices and Questionnaires that caused the Company to incur
the obligations set forth in Section 2(e) the non-performance of which is the
basis of such Registration Default. Notwithstanding the foregoing, no Additional
Interest Amount shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security (y)
the date, and to the extent, a Security is converted in accordance with the
Indenture and (z) expiration of the Effectiveness Period. The rate of accrual of
the Additional Interest Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Registration Defaults. All installments of additional interest shall
be paid by wire
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transfer of immediately available funds to the account specified by the Notice
Holder or, if no such account is specified, by mailing a check to such Notice
Holder's address shown in the register of the registrar for the Notes or, with
respect to any Notes that have been converted, such Notice Holder's mailing
address as shown on its Notice and Questionnaire.
The Additional Interest Amount shall accrue from the first day of the
applicable Registration Default Period, and shall be payable on each Interest
Payment Date during the Registration Default Period (and on the Interest Payment
Date next succeeding the end of the Registration Default Period if the
Registration Default Period does not end on a Interest Payment Date) to the
Record Holders of the Registrable Securities entitled thereto; provided that any
Additional Interest Amount accrued with respect to any Security or portion
thereof redeemed by the Company on a redemption date, purchased by the Company
on a repurchase date or converted into Underlying Securities on a conversion
date prior to the Interest Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Security or portion thereof for
redemption, purchase or conversion on the applicable redemption date, repurchase
date or conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion), unless the redemption date or
the repurchase date, as the case may be, falls after the Record Date immediately
preceding the Interest Payment Date and on or prior to the corresponding
Interest Payment Date; and provided further, that, in the case of a Registration
Default of the type described in clause (iii), (iv) or (v) of the first
paragraph of this Section 2(f) such Additional Interest Amount shall be paid
only to the Holders entitled thereto by check mailed to the address set forth in
the Notice and Questionnaire delivered by such Holder. The Trustee shall be
entitled, on behalf of registered holders of Securities, to seek any available
remedy for the enforcement of this Agreement, including for the payment of such
Additional Interest Amount. Notwithstanding the foregoing, the parties agree
that the sole damages payable for a violation of the terms of this Agreement
with respect to which additional interest is expressly provided shall be such
Additional Interest Amount. Nothing shall preclude any Holder from pursuing or
obtaining specific performance or other equitable relief with respect to this
Agreement.
All of the Company's obligations set forth in this Section 2(f) that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(l)). If a
Registrable Security ceases to be outstanding during a Registration Default
Period for which an Additional Interest Amount would be payable with respect to
such Registrable Security, then the Additional Interest Amount payable hereunder
with respect to such Registrable Security shall be prorated on the basis of the
number of full days such Registrable Security is outstanding during such
Registration Default Period.
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The parties hereto agree that the additional interest provided for in this
Section 2(f) constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of a
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial
Purchasers and the Special Counsel of such offering, if any, copies of all such
documents proposed to be filed at least three Business Days prior to the filing
of such Shelf Registration Statement or amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h) prepare and file with the SEC such amendments
and post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement continuously effective
during the Effectiveness Period; cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its commercially reasonable efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the
Initial Purchasers and the Special Counsel, (i) when any Prospectus, prospectus
supplement, Shelf Registration Statement or post-effective amendment to a Shelf
Registration Statement has been filed with the SEC and, with respect to a Shelf
Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the
initial Shelf Registration Statement under the Securities Act, by the SEC or any
other federal or state governmental authority for amendments or supplements to
any Shelf Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of any
Shelf Registration Statement or, to the Company's knowledge, the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or, to the Company's knowledge, the initiation or threatening
of any proceeding for such purpose, (v) after the effective date of any Shelf
Registration Statement filed with the SEC pursuant to this Agreement, of the
occurrence of, but not the nature
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of or details concerning, a Material Event and (vi) of the determination by the
Company that a post-effective amendment to a Shelf Registration Statement will
be filed with the SEC, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(h)) state that it constitutes a Deferral Notice,
in which event the provisions of Section 3(h) shall apply.
(d) Use commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment,
and provide immediate notice to each Notice Holder and the Initial Purchasers of
the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the Special
Counsel and the Initial Purchasers, upon request and without charge, at least
one conformed copy of each Shelf Registration Statement and any amendment
thereto, but excluding exhibits and all documents incorporated or deemed to be
incorporated therein by reference (unless requested in writing to the Company by
such Notice Holder, Special Counsel or the Initial Purchasers).
(f) During the Effectiveness Period, deliver to each Notice Holder, the
Special Counsel, if any, and the Initial Purchasers, in connection with any sale
of Registrable Securities pursuant to a Shelf Registration Statement, without
charge, as many copies of the Prospectus relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to
a Shelf Registration Statement, use commercially reasonable efforts to register
or qualify or cooperate with the Notice Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or, if required, Blue Sky laws of such jurisdictions within
the United States as any Notice Holder reasonably requests in writing (which
request may be included in the Notice and Questionnaire); prior to any public
offering of the Registrable Securities pursuant to a Shelf Registration
Statement, use commercially reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
in connection with such Notice Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in
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such jurisdictions of such Registrable Securities in the manner set forth in the
Shelf Registration Statement and the related Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of proceedings
with respect to a Shelf Registration Statement under Section 8(d) or 8(e) of the
Securities Act, (B) the occurrence of any event or the existence of any fact (a
"MATERIAL EVENT") as a result of which a Shelf Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the immediately
succeeding sentence, as promptly as practicable prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to such
Shelf Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration
Statement does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that such Prospectus
does not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder (it being understood that the
Company may rely on information with respect to a Notice Holder furnished
in writing by or on behalf of such Notice Holder to the Company for use in
such Prospectus), and, in the case of a post-effective amendment to a Shelf
Registration Statement, subject to the immediately succeeding sentence, use
commercially reasonable efforts to cause it to be declared effective as
promptly as is practicable, and
13
(ii) give notice to the Notice Holders, and the Special Counsel, if
any, that the availability of a Shelf Registration Statement is suspended
(a "DEFERRAL NOTICE").
The Company will use commercially reasonable efforts to ensure that the use of
the Prospectus may be resumed (x) in the case of clause (A) above, as promptly
as is practicable, (y) in the case of clause (B) above, as soon as, in the sole
judgment of the Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if necessary to
avoid unreasonable burden or expense, as soon as practicable thereafter and (z)
in the case of clause (C) above, as soon as in the reasonable discretion of the
Company, such suspension is no longer appropriate. The Company shall be entitled
to exercise its right under this Section 3(h) to suspend the availability of a
Shelf Registration Statement or any Prospectus and any such period during which
the availability of the Shelf Registration Statement and any Prospectus is
suspended (the "DEFERRAL PERIOD") shall, without incurring any obligation to pay
additional interest pursuant to Section 2(f), not exceed 45 days in any 90-day
period (or 60 days in any 90-day period in the event of a Material Event
pursuant to which the Company has delivered a second notice as required below)
or 90 days in any 12 month period; provided that in the case of a Material Event
relating to an acquisition or a probable acquisition or financing,
recapitalization, business combination or other similar transaction, the Company
may, without incurring any obligation to pay additional interest pursuant to
Section 2(f), deliver to Notice Holders a second notice to the effect set forth
above, which shall have the effect of extending the Deferral Period by up to an
additional 30 days, or such shorter period of time as is specified in such
second notice.
(i) If requested in writing in connection with a disposition of Registrable
Securities pursuant to a Shelf Registration Statement, make reasonably available
for inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities, any broker-dealers, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided that such persons shall first agree in writing with the
Company that any non-public information shall be used solely for the purposes of
satisfying "due diligence" obligations under the Securities Act and exercising
rights under this Agreement and shall be kept confidential by such persons,
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
14
authorities, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Shelf Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to any
such person from a source other than the Company and such source is not bound by
a confidentiality agreement, and provided further that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated
on behalf of all the Notice Holders and the other parties entitled thereto by
the Special Counsel. Any person legally compelled to disclose any such
confidential information made available for inspection shall provide the Company
with prompt prior written notice of such requirement so that the Company may
seek a protective order or other appropriate remedy.
(j) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earning statements covering a period
of twelve months (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) for a 12-month period commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Shelf Registration Statement, which statements shall be made
available no later than 45 days after the end of the 12-month period or 90 days
if the 12-month period coincides with the fiscal year of the Company.
(k) If electronic global certificates for the Registrable Securities are
not then available, cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
two Business Day prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by each
Shelf Registration Statement not later than the effective date of such Shelf
Registration Statement and provide the Trustee and the transfer agent for the
Ordinary Shares with printed certificates, if required, for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust
Company.
(m) Cooperate and assist in any filings required to be made with the
Financial Industry Regulatory Authority ("FINRA").
(n) Upon (i) the filing of the initial Shelf Registration Statement and
(ii) the effectiveness of the initial Shelf Registration Statement, announce the
same, in
15
each case by release to Reuters Economic Services and Bloomberg Business News.
Section 4. Holder's Obligations. (a) Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company with
a Notice and Questionnaire as required pursuant to Section 2(e) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not misleading.
(b) Upon receipt of any Deferral Notice, each Notice Holder agrees not to
sell any Registrable Securities pursuant to any Shelf Registration Statement
until such Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 3(h)(i), or until it is advised in writing by
the Company that the Prospectus may be used.
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any Shelf
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the FINRA and (y) of compliance with federal and state securities or
Blue Sky laws, if any (including, without limitation, reasonable fees and
disbursements of the Special Counsel in connection with Blue Sky qualifications
of the Registrable Securities under the laws of such jurisdictions as Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Shelf Registration Statement may designate), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Shelf Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Company in connection
16
with any Shelf Registration Statement, (v) reasonable fees and disbursements of
the Trustee and its counsel and of the registrar and transfer agent for the
Ordinary Shares, (vi) Securities Act liability insurance obtained by the Company
in its sole discretion and (vii) the fees and disbursements of Special Counsel
the selection of which shall be reasonably agreed by the Company. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
5, each seller of Registrable Securities shall pay any broker's commission,
agency fee or underwriter's discount or commission in connection with the sale
of the Registrable Securities under a Shelf Registration Statement.
Section 6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Notice Holder,
each person, if any, who controls any Notice Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of any Notice Holder within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement or any amendment
thereof, any preliminary prospectus or any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any Issuer Free Writing Prospectus prepared by it or authorized by
it in writing for use by such Notice Holder (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), caused by
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 losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Notice Holder furnished to the Company in
writing by, or on behalf of, such Notice Holder expressly for use therein;
provided that the foregoing indemnity shall not inure to the benefit of any
Notice Holder (or to the benefit of any person controlling such Notice Holder)
from whom the person asserting such losses, claims or liabilities purchased the
Registrable Securities, if a copy of the Prospectus or the Issuer Free Writing
Prospectus (both as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Notice Holder to such person, if required by law so to have been
delivered at or prior to the written confirmation of the sale of the Registrable
Securities to such person, and if
17
the Prospectus or the Issuer Free Writing Prospectus (both as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 2(b) hereof; provided further, that no Holder shall be
entitled to this indemnity to the extent, and only to the extent, such loss,
damage, expense, liability, claim or action arises out of a disposition,
pursuant to a Shelf Registration Statement, of Registrable Securities by such
Holder during a Deferral Period, provided such Holder received, prior to such
disposition, a Deferral Notice with respect to such Deferral Period.
(b) Each Notice Holder agrees severally and not jointly to indemnify and
hold harmless the Company and its directors, its officers who sign any Shelf
Registration Statement 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) or any other Notice Holder, to the same extent as the foregoing
indemnity from the Company to such Notice Holder, but only with reference to
information relating to such Notice Holder furnished to the Company in writing
by or on behalf of such Notice Holder expressly for use in such Shelf
Registration Statement, Prospectus or Issuer Free Writing Prospectus or
amendment or supplement thereto. In no event shall the liability of any Notice
Holder hereunder be greater in amount than the dollar amount of the proceeds
received by such Notice Holder upon the sale of the Registrable Securities
pursuant to the Shelf Registration Statement giving rise to such indemnification
obligation.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 6(a) or 6(b) hereof, such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. 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 or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in
18
the case of parties indemnified pursuant to Section 6(a), the Holders of a
majority (with Holders of Securities deemed to be the Holders, for purposes of
determining such majority, of the number of shares of Underlying Securities into
which such Securities are or would be convertible as of the date on which such
designation is made) of the Registrable Securities covered by the Shelf
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b),
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given such indemnifying
party at least thirty (30) days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, 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
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent that the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed to
be equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities to
which such losses, claims, damages or liabilities relate. The relative benefits
19
received by any Holder shall be deemed to be equal to the net proceeds from the
sale of Registrable Securities sold by such Holder. The relative fault of the
Holders on the one hand and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holders or by the Company, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Shelf Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6(d), no indemnifying party that is a selling
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities sold by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity, hereunder, under the Purchase Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder, any person controlling any Holder or any affiliate of any Holder or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
Section 7. Information Requirements. The Company covenants that, if at any
time before the end of the Effectiveness Period, the Company is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder and take such further reasonable action as any Holder may reasonably
request in
20
writing (including, without limitation, making such reasonable representations
as any such Holder may reasonably request), all to the extent required from time
to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions. Upon the written
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has duly filed all reports required to be filed by it
under Section 13 or 15(d) the Exchange Act during the preceding twelve (12)
months, unless such a statement has been included in the Company's most recent
report filed pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities (other than the Ordinary
Shares) under the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement. The Company represents and warrants that the
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any other
agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Securities constituting Registrable Securities
(with Holders of Securities deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of Underlying Securities into which
such Securities are or would be convertible as of the date on which such consent
is requested). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Shelf
Registration Statement; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence. Notwithstanding the foregoing sentence, this
Agreement may be amended by written agreement signed by the Company and the
Initial Purchasers, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities
21
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b) whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by fax, by courier or by
first-class mail, return receipt requested, and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier,
(iii) one Business Day after being deposited with such courier, if made by
overnight courier or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by such Holder
to the Company in a Notice and Questionnaire or any amendment thereto;
(ii) if to the Company, to:
Solarfun Power Holdings Co., Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Jiangsu Province 226200
People's Republic of China
Attention: Chief Financial Officer
Fax: (▇▇-▇▇▇) ▇▇▇▇-▇▇▇▇
with a copy to:
Shearman & Sterling, LLP
12 Floor East Tower, Twin Towers
▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
Attention: ▇▇▇▇ Seem
Fax: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
(iii) if to the Initial Purchasers, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Convertible Debt Syndicate Desk
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ Club ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Indenture. If any 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 and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Submission to Jurisdiction; Appointment of Agent for Service. Each of
the parties hereto irrevocably submits to the non-exclusive jurisdiction of any
New York State or United States Federal court sitting in the borough of
Manhattan, The City of New York (each a "NEW YORK COURT") over any suit,
23
action or proceeding arising out of or relating to this Agreement, the
Indenture, the Securities, the Deposit Agreement, the Registration Rights
Agreement or the offering of the Securities. The Company irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum. To the extent that the
Company has or hereafter may acquire any immunity (on the grounds of sovereignty
or otherwise) from the jurisdiction of any court or from any legal process with
respect to itself or its property, the Company irrevocably waives, to the
fullest extent permitted by law, such immunity in respect of any such suit,
action or proceeding. The Company hereby irrevocably appoints CT Corporation,
with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent for
service of process in any suit, action or proceeding described in the preceding
paragraph and agrees that service of process in any such suit, action or
proceeding may be made upon it at the office of such agent. The Company waives,
to the fullest extent permitted by law, any other requirements of or objections
to personal jurisdiction with respect thereto. The Company represents and
warrants that such agent has agreed to act as the Company's agent for service of
process, and the Company agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Registrable Securities. Except as provided in the
Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall
24
have any rights, duties or obligations other than those specifically set forth
in this Agreement. In no event will such methods of distribution take the form
of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
(l) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for additional interest under
Section 2(f) hereof to the extent such additional interest accrues prior to the
end of the Effectiveness Period, each of which shall remain in effect in
accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SOLARFUN POWER HOLDINGS CO., LTD.
By:
------------------------------------
Name:
Title:
Confirmed and accepted as of the date
first above written, for itself and as
the representative of the several
Initial Purchasers:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Title: