EXHIBIT 4.5
SUNTECH POWER HOLDINGS CO., LTD.
REGISTRATION RIGHTS AGREEMENT
February 12, 2007
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of February 12, 2007, by and among Suntech Power Holdings Co.,
Ltd., an exempted company with limited liability under the laws of the Cayman
Islands (the "Company"), and UBS Securities LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C. and
ABN AMRO Bank N.V., Hong Kong Branch and N M Rothschild & Sons (Hong Kong)
Limited, each trading as ABN AMRO Rothschild ("AAR") (collectively, the "Initial
Purchasers") pursuant to the Purchase Agreement, dated February 7, 2007 (the
"Purchase Agreement"), among the Company and the Initial Purchasers.
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 and delivery of this Agreement is a condition
to the closing under the Purchase Agreement. The terms "herein," "hereof,"
"hereto," "hereinafter" and similar terms, as used in this Agreement, shall in
each case refer to this Agreement as a whole and not to any particular section,
paragraph, sentence or other subdivision of this 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 Covered Securities
(as defined herein) (each of the foregoing a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a) "Additional Filing Deadline Date" has the meaning set forth in
Section 2(e) hereof.
(b) "additional interest" has the meaning set forth in Section 2(e)
hereof.
(c) "Additional Interest Accrual Period" has the meaning set forth
in Section 2(e) hereof.
(d) "Additional Interest Amount" has the meaning set forth in
Section 2(e) hereof.
(e) "Additional Interest Payment Date" means each February 15 and
August 15 of each year.
(f) "ADSs" means American depositary shares of the Company, each
representing one Ordinary Share.
(g) "Affiliate" means, with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person. An Affiliate of AAR
shall include ABN AMRO Bank N.V., Hong Kong Branch, N M Rothschild & Sons
(Hong Kong) Limited and each of their respective group members.
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(h) "Amendment Effectiveness Deadline Date" has the meaning set
forth in Section 2(d) hereof.
(i) "Automatic Shelf Registration Statement" has the meaning
ascribed to it in Rule 405.
(j) "Business Day" means any weekday that is not a day on which
banking institutions in the City of New York are authorized or obligated
to close.
(k) "Claim" has the meaning set forth in Section 9(o) hereof.
(l) "Conversion Rate" has the meaning ascribed to it in the
Indenture.
(m) "Covered Security" has the meaning set forth in Section 1(qq)
hereof.
(n) "Depositary" shall mean The Bank of New York or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
(o) "Designated Counsel" means one (1) counsel, if any, for the
Holders in connection with the Shelf Registration Statement, which
Designated Counsel shall be designated in writing to the Company by
Holders of a majority of the Registrable Securities.
(p) "Effectiveness Deadline Date" has the meaning set forth in
Section 2(a) hereof.
(q) "Effectiveness Period" means a period that terminates when there
are no Registrable Securities outstanding.
(r) "Event" has the meaning set forth in Section 2(e) hereof.
(s) "Event Date" has the meaning set forth in Section 2(e) hereof.
(t) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(u) "Form F-1" means Form F-1 under the Securities Act.
(v) "Form F-3" means Form F-3 under the Securities Act.
(w) "Holder" has the meaning set forth in the preamble hereto.
(x) "Holder Information" has the meaning set forth in Section 6(b)
hereof.
(y) "Indemnified Party" has the meaning set forth in Section 6(c)
hereof.
(z) "Indemnifying Party" has the meaning set forth in Section 6(c)
hereof.
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(aa) "Indenture" means the Indenture, dated as of February 12, 2007,
between the Company and the Trustee, pursuant to which the Notes are being
issued.
(bb) "Initial Purchasers" has the meaning set forth in the preamble
hereto.
(cc) "Initial Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
(dd) "Issue Date" means February 12, 2007.
(ee) "Issuer Free Writing Prospectus" shall have the meaning set
forth in Section 2(g) herein.
(ff) "judgment currency" has the meaning set forth in Section 9(p)
hereof.
(gg) "Material Event" has the meaning set forth in Section 3(j)
hereof.
(hh) "Notes" means the 0.25% Convertible Senior Notes due 2012 of
the Company to be purchased pursuant to the Purchase Agreement.
(ii) "Notice and Questionnaire" means a written notice and
questionnaire delivered to the Company and 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 February 7, 2007, relating to the Notes.
(jj) "Notice Holder" means, on a given 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.
(kk) "Option Purchase Date" has the meaning ascribed to it in the
Indenture.
(ll) "Ordinary Shares" means the ordinary shares, $0.01 par value
per share, of the Company, including the Underlying Ordinary Shares, or
such other shares or equity interests in the Company's share capital into
which such ordinary shares is reclassified or changed.
(mm) "Proceeding" has the meaning set forth in Section 6(c) hereof.
(nn) "Prospectus" means each prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 415 under the
Securities Act), and each amendment or prospectus supplement relating
thereto, including post-effective amendments, and all materials
incorporated by reference or deemed to be incorporated by reference in the
foregoing.
(oo) "Purchase Agreement" has the meaning set forth in the preamble
hereof.
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(pp) "Record Date" means, (i) February 1, with respect to an
Additional Interest Payment Date that occurs on February 15 and (ii)
August 1, with respect to an Additional Interest Payment Date that occurs
on August 15.
(qq) "Record Holder" means, with respect to an Additional Interest
Payment Date relating to a Registrable Security for which any Additional
Interest Amount has accrued, a Notice Holder that was the holder of record
of such Registrable Security at the close of business on the Record Date
relating to such Additional Interest Payment Date.
(rr) "Redemption" has the meaning ascribed to it in the Indenture.
(ss) "Redemption Date" has the meaning ascribed to it in the
Indenture.
(tt) "Registrable Securities" means (a) the Notes, until such Notes
have been converted, (b) at all times, the Underlying Ordinary Shares and
any security issued with respect thereto upon any share dividend, split or
similar event, (c) at all times, any Underlying ADSs issued upon
conversion of the Notes if such issuance is not made pursuant to an
effective registration statement on Form F-6, and (d) at all times, any
securities (other than the Company's ADSs or Ordinary Shares) which the
Notes become convertible into in accordance with the terms of the
Indenture (each of the foregoing, a "Covered Security") until, in the case
of any such security, the earliest of:
(i) the date on which such security has been effectively
registered under the Securities Act and disposed of in accordance
with the Registration Statement relating thereto (including, in the
case of Underlying Ordinary shares, the disposal thereof in the form
of ADSs issued pursuant to an effective registration statement on
Form F-6);
(ii) the second anniversary of the first date on which the
Company first issues the Notes; or
(iii) the date on which such security has been publicly sold
pursuant to Rule 144 or any successor provision thereto (including,
in the case of Underlying Ordinary Shares, the sale thereof in the
form of ADSs issued pursuant to an effective registration statement
on Form F-6).
(uu) "Registration Expenses" has the meaning set forth in Section 5
hereof.
(vv) "Registration Statement" means each registration statement,
including each Shelf Registration Statement, under the Securities Act, of
the Company that covers any of the Registrable Securities pursuant to this
Agreement, including any information deemed to be part of and included in
such registration statement pursuant to the rules of the SEC and all
amendments and supplements to such registration statement and including
all post-effective amendments to, all exhibits of, and all materials
incorporated by reference or deemed to be incorporated by reference in,
such registration statement, amendment or supplement.
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(ww) "Repurchase at Holder's Option" has the meaning ascribed to it
in the Indenture.
(xx) "Repurchase Date" has the meaning ascribed to it in the
Indenture.
(yy) "Repurchase Upon Repurchase Event" has the meaning ascribed to
it in the Indenture.
(zz) "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.
(aaa) "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.
(bbb) "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.
(ccc) "Rule 415" means Rule 415 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.
(ddd) "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.
(eee) "Rule 430B" means Rule 430B 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.
(fff) "Rule 456" means Rule 456 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.
(ggg) "Rule 457" means Rule 457 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.
(hhh) "SEC" means the Securities and Exchange Commission.
(iii) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
(jjj) "Shelf Registration Statement" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement.
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(kkk) "Subsequent Shelf Registration Statement" has the meaning set
forth in Section 2(b) hereof.
(lll) "Subsequent Shelf Registration Statement Effectiveness
Deadline Date" has the meaning set forth in Section 2(d) hereof.
(mmm) "Suspension Notice" has the meaning set forth in Section 3(j)
hereof.
(nnn) "Suspension Period" has the meaning set forth in Section 3(j)
hereof.
(ooo) "TIA" means the Trust Indenture Act of 1939, as amended.
(ppp) "Trustee" means Wilmington Trust Company, the trustee under
the Indenture.
(qqq) "Underlying ADSs" means the ADSs issuable upon conversion of
the Notes.
(rrr) "Underlying Ordinary Shares" means the Ordinary Shares
represented by the Underlying ADSs.
2. Shelf Registration.
(a) The Company shall prepare and file, or cause to be prepared and
filed, with the SEC, a Registration Statement (the "Initial Shelf
Registration Statement") for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 registering the resale from time to
time by Holders thereof of all of the Registrable Securities (or, if
registration of Registrable Securities not held by Notice Holders is not
permitted by the rules and regulations of the SEC, then registering the
resale from time to time by Notice Holders of their Registrable
Securities). The Initial Shelf Registration Statement shall provide for
the registration of such Registrable Securities for resale by such Holders
in accordance with the reasonable methods of distribution indicated in
their Notice and Questionnaires (provided, however, that in no event will
such methods of distribution take the form of an underwritten offering of
Registrable Securities without the Company's prior written consent, which
the Company may withhold in its sole discretion). In no event shall the
Initial Shelf Registration Statement be filed with the SEC prior to
completion of the offering of the Notes contemplated by the Purchase
Agreement. The Company shall use its reasonable best efforts to (i) cause
the Initial Shelf Registration Statement to become effective under the
Securities Act by the date (the "Effectiveness Deadline Date") that is two
hundred and forty (240) days after the Issue Date and (ii) keep the
Initial Shelf Registration Statement (and any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act
until the expiration of the Effectiveness Period (except to the extent
permitted under Section 3(j)). At the time the Initial Shelf Registration
Statement becomes effective under the Securities Act, each Holder that
became a Notice Holder on or before the fifth (5th) Business Day before
the date of such effectiveness shall be named as a selling securityholder
in the Initial Shelf Registration Statement and the related Prospectus in
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such a manner as to permit such Notice Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with the Securities
Act, assuming the accuracy of the information in such Notice Holder's
Notice and Questionnaire.
(b) If, for any reason, at any time during the Effectiveness Period
any Shelf Registration Statement ceases to be effective under the
Securities Act, or ceases to be usable for the purposes contemplated
hereunder, in each case except to the extent permitted under Section 3(j),
the Company shall use its reasonable best efforts to promptly cause such
Shelf Registration Statement to become effective under the Securities Act
(including obtaining the prompt withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement) or promptly cause such
Shelf Registration Statement to be useable for purposes contemplated
hereunder, and in any event shall, within thirty (30) days, (i) amend such
Shelf Registration Statement in a manner reasonably expected to cause the
same to become usable for the purposes contemplated hereunder or obtain
the withdrawal of any order suspending the effectiveness of such Shelf
Registration Statement, as applicable, or (ii) file an additional
Registration Statement (a "Subsequent Shelf Registration Statement") for
an offering to be made on a delayed or continuous basis pursuant to Rule
415 registering the resale from time to time by Holders thereof of all
securities that are Registrable Securities as of the time of such filing
(or, if registration of Registrable Securities not held by Notice Holders
is not permitted by the rules and regulations of the SEC, then registering
the resale from time to time by Notice Holders of their securities that
are Registrable Securities as of the time of such filing). If a Subsequent
Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to (A) cause such Subsequent Shelf Registration
Statement to become effective under the Securities Act as promptly as
practicable after such filing, but in no event later than the Subsequent
Shelf Registration Statement Effectiveness Deadline Date and (B) keep such
Subsequent Shelf Registration Statement (or another Subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period (except to the extent permitted under Section 3(j)).
Each such Subsequent Shelf Registration Statement, if any, shall provide
for the registration of such Registrable Securities for resale by such
Holders in accordance with the reasonable methods of distribution
indicated in their Notice and Questionnaires (provided, however, that in
no event will such methods of distribution take the form of an
underwritten offering of Registrable Securities without the Company's
prior written consent, which the Company may withhold in its sole
discretion).
(c) Subject to Section 2(d)(i)(A), the Company shall supplement and
amend any Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement, if required by the
Securities Act or, to the extent the Company does not reasonably object,
as reasonably requested by the Initial Purchasers or by the Trustee on
behalf of the Holders of the Registrable Securities covered by such Shelf
Registration Statement.
(d)
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(i) Each Holder of Registrable Securities agrees that, if such
Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(d) and Section 3(j). Each Holder of
Registrable Securities wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a completed and executed Notice and Questionnaire
to the Company prior to any attempted or actual distribution of
Registrable Securities under a Shelf Registration Statement. If a
Holder becomes a Notice Holder after the fifth (5th) Business Day
before the date the Initial Shelf Registration Statement becomes
effective under the Securities Act, the Company shall, within thirty
(30) days after the date such Holder became a Notice Holder (or, if
a Suspension Period either is in effect when such Holder became a
Notice Holder or is put into effect within five (5) Business Days
after the date such Holder became a Notice Holder, then within
thirty (30) days after the expiration of such Suspension Period),
(A) file with the SEC a supplement to the related
Prospectus (or, if required by applicable law, a
post-effective amendment to the Shelf Registration Statement
or a Subsequent Shelf Registration Statement), and all other
document(s), in each case as is required so that such Notice
Holder is named as a selling securityholder in a Shelf
Registration Statement and the related Prospectus in such a
manner as to permit such Notice Holder to deliver a Prospectus
to purchasers of the Registrable Securities in accordance with
the Securities Act; provided, however, that, if a
post-effective amendment or a Subsequent Shelf Registration
Statement is required by 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 Subsequent Shelf Registration Statement for such
purpose in any ninety (90) 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;
(B) if, pursuant to Section 2(d)(i)(A), the Company
shall have filed a post-effective amendment to the Shelf
Registration Statement or filed a Subsequent Shelf
Registration Statement, the Company shall use its reasonable
best efforts to cause such post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be,
to become effective under the Securities Act as promptly as
practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date," in the case of a post-effective
amendment, and the "Subsequent Shelf Registration Statement
Effectiveness Deadline Date," in the case of a Subsequent
Shelf Registration Statement) that is forty five (45) days
after the date such post-effective amendment or Subsequent
Shelf Registration Statement, as the case may be, is required
by this Section 2(d) to be filed with the SEC;
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(C) the Company shall provide such Notice Holder, upon
request, with a reasonable number of copies of any documents
filed pursuant to clause (A) above;
(D) the Company shall notify such Notice Holder as
promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment or Subsequent
Shelf Registration Statement filed pursuant to clause (A)
above;
(E) if such Holder became a Notice Holder during a
Suspension Period, or a Suspension Period is put into effect
within five (5) Business Days after the date such Holder
became a Notice Holder, the Company shall so inform such
Notice Holder and shall, subject to the limitations of this
Section 2(d), take the actions set forth in clauses (A), (B)
and (C) above within thirty (30) days after expiration of such
Suspension Period in accordance with Section 3(j); and
(F) if, under the Securities Act, the Company has more
than one option as to the type or manner of making any such
filing, the Company shall make the required filing or filings
in the manner or of a type that the Company reasonably expects
to result in the earliest availability of a Prospectus for
effecting resales of Registrable Securities.
(ii) Notwithstanding anything contained herein to the
contrary, 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; provided,
however, that any Holder that becomes a Notice Holder (regardless of
when such Holder became a Notice Holder) shall be named as a selling
securityholder in a Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d)
or Section 2(a), as applicable.
(e) 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) the Initial Shelf Registration Statement has not become
effective under the Securities Act on or prior to the Effectiveness
Deadline Date;
(ii) either a supplement to a Prospectus, a post-effective
amendment or a Subsequent Shelf Registration Statement is required
to be filed with the SEC and fails to be filed with the SEC within
the prescribed period and in the manner set forth in Section 2(d)
(the date such filing is required to be made being an "Additional
Filing Deadline Date") or, in the case of a post-effective amendment
or a Subsequent Shelf Registration Statement, such post-effective
amendment or Subsequent Shelf Registration Statement does not become
effective under the
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Securities Act by the Amendment Effectiveness Deadline Date or the
Subsequent Shelf Registration Statement Effectiveness Deadline Date,
as the case may be;
(iii) the Initial Shelf Registration Statement or any
Subsequent Registration Statement is filed with the SEC and becomes
effective under the Securities Act but shall thereafter cease to be
effective (without being succeeded immediately by a new Registration
Statement that is filed and immediately becomes effective under the
Securities Act) or usable under the Securities Act for the offer and
sale of Registrable Securities in the manner contemplated by this
Agreement for a period of time (including any Suspension Period)
which shall exceed forty five (45) days in the aggregate in any
three (3) month period or ninety (90) days in the aggregate in any
twelve (12) month period; or
(iv) any Registration Statement or amendment thereto, at the
time it becomes effective under the Securities Act, or any
Prospectus relating thereto, at the time it is filed with the SEC
or, if later, at the time the Registration Statement to which such
Prospectus relates becomes effective under the Securities Act, shall
fail to name each Notice Holder as a selling securityholder in such
a manner as to permit such Notice Holder to sell its Registrable
Securities pursuant to such Registration Statement and Prospectus in
accordance with the Securities Act, which Notice Holder was
required, pursuant to the terms of this Agreement, to be so named
(it being understood that, without limitation, naming such Notice
Holder in a manner that permits such Notice Holder to sell only a
portion of such Notice Holder's Registrable Securities referenced in
such Notice Holder's Notice and Questionnaire shall be deemed to be
an "Event" (as defined below) for purposes of this clause (iv)).
Each of the events of a type described in any of the foregoing clauses (i)
through (iv) are individually referred to herein as an "Event," and
(W) the Effectiveness Deadline Date, in the case of
clause (i) above,
(X) the Additional Filing Deadline Date, the Amendment
Effectiveness Deadline Date or the Subsequent Shelf
Registration Statement Effectiveness Deadline Date, as the
case may be, in the case of clause (ii) above,
(Y) the date on which the duration of the
ineffectiveness or unusability of the Shelf Registration
Statement exceeds the number of days permitted by clause (iii)
above, in the case of clause (iii) above, and
(Z) the date the applicable Registration Statement or
amendment thereto shall become effective under the Securities
Act, or the date the applicable Prospectus is filed with the
SEC or, if later, the time the Registration Statement to which
such Prospectus relates becomes
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effective under the Securities Act, as the case may be, in the
case of clause (iv) above,
are each herein referred to as an "Event Date." Events shall be deemed to
continue until the following dates with respect to the respective types of
Events:
(A) the date the Initial Shelf Registration Statement
becomes effective under the Securities Act, in the case of an
Event of the type described in clause (i) above;
(B) the date a supplement to a Prospectus, a
post-effective amendment or a Subsequent Shelf Registration
Statement, whichever is required, is filed with the SEC (in
the case of a supplement) or becomes effective under the
Securities Act (in the case of a post-effective amendment or a
Subsequent Shelf Registration Statement), in the case of an
Event of the type described in clause (ii) above;
(C) the date the Initial Shelf Registration Statement or
the Subsequent Shelf Registration Statement, as the case
maybe, becomes effective and usable under the Securities Act
again, or the date another Subsequent Shelf Registration
Statement is filed with the SEC pursuant to Section 2(b) and
becomes effective, in the case of an Event of the type
described in clause (iii) above; or
(D) the date a supplement to the Prospectus is filed
with the SEC, or the date a post-effective amendment to the
Registration Statement becomes effective under the Securities
Act, or the date a Subsequent Shelf Registration Statement
becomes effective under the Securities Act, which supplement,
post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, names as selling
securityholders, in such a manner as to permit them to deliver
the related Prospectus to purchasers of Registrable Securities
in the manner contemplated by, and in accordance with, the
Securities Act, all Notice Holders required as herein provided
to be so named, in the case of an Event of the type described
in clause (iv) above.
Notwithstanding anything herein to the contrary, Events described in
clauses (i), (ii) and (iv) above will be deemed to be suspended during any
Suspension Period unless the duration of such Suspension Period exceeds
forty five (45) days in the aggregate in any three (3) month period or
ninety (90) days in the aggregate in any twelve (12) month period.
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have
occurred and are continuing (an "Additional Interest Accrual Period"), the
Company agrees to pay, as additional interest ("additional interest") and
not as a penalty, an amount (the "Additional Interest Amount") at the rate
described below, payable semi-annually on each Additional Interest Payment
Date to Record Holders, to the extent of, for each such Additional
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Interest Payment Date, the unpaid Additional Interest Amount that has
accrued to (but excluding) such Additional interest Payment Date (or, if
the Additional Interest Accrual Period shall have ended prior to such
Additional Interest Payment Date, to, but excluding, the day immediately
after the last day of such Additional Interest Accrual Period); provided,
however, that any unpaid Additional Interest Amount that has accrued with
respect to any Note, or portion thereof, called for Redemption on a
Redemption Date, or purchased by the Company pursuant to a Repurchase at
Holder's Option or Repurchase Upon Repurchase Event on an Option Purchase
Date or Repurchase Date, as the case may be, that is after the close of
business on the Record Date relating to such Additional Interest Payment
Date and before such Additional Interest Payment Date, shall, in each
case, be instead paid, on such Redemption Date, Option Purchase Date or
Repurchase Date, as the case may be, to the Holder who submitted such Note
or portion thereof for Redemption, Repurchase at Holder's Option or
Repurchase Upon Repurchase Event, as the case may be.
The Additional Interest Amount shall accrue at a rate per annum equal to
one quarter of one percent (0.25%) for the ninety (90) day period
beginning on, and including, the Event Date, and thereafter at a rate per
annum equal to one half of one percent (0.50%), of the aggregate principal
amount of the Notes of which such Record Holders were holders of record at
the close of business on the applicable Record Date; provided, however,
that:
(I) no Additional Interest Amounts shall accrue as to any
Covered Security from and after the earlier of (x) the date such
Covered Security is no longer a Registrable Security, (y) in the
case of a Covered Security that is a Note, the date, and to the
extent, such Note is converted in accordance with the Indenture and
(z) the expiration of the Effectiveness Period;
(II) only those Holders (or their subsequent transferees) that
were failed to be named as selling securityholders in the manner
prescribed in Section 2(e)(iv) above shall be entitled to receive
any Additional Interest Amounts that have accrued solely with
respect to an Event of the type described in Section 2(e)(iv) above
(it being understood that this clause (II) shall not impair any
right of any Holder to receive Additional Interest Amounts that have
accrued with respect to an Event other than an Event of the type
described in Section 2(e)(iv) above);
(III) only those Holders (or their subsequent transferees)
whose delivery of a Notice and Questionnaire gave rise to the
obligation of the Company, pursuant to Section 2(d)(i), to file and,
if applicable, make effective under the Securities Act the
supplement, post-effective amendment or Subsequent Shelf
Registration Statement referred to in Section 2(e)(ii) above shall
be entitled to receive any Additional Interest Amounts that have
accrued solely with respect to an Event of the type described in
Section 2(e)(ii) above (it being understood that this clause (Ill)
shall not impair any right of any Holder to receive Additional
Interest
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Amounts that have accrued with respect to an Event other than an
Event of the type described in Section 2(e)(ii) above); and
(IV) if a Covered Security ceases to be outstanding during an
Additional Interest Accrual Period for which an Additional Interest
Amount would be payable with respect to such Covered Security, then
the Additional Interest Amount payable hereunder with respect to
such Covered Security shall be prorated on the basis of the number
of full days such Covered Security is outstanding during such
Additional Interest Accrual Period.
Except as provided in the final paragraph of this Section 2(e), (i) the
rate of accrual of the Additional Interest Amount with respect to any
period shall not exceed the rate provided for in this Section 2(e)
notwithstanding the occurrence of multiple concurrent Events and (ii)
following the cure of all Events requiring the payment by the Company of
Additional Interest Amounts to the Holders pursuant to this Section, the
accrual of Additional Interest Amounts shall cease (without in any way
limiting the effect of any subsequent Event requiring the payment of
Additional Interest Amounts by the Company). All installments of
additional interest shall be paid by wire 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. Subject to any
rights that may arise under Section 6, the parties hereto agree that the
additional interest provided for hereunder shall constitute the sole and
exclusive remedy for an Event that occurs with respect to any Note or with
respect to any ADSs (or Ordinary Shares represented by such ADSs) that
both underlie such Note and are not outstanding, provided, however, that
nothing in this sentence shall affect the rights hereunder of a holder of
outstanding Underlying ADSs.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such
Registrable 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 9(n)).
The parties hereto agree that the additional interest provided for in this
Section 2(e) constitutes a reasonable estimate of the damages in respect
of the Notes that may be incurred by Holders of the Notes by reason of an
Event relating to such Notes, including, without limitation, the failure
of a Shelf Registration Statement to be filed, become effective under the
Securities Act, amended or replaced to include the names of all Notice
Holders or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
If any Additional Interest Amounts are not paid when due, then, to the
extent permitted by law, such overdue Additional Interest Amounts, if any,
shall bear interest,
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compounded semi-annually, until paid at the rate of interest payable with
respect to overdue amounts on the Notes pursuant to Section 2.12 of the
Indenture.
(f) The Trustee shall be entitled, on behalf of Holders, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of any Additional Interest Amount.
(g) The Company agrees that it will not, 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 underwriter in connection with any underwritten
offering of Registrable Securities, and each Holder agrees that it will
not, unless it obtains the prior written consent of the Company and any
such managing underwriter, make any offer relating to the Covered
Securities that would constitute, as the case may be, an "issuer free
writing prospectus," as defined in Rule 433 under the 1933 Act (an "Issuer
Free Writing Prospectus"), or a "free writing prospectus," as defined in
Rule 405 under the 1933 Act, required to be filed with the SEC. The
Company represents that any Issuer Free Writing Prospectus will not
include any information that conflicts with the information contained in
any Shelf Registration Statement or Prospectus and that any Issuer Free
Writing Prospectus, when taken together with the information in the Shelf
Registration Statements and the Prospectuses, 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.
3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or
Shelf Registration Statements in the manner provided in this Agreement and
use its reasonable best efforts to cause each such Shelf Registration
Statement to become effective under the Securities Act and remain
effective under the Securities Act as provided herein; provided, that,
before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Company shall furnish
to the Initial Purchasers and Designated Counsel, if any, copies of all
such documents proposed to be filed and give reasonable consideration to
any comments as the Initial Purchasers, Designated Counsel, if any, or
such counsel shall propose within two (2) Business Days of the delivery of
such copies to the Initial Purchasers, Designated Counsel, if any, and
such counsel. Each Registration Statement that is or is required by this
Agreement to be filed with the SEC shall be filed on Form F-3 if the
Company is then eligible to use Form F-3 for the purposes contemplated by
this Agreement, or, if the Company is not then so eligible to use Form
F-3, shall be on Form F-1 or another appropriate form that is then
available to the Company for the purposes contemplated by this Agreement.
Each such Registration Statement that is filed on Form F-3 shall
constitute an Automatic Shelf Registration Statement if the Company is
then eligible to file an Automatic Registration Statement on Form F-3 for
the purposes contemplated by this Agreement. If, at the time any
Registration Statement is filed with the SEC, the Company is eligible,
pursuant to Rule 430B(b), to omit, from the prospectus that is filed as
part of such Registration
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Statement, the identities of selling securityholders and amounts of
securities to be registered on their behalf, then the Company shall
prepare and file such 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).
(b) 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 or Subsequent Shelf Registration
Statement continuously effective until the expiration of the Effectiveness
Period (except to the extent permitted under Section 3(j)); cause the
related Prospectus to be supplemented by any required Prospectus
supplement and, as so supplemented, to be filed with the SEC pursuant to
Rule 424; and comply with the provisions of the Securities Act applicable
to it with respect to the disposition of all securities covered by each
Shelf Registration Statement during the Effectiveness Period (except to
the extent permitted under Section 3(j)) 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) If, at any time during the Effectiveness Period, any
Registration Statement shall cease to comply with the requirements of the
Securities Act with respect to eligibility for the use of the form on
which such Registration Statement was filed with the SEC (or if such
Registration Statement constituted an Automatic Shelf Registration
Statement at the time it was filed with the SEC and shall thereafter cease
to constitute an Automatic Shelf Registration Statement, or if the Company
shall have received, from the SEC, a notice, pursuant to Rule 401(g)(2)
under the Securities Act, of objection to the use of the form on which
such Registration Statement was filed with the SEC), (i) promptly give
notice to the Notice Holders, Designated Counsel, if any, and to the
Initial Purchasers and (ii) promptly file with the SEC a new Registration
Statement under the Securities Act, or a post-effective amendment to such
Registration Statement, to effect compliance with the Securities Act. The
Company shall use its reasonable best efforts to cause such new
Registration Statement or post-effective amendment to become effective
under the Securities Act as soon as practicable and shall promptly give
notice of such effectiveness to the Notice Holders, Designated Counsel, if
any, and to the Initial Purchasers. Each such new Registration Statement,
if any, shall be deemed, for purposes of this Agreement, to be a
Subsequent Shelf Registration Statement.
(d) During the Effectiveness Period, as promptly as practicable,
give notice to the Notice Holders, the Initial Purchasers, Designated
Counsel, if any:
(i) when any Prospectus, Prospectus supplement, Registration
Statement or post-effective amendment to a Registration Statement
has been filed with the SEC and, with respect to any Registration
Statement or any post-effective amendment, when the same has become
effective under the Securities Act,
(ii) of any request, following the effectiveness of a Shelf
Registration Statement under the Securities Act, by the SEC or any
other governmental
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authority for amendments or supplements to such Shelf Registration
Statement or the related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other governmental
authority of any stop order suspending the effectiveness of any
Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose,
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose,
(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 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 (including Subsequent
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(j)), state that it constitutes a Suspension
Notice, in which event the provisions of Section 3(j) shall apply.
(e) Subject to the terms hereof, use its reasonable best efforts to
(i) prevent the issuance of, and, if issued, to obtain the withdrawal of,
any order suspending the effectiveness of a Shelf Registration Statement
and (ii) obtain 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 prompt notice to
each Notice Holder, the Initial Purchasers and Designated Counsel, if any,
of the withdrawal or lining of any such order or suspension.
(f) Give reasonable consideration to any written request by the
Initial Purchasers or any Notice Holder, to incorporate in a Prospectus
supplement or a post-effective amendment to a Shelf Registration Statement
such information as the Initial Purchasers, such Notice Holder or
Designated Counsel, if any, shall have determined to be required to be
included therein by applicable U.S. law and, if the Company determines
pursuant hereto to give effect to such request, to make any required
filings of such Prospectus supplement or such post-effective amendment as
promptly as practicable.
(g) As promptly as practicable, furnish, upon request, to each
Notice Holder, Designated Counsel, if any, and the Initial Purchasers,
without charge, at least one (1) conformed copy of each Shelf Registration
Statement and each amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in
writing to the Company by such Notice Holder, Designated Counsel or the
Initial Purchasers).
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(h) During the Effectiveness Period, deliver to each Notice Holder,
Designated 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 or
Prospectuses relating to such Registrable Securities and any amendment or
supplement thereto as such Notice Holder or the Initial Purchasers may
reasonably request; and the Company hereby consents (except during such
periods that a Suspension Notice is outstanding and has not been revoked)
to the use of such Prospectus and 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.
(i) Prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its reasonable best
efforts to register or qualify or cooperate with the Notice Holders 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); use its reasonable best 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 such
jurisdictions of such Registrable Securities in the manner set forth in
the relevant Shelf Registration Statement and the related Prospectus;
provided, however, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service
of process in suits, other than those arising out of and limited solely to
the offering or sale of Registrable Securities, in any jurisdiction where
it is not now so subject.
(j) Upon: (A) the occurrence or existence of any pending or
prospective corporate development (a "Material Event") that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of any Shelf Registration Statement and the related
Prospectus; (B) the issuance by the SEC of a stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation of
proceedings with respect to any Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act; or (C) the occurrence of any event or
the existence of any fact as a result of which any 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
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(i) in the case of clause (A) or (C) above, subject to the
next sentence, as promptly as practicable, prepare and file, if
necessary pursuant to the Securities Act, a post-effective amendment
to such Shelf Registration Statement or a
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supplement to such 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 necessary in order 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 provided by such Notice Holder to the Company for use in such
Prospectus, including, without limitation, the Holder Information),
and, in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use its reasonable best
efforts to cause it to become effective under the Securities Act as
promptly as practicable, and
(ii) give notice to the Notice Holders, the Initial Purchasers
and Designated Counsel, if any, that the availability of the Shelf
Registration Statement is suspended (a "Suspension Notice") (and,
upon receipt of any Suspension Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to such Shelf
Registration Statement until such Notice Holder's receipt of copies
of the supplemented or amended Prospectus provided for in clause (i)
above or until such Notice Holder is advised in writing by the
Company that the Prospectus may be used).
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed (x) in the case of clause (A) above, as soon
as, in the reasonable discretion of the Company, such suspension is no
longer appropriate, (y) in the case of clause (B) above, as promptly as is
practicable, and (z) in the case of clause (C) above, as soon as, in the
reasonable judgment of the Company, the 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 the Prospectus does not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The period
during which the availability of the Shelf Registration Statement and any
Prospectus may be suspended (the "Suspension Period") without the Company
incurring any obligation to pay additional interest pursuant to Section
2(e) shall not exceed forty five (45) days in the aggregate in any three
(3) month period or ninety (90) days in the aggregate in any twelve (12)
month period.
(k) Make available for inspection during normal business hours by
representatives for the Notice Holders (and any underwriters participating
in any disposition pursuant to any Shelf Registration Statement to the
extent permitted hereunder) and any broker-dealers, attorneys and
accountants retained by such Notice Holders (or any such underwriters, if
applicable), all relevant financial and other records
-18-
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 available for inspection
during normal business hours all relevant information reasonably requested
by such representatives for the Notice Holders, or any such underwriters,
broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided, however, that such persons shall first agree in
writing with the Company that such person will not engage in any
transaction involving Company securities in violation of applicable law
(including without limitation federal securities laws prohibiting trading
on the basis of material non-public information) and that any information
that is confidential at the time of delivery of such information shall be
kept confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement, unless (i) disclosure
of such information is required by court or administrative order or is
necessary to respond to inquiries of governmental or regulatory
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) or necessary to
defend or prosecute a claim brought against or by any such persons (e.g.,
to establish a "due diligence" defense), (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 or is not
otherwise under a duty of trust to the Company; 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 Designated Counsel.
(l) Comply with all applicable rules and regulations of the SEC to
the extent and so long as they are applicable to any Shelf Registration
Statement; and make generally available to its securityholders earnings
statements covering a period of twelve (12) 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).
(m) 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 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 (2) Business Days prior to any sale of such
Registrable Securities.
(n) Provide a CUSIP number for all Registrable Securities covered by
a Shelf Registration Statement not later than the effective date of the
Initial Shelf Registration Statement and provide the Trustee and the
Depository with certificates, if required, for the Registrable Securities
that are in a form eligible for deposit with The Depository Trust Company.
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(o) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(p) Upon the filing of the Initial Shelf Registration Statement, and
upon the effectiveness under the Securities Act of the Initial Shelf
Registration Statement, if the effective date is different from the filing
date, announce the same, in each case by release through a reputable
national newswire service in the United States.
(q) Except as otherwise provided herein, take all actions as are
necessary, or reasonably requested by the Holders of a majority of the
Registrable Securities being sold, in order to expedite or facilitate
disposition of the Registrable Securities.
(r) Cause the Indenture to be qualified under the TIA not later than
the effective date of the Initial Shelf Registration Statement; and, in
connection therewith, cooperate with the Trustee to effect such changes to
the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner.
(s) Use its reasonable best efforts to cause the Underlying ADSs to
be listed on The New York Stock Exchange.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities 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(d) 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, as of the time of such sale,
the Holder Information of such Holder furnished in writing by or on behalf of
such Holder to the Company does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
in such Holder Information, in the light of the circumstances under which they
were made, not misleading. Each Holder agrees to keep confidential the receipt
of any Suspension Notice and the contents thereof, except as required pursuant
to applicable law.
5. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Section 2 and Section 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or declared effective under the Securities
Act. Such fees and expenses ("Registration Expenses") shall include, without
limitation, (i) all registration and filing fees and expenses (including,
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without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal securities laws and state securities or Blue Sky laws,
if any, (including, without limitation, reasonable fees and disbursements of
Designated Counsel, if any, in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions), (ii) all expenses
of the Company in preparing or assisting in preparing, word processing, printing
and distributing any Shelf Registration Statement, any Prospectus, any
amendments or supplements thereto, any securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iii) all fees and disbursements of counsel for the Company, (iv) all fees and
disbursements of Designated Counsel, the selection of whom shall be reasonably
agreed by the Company, (v) all fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Ordinary Shares, and
(vi) Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company, the expense of any annual audit or quarterly review, the fees and
expenses incurred in connection with the listing by the Company of the
Registrable Securities on any securities exchange or quotation system on which
similar securities of the Company are then listed and the fees and expenses of
any person, including, without limitation, special experts, retained by the
Company. If the Company shall, pursuant to Rule 456(b), defer payment of any
registration fees due under the Securities Act with respect to any Registration
Statement, the Company agrees that it shall pay the fees applicable to such
Registration Statement within the time required by Rule 456(b)(1)(i) (without
reliance on the proviso to Rule 456(b)(1)(i)) and in compliance with Rule 456(b)
and Rule 457(r). Each Holder shall pay all brokerage fees and commissions
incurred by it, all transfer taxes incurred by it, the fees and expenses of any
advisors the Holder engages and all similar fees and costs incurred by such
Holder relating to such Holder's disposition of Registrable Securities.
6. Indemnification, Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Initial Purchaser, each Holder, each person (a "Controlling Person"), if
any, who controls, is controlled by or is under common control with any
Initial Purchaser or Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the respective
Affiliates (including joint venture counterparts), officers, directors,
partners, employees, representatives and agents of any Initial Purchaser,
the Holders or any Controlling Person (each, an "Indemnified Party"), from
and against any loss, damage, expense, liability, claim or any actions in
respect thereof (including the reasonable cost of investigation) which
such Indemnified Party may incur or become subject to under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or Issuer Free Writing Prospectus,
including any document incorporated by reference therein, or in any
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amendment or supplement thereto or in any preliminary prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in any Registration Statement or in
any amendment or supplement thereto or necessary to make the statements
therein not misleading, or arises out of or is based upon any omission or
alleged omission to state a material fact necessary in order to make the
statements made in any Prospectus, Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, in
the light of the circumstances under which such statements were made, not
misleading, and the Company shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, damage, expense,
liability, claim or action in respect thereof; provided, however, that the
Company shall not be required to provide any indemnification pursuant to
this Section 6(a) in any such case insofar as any such loss, damage,
expense, liability, claim or action arises out of or is based upon any
untrue statement or omission or alleged untrue statement or omission of a
material fact contained in, or omitted from, and in conformity with
information furnished in writing by or on behalf of an Initial Purchaser
or a Holder to the Company expressly for use in, any Registration
Statement, Prospectus or Issuer Free Writing Prospectus, including,
without limitation, information provided to the Company by such Holder in
a Notice and Questionnaire; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party; provided further, however, that
no Initial Purchaser or 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 Registration
Statement, of Registrable Securities by such Initial Purchaser or Holder,
as the case may be, during a Suspension Period, provided such Initial
Purchaser or Holder, as the case may be, received, prior to such
disposition, a Suspension Notice with respect to such Suspension Period.
(b) Each Holder, severally and not jointly, agrees to indemnify,
defend and hold harmless the Company, its directors, officers, employees,
representatives and agents and any person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Company Indemnified Party") from and against any
loss, damage, expense, liability, claim or any actions in respect thereof
(including the reasonable cost of investigation) which such Company
Indemnified Party may incur or become subject to under the Securities Act,
the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in, and
in conformity with information (the "Holder Information") furnished in
writing by or on behalf of such Holder to the Company expressly for use
in, any Registration Statement or Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in
connection with such Holder Information, which material fact was not
contained in such Holder Information, and which material fact was either
required to be stated in any Registration Statement or Prospectus, or any
amendment or supplement thereto, or necessary to make such Holder
Information not misleading; (B) a sale, by such Holder, pursuant to a
Registration Statement, of Registrable Securities during a Suspension
Period, provided that the Company shall have theretofore provided such
Holder with a Suspension Notice with respect to such Suspension Period; or
(C) a public sale of Registrable Securities by such Holder without
delivery, if required by the Securities Act, of the most recent applicable
Prospectus provided to such Holder by the Company pursuant to Section 3(h)
or Section 2(d)(i)(C); and, subject to the limitation set forth in the
immediately preceding clause, each Holder shall reimburse, as incurred,
the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating
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or defending any loss, damage, expense, liability, claim or action in
respect thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company or any of
its controlling persons. In no event shall the liability of any selling
Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale,
pursuant to the Registration Statement, of the Registrable Securities
giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is
brought against any person in respect of which indemnity may be sought
pursuant to either Section 6(a) or Section 6(b), such person (the
"Indemnified Party") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Party") in writing of the
institution of such Proceeding and the Indemnifying Party shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to the Indemnified Party and payment of all fees and expense;
provided, however, that the omission to so notify such Indemnifying Party
shall not relieve such Indemnifying Party from any liability which it may
have to such Indemnified Party or otherwise. Such Indemnified Party shall
have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Indemnified
Party unless the employment of such counsel shall have been authorized in
writing by such Indemnifying Party in connection with the defense of such
Proceeding or such Indemnifying Party shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to defend
such Proceeding or such Indemnified Party shall have reasonably concluded
that there may be one or more defenses available to it that are different
from, additional to or in conflict with those available to such
Indemnifying Party (in which case such Indemnifying Party shall not have
the right to direct the defense of such Proceeding on behalf of the
Indemnified Party, in any of which events such fees and expenses shall be
borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for
the expenses of more than one separate counsel in any one Proceeding or
series of related Proceedings (in additional to any local counsel)
representing the Indemnified Parties who are parties to such action). An
Indemnifying Party shall not be liable for any settlement of such
Proceeding effected without the written consent of such Indemnifying
Party, but if settled with the written consent of such Indemnifying Party,
such Indemnifying Party agrees to indemnify and hold harmless an
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
such Indemnified Party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of
the aforesaid request, (ii) such Indemnifying Party shall not have fully
reimbursed such 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 any Indemnified Party, effect any settlement of any
pending or threatened Proceeding in respect of which
-23-
such 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 and does not include an admission of fault or culpability or a
failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under Section 6(a) or Section 6(b), or
insufficient to hold such Indemnified Party harmless, in respect of any
losses, damages, expenses, liabilities, claims or actions referred to
therein, then each applicable Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, damages, expenses,
liabilities, claims or actions (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand,
and by the Holders or the Initial Purchasers, on the other hand, from the
offering of the Registrable Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one
hand, and of the Holders or the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities, claims or actions, as well as any other
relevant equitable considerations. The relative fault of the Company, on
the one hand, and of the Holders or the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company or by the Holders or the Initial Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, damages, expenses, liabilities,
claims and actions referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in Section 6(d) above. Notwithstanding the provisions of this
Section 6, no Holder shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities
giving rise to such contribution obligation and sold by such Holder were
offered to the public exceeds the amount of any damages which it 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. The Holders' respective obligations
to contribute pursuant to this Section 6 are several in proportion to the
respective amount of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint. The remedies provided for in this
Section 6 are not exclusive and shall not limit any
-24-
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(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 or the Initial Purchasers or any person
controlling any Holder or Initial Purchaser, or the Company, or the
Company's officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Security by any Holder.
7. Information Requirements.
(a) The Company covenants that, if at any time before the end of the
Effectiveness Period it is not subject to the reporting requirements of
the Exchange Act, it will cooperate with any Holder of Registrable
Securities and take such further action as any Holder of Registrable
Securities may reasonably request in writing (including, without
limitation, making such 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 limitations of the exemptions provided by Rule
144, Rule 144A or Regulation S 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 the Company 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 with the SEC pursuant
to Section 13 or Section 15(d) of Exchange Act.
(b) During the Effectiveness Period, the Company shall use its
commercially reasonable efforts to comply with all requirements set forth
in the instructions to Form F-3 in order to allow the Company to be
eligible to file registration statements on Form F-3. The Company shall
use its commercially reasonable efforts to remain eligible, pursuant to
Rule 430B(b), to omit, from the prospectus that is filed as part of a
Shelf Registration Statement, the identities of selling securityholders
and amounts of securities to be registered on their behalf.
8. Underwritten Registrations.
Notwithstanding anything herein to the contrary, in no event shall
Registrable Securities be offered and sold pursuant hereto through a Shelf
Registration Statement pursuant to an underwritten offering without the prior
written agreement of the Company. No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such person's
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the Company and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements. The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 5 hereof, expenses of their own counsel. The Company shall pay all
-25-
expenses customarily borne by issuers in an underwritten offering, including but
not limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Initial Purchasers and the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Initial Purchaser or Holder may obtain such
relief as may be required to specifically enforce the Company's
obligations under this Agreement. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate. Notwithstanding the foregoing two sentences, this Section
9(a) shall not apply to the subject matter referred to in and contemplated
by Section 2(e).
(b) No Conflicting Agreements. The Company will not on or after the
date of this Agreement, enter into, any agreement with respect to the
Company's 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 are not in conflict with the rights
granted to the holders of the Company's securities under any other
agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of outstanding Registrable Securities;
provided, however, that, no consent is necessary from any of the Holders
in the event that this Agreement is amended, modified or supplemented for
the purpose of curing any ambiguity, defect or inconsistency that does not
adversely affect the rights of any Holders. 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 of Registrable
Securities whose securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders
of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Shelf Registration Statement; provided, however,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities 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 9(c),
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.
-26-
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by
telecopier, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (A) when made,
if made by hand delivery, (B) upon confirmation, if made by telecopier,
(C) one (1) Business Day after being deposited with such courier, if made
by overnight courier or (D) 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:
Suntech Power Holdings Co., Ltd.
▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
People's Republic of China
Attention: Chief Financial Officer
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇-▇▇▇▇
(iii) if to the Initial Purchasers, to:
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Syndicate Department
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
68th Floor, ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: Syndicate Department
and
ABN AMRO Rothschild
41st Floor, ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: Head of Equity Capital Markets
-27-
or to such other address as such person may have furnished to the other
persons identified in this Section 9(d) in writing in accordance
herewith.
(e) Majority of Registrable Securities. For purposes of
determining what constitutes holders of a majority of Registrable
Securities, as referred to in this Agreement, a majority shall mean
holders of a majority of the Underlying Ordinary Shares that
constitute Registrable Securities, treating (i) each holder of Notes
that constitute Registrable Securities as the holder of the
Underlying Ordinary Shares represented by the Underlying ADSs
issuable upon conversion of such Notes as if such Notes were
convertible solely into ADSs (without regard to the Company's right
to elect full or partial cash settlement upon conversion of the
Notes pursuant to the Indenture), and (ii) treating each holder of
ADSs (if any) that constitute Registrable Securities as the holder
of the Underlying Ordinary Shares represented by such ADSs.
(f) 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 terms is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent
Holders of Registrable Securities, if the Initial Purchasers or 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.
(g) Third Party Beneficiaries. Each Holder shall be third
party beneficiary to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly
to the extent it may deem such enforcement necessary or advisable to
protect its rights hereunder. The Trustee shall be entitled to the
rights granted to it pursuant to this Agreement and shall be bound
by the terms hereof.
(h) Successors and Assigns. Any person who purchases any
Covered Security from any Initial Purchaser or from any Holder shall
be deemed, for purposes of this Agreement, to be an assignee of such
Initial Purchaser or such Holder, as the case may be. This Agreement
shall inure to the benefit of and be binding upon the respective
successors and assigns of each of the parties hereto and shall inure
to the benefit of and be binding upon each Holder of any Covered
Security.
(i) 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.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
-28-
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
(l) 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 reasonable 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.
(m) Entire Agreement. This Agreement is intended by the
parties hereto 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 have any rights, duties or obligations other than those
specifically set forth in this Agreement.
(n) 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,
Section 5 or Section 6 hereof and the obligations to make payments
of and provide for additional interest under Section 2(e) hereof to
the extent such additional interest accrued prior to the end of the
Effectiveness Period and to the extent any overdue additional
interest accrues in accordance with the last paragraph of such
Section 2(e), each of which shall remain in effect in accordance
with its terms.
(o) Submission to Jurisdiction. Except as set forth below, no
proceeding, claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
("Claim") may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the City
and County of New York or in the United States District Court for
the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and the Company
hereby consents to the jurisdiction of such courts and personal
service with respect thereto. The Company hereby consents to
personal jurisdiction, service and venue in any court in which any
Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Initial Purchaser. THE
COMPANY, EACH INITIAL PURCHASER AND EACH HOLDER HEREBY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING
TO THIS AGREEMENT. The Company, each Initial Purchaser and each
Holder agree that a final judgment in any such Proceeding brought in
any such court shall
-29-
be conclusive and binding upon such party and may be enforced in any
other courts in the jurisdiction of which such party is or may be
subject, by suit upon such judgment. The Company hereby appoints,
without power of revocation, CT Corporation System at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to accept and
acknowledge on its behalf service of any and all process which may
be served in any action, proceeding or counterclaim in any way
relating to or arising out of this Agreement.
(p) Judgment Currency. In respect of any judgment or order
given or made for any amount due hereunder that is expressed and
paid in a currency (the "judgment currency") other than United
States dollars, the Company agrees to indemnify the Initial
Purchasers against any loss incurred by such Initial Purchasers as a
result of any variation as between (a) the rate of exchange at which
the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (b) the rate
of exchange at which such Initial Purchaser is able to purchase
United States dollars with the amount of the judgment currency
actually received by such Initial Purchaser. If the United States
dollars so purchased are greater than the sum originally due to such
Initial Purchaser hereunder, such Initial Purchaser agrees to pay to
the Company an amount equal to the excess of the United States
dollars so purchased over the sum originally due to such Initial
Purchaser hereunder. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the
purchase of or conversion into United States dollars.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
-30-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
Very truly yours,
SUNTECH POWER HOLDINGS CO., LTD.
By:____________________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT]
Accepted and agreed to as of the date
first above written:
UBS Securities LLC
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
By: ________________________________
Name:
Title:
ABN AMRO Bank N.V. Hong Kong Branch and N M Rothschild & Sons (Hong Kong)
Limited, each trading as ABN AMRO Rothschild
By: ________________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT]