UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 20, 2015
CF Industries Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation) |
001-32597
(Commission File Number) |
20-2697511
(I.R.S. Employer Identification No.) |
4 Parkway North, Suite 400
Deerfield, Illinois (Address of principal executive offices) |
60015 (Zip Code) |
Registrant's telephone number, including area code: (847) 405-2400
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Item 1.01 Entry into a Material Definitive Agreement.
On December 20, 2015, CF Industries Holdings, Inc., a Delaware corporation ("CF"), entered into a Second Amendment to the Combination Agreement (the "Second Amendment to the Combination Agreement") by and among CF, Darwin Holdings Limited, a private company limited by shares incorporated under the law of England ("Darwin Holdings"), Beagle Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect subsidiary of Darwin Holdings ("Beagle MergerCo"), OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of the Netherlands ("OCI"), CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands ("New CF") and Finch Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect, subsidiary of New CF ("MergerCo").
The Second Amendment to the Combination Agreement amends the combination agreement, dated as of August 6, 2015 (as amended on November 6, 2015, the "Original Agreement", as amended on November 6, 2015 and December 20, 2015, the "Combination Agreement"), by and among CF, Darwin Holdings, Beagle MergerCo and OCI, to, among others, reflect the addition of New CF and MergerCo as parties to the Original Agreement and to remove Darwin Holdings and Beagle MergerCo as parties to the Original Agreement.
In connection with the Second Amendment to the Combination Agreement, New CF also entered into an Amended and Restated Shareholders' Agreement (the "Amended and Restated Shareholders' Agreement"), by and among New CF, OCI, Capricorn Capital B.V., a private limited company incorporated under the law of the Netherlands ("Capricorn"), Leo Capital B.V., a private limited company incorporated under the law of the Netherlands ("Leo") and Aquarius Investments B.V., a private limited company incorporated under the law of the Netherlands (together with Leo and Capricorn, the "Shareholders"). The Amended and Restated Shareholders' Agreement amends the Shareholders' Agreement (the "Shareholders' Agreement"), dated as of August 6, 2015, by and among Darwin Holdings, OCI and the Shareholders to, among others, add New CF as a party to the agreement and to remove Darwin Holdings as a party. The Amended and Restated Shareholders' Agreement also removed (i) the director appointment rights previously provided in the Shareholders' Agreement and (ii) the Shareholders' obligation, subject to certain exceptions, to vote in accordance with the recommendation of the board of directors of New CF.
The Irrevocable Undertakings that CF and OCI entered into with each of the Shareholders remain in effect.
The Combination Agreement and Amended and Restated Shareholders' Agreement (the "Agreements") contain representations and warranties by the parties thereto. These representations and warranties were made solely for the benefit of the other parties to such Agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in the applicable Agreement by disclosures that were made to the other party in connection with the negotiation of such Agreement; (iii) may apply contract standards of "materiality" that are different from "materiality" under the applicable securities laws; and (iv) were made only as of the date of the applicable Agreement or such other date or dates as may be specified in such Agreement. CF acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this Current Report on Form 8-K not misleading.
The foregoing descriptions of the Combination Agreement and the Amended and Restated Shareholders' Agreement do not purport to be complete and are qualified in their entirety by reference
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to the Agreements, copies of which are attached as Exhibit 2.1 and 2.2, respectively, hereto and are incorporated herein by reference.
NO OFFER OR SOLICITATION
This communication is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote or approval in any jurisdiction pursuant to or in connection with the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, and otherwise in accordance with applicable law.
ADDITIONAL INFORMATION
The new holding company ("New CF") for the combination of CF Industries Holdings, Inc. ("CF Industries") and the European, North American and global distribution businesses of OCI N.V. ("OCI") will file with the SEC an amended registration statement on Form S-4 (SEC File No. 333-207847) that will include a preliminary proxy statement of CF Industries and a preliminary shareholders circular of OCI, each of which will also constitute a preliminary prospectus of New CF. The registration statement has not been declared effective by the SEC. The definitive proxy statement/prospectus will be delivered to CF Industries shareholders and the definitive shareholders circular/prospectus will be delivered to OCI shareholders as required by applicable law after the registration statement becomes effective. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS, THE SHAREHOLDERS CIRCULAR/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of the proxy statement/prospectus, the shareholders circular and other documents filed with the SEC by New CF and CF Industries through the website maintained by the SEC at www.sec.gov. In addition, investors and security holders will be able to obtain free copies of the proxy statement/prospectus, the shareholders circular and other documents filed by CF Industries and New CF with the SEC by contacting CF Industries Investor Relations at: CF Industries Holdings, Inc., c/o Corporate Communications, 4 Parkway North, Suite 400, Deerfield, Illinois, 60015 or by calling (847) 405-2542.
PARTICIPANTS IN THE SOLICITATION
CF Industries and New CF and their respective directors and executive officers and OCI and its executive directors and non-executive directors may be deemed to be participants in the solicitation of proxies from the stockholders of CF Industries in connection with the proposed transaction. Information regarding the directors and executive officers of CF Industries is contained in CF Industries' proxy statement for its 2015 annual meeting of stockholders, filed with the SEC on April 2, 2015, and CF Industries' Current Report on Form 8-K filed with the SEC on June 25, 2015. Information about the executive directors and non-executive directors of OCI is contained in OCI's annual report for the year ended December 31, 2014, available on OCI's web site at www.oci.nl. Other information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the stockholders of CF Industries in connection with the proposed transaction, including a description of their direct or indirect interests, by security holdings or otherwise, is set forth in the preliminary proxy statement/prospectus included in the registration statement on Form S-4 filed by Darwin Holdings Limited on November 6, 2015 (SEC File No. 333-207847).
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FORWARD-LOOKING STATEMENTS
All statements in this communication by CF Industries Holdings, Inc. (together with its subsidiaries, the "Company"), other than those relating to historical facts, are forward-looking statements. Forward-looking statements can generally be identified by their use of terms such as "anticipate," "believe," "could," "estimate," "expect," "intend," "may," "plan," "predict" "project" and similar terms and phrases, including references to assumptions. Forward-looking statements are not guarantees of future performance and are subject to a number of assumptions, risks and uncertainties, many of which are beyond the Company's control, which could cause actual results to differ materially from such statements. These statements may include, but are not limited to, statements about the benefits, expected timing of closing and other aspects of the proposed acquisition (the "OCI Transaction") by the Company from OCI N.V. ("OCI") of OCI's European, North American and global distribution businesses (the "ENA Business") and the proposed strategic venture (the "CHS Strategic Venture") with CHS Inc. ("CHS"); statements about future strategic plans; and statements about future financial and operating results.
Important factors that could cause actual results to differ materially from those in the forward-looking statements include, among others, risks and uncertainties arising from the possibility that the CHS Strategic Venture as contemplated may be delayed or may not take effect at all; difficulties associated with the operation or management of the CHS Strategic Venture; risks and uncertainties relating to the market prices of the fertilizer products that are the subject of the supply agreement over the life of the supply agreement and risks that disruptions from the CHS Strategic Venture as contemplated will harm the Company's other business relationships; the volatility of natural gas prices in North America and Europe; the cyclical nature of the Company's business and the agricultural sector; the global commodity nature of the Company's fertilizer products, the impact of global supply and demand on the Company's selling prices, and the intense global competition from other fertilizer producers; conditions in the U.S. and European agricultural industry; difficulties in securing the supply and delivery of raw materials, increases in their costs or delays or interruptions in their delivery; reliance on third party providers of transportation services and equipment; the significant risks and hazards involved in producing and handling the Company's products against which the Company may not be fully insured; risks associated with cyber security; weather conditions; the Company's ability to complete its production capacity expansion projects on schedule as planned, on budget or at all; risks associated with expansions of the Company's business, including unanticipated adverse consequences and the significant resources that could be required; potential liabilities and expenditures related to environmental, health and safety laws and regulations and permitting requirements; future regulatory restrictions and requirements related to greenhouse gas emissions; the seasonality of the fertilizer business; the impact of changing market conditions on the Company's forward sales programs; risks involving derivatives and the effectiveness of the Company's risk measurement and hedging activities; the Company's reliance on a limited number of key facilities; risks associated with the Company's Point Lisas Nitrogen Limited joint venture; acts of terrorism and regulations to combat terrorism; risks associated with international operations; losses on the Company's investments in securities; deterioration of global market and economic conditions; and the Company's ability to manage its indebtedness.
Other important factors, relating to the OCI Transaction, that could cause actual results to differ materially from those in the forward-looking statements include, among others: the risk that the OCI Transaction is not accorded the tax and accounting treatment anticipated by the Company; the effect of future regulatory or legislative actions on the new holding company ("New CF"), the Company and the ENA Business; risks and uncertainties relating to the ability to obtain the requisite approvals of stockholders of the Company and OCI with respect to the OCI Transaction; the risk that governmental or regulatory actions delay the OCI Transaction or result in the imposition of conditions that could reduce the anticipated benefits from the OCI Transaction or cause the parties to abandon the OCI
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Transaction; the risk that a condition to closing of the OCI Transaction may not be satisfied; the length of time necessary to consummate the OCI Transaction; the risk that the Company and the ENA Business are subject to business uncertainties and contractual restrictions while the OCI Transaction is pending (including the risk that the Company is limited from engaging in alternative transactions and could be required in certain circumstances to pay a termination fee); the risk that the OCI Transaction or the prospect of the OCI Transaction disrupts or makes it more difficult to maintain existing relationships or impedes establishment of new relationships with customers, employees or suppliers; diversion of management time on transaction-related issues; the risk that New CF, the Company and the ENA Business are unable to retain and hire key personnel; the risk that closing conditions related to the Natgasoline joint venture may not be satisfied; the risk that the Company, New CF and the ENA Business will incur costs related to the OCI Transaction that exceed expectations; the risk that the businesses of the Company and the ENA Business will not be integrated successfully; the risk that the cost savings and any other synergies from the OCI Transaction may not be fully realized or may take longer to realize than expected; the risk that access to financing, including for refinancing of indebtedness of the ENA Business or the Company, may not be available on a timely basis and on reasonable terms; unanticipated costs or liabilities associated with the OCI Transaction-related financing; the risk that the credit ratings of New CF and the Company, including such ratings taking into account the OCI Transaction and related financing, may differ from the Company's expectations; risks associated with New CF's management of new operations and geographic markets; and the risk that the ENA Business is unable to complete its current production capacity development and improvement projects on schedule as planned, on budget or at all.
More detailed information about factors that may affect the Company's performance and could cause actual results to differ materially from those in any forward-looking statements may be found in CF Industries Holdings, Inc.'s filings with the Securities and Exchange Commission (the "SEC"), including CF Industries Holdings, Inc.'s most recent periodic report filed on Form 10-Q, which is available in the Investor Relations section of the Company's web site. Forward-looking statements are given only as of the date of this communication and the Company disclaims any obligation to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
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Item 9.01 Financial Statements and Exhibits.
Exhibit No. | Description | ||
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2.1 | Second Amendment to the Combination Agreement, dated December 20, 2015, by and among CF Industries Holdings, Inc., Darwin Holdings Limited, Beagle Merger Company LLC, OCI N.V., CF B.V. and Finch Merger Company LLC(1) | ||
2.2 | Second Amendment to the Shareholders' Agreement, dated December 20, 2015, by and among Darwin Holdings Limited, OCI N.V., CF B.V., Capricorn Capital B.V., Leo Capital B.V., and Aquarius Investments B.V. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 23, 2015 | ||||||
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CF INDUSTRIES HOLDINGS, INC. |
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By: |
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/s/ DOUGLAS C. BARNARD |
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Name: | Douglas C. Barnard | |||||
Title: | Senior Vice President, General Counsel, and Secretary |
Exhibit No. | Description | ||
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2.1 | Second Amendment to the Combination Agreement, dated December 20, 2015, by and among CF Industries Holdings, Inc., Darwin Holdings Limited, Beagle Merger Company LLC, OCI N.V., CF B.V. and Finch Merger Company LLC(2) | ||
2.2 | Second Amendment to the Shareholders' Agreement, dated December 20, 2015, by and among Darwin Holdings Limited, OCI N.V., CF B.V., Capricorn Capital B.V., Leo Capital B.V., and Aquarius Investments B.V. |
SECOND AMENDMENT TO COMBINATION AGREEMENT
THIS SECOND AMENDMENT, dated as of December 20, 2015 (this " Second Amendment "), to the Combination Agreement, dated as of August 6, 2015 (the " Original Agreement "), by and among CF Industries Holdings, Inc., a Delaware corporation (" Cambridge "), Darwin Holdings Limited, a private company limited by shares incorporated under the law of England (" Darwin Holdings "), Beagle Merger Company LLC, a Delaware limited liability company (" Beagle MergerCo "), OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of the Netherlands (" Oxford "), CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, with its corporate seat ( statutaire zetel ) in Amsterdam, the Netherlands (" Holdco ") and Finch Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect, subsidiary of Holdco (" MergerCo "). Each of Cambridge, Oxford, Darwin Holdings and Beagle MergerCo are referred to herein as a " Party " and together the " Parties ". Capitalized terms used but not defined herein shall have the meanings given to such terms in the Combination Agreement.
WHEREAS, the Parties entered into the Original Agreement;
WHEREAS, the Parties entered into an Amendment to the Original Agreement, dated as of November 6, 2015 (the " Amendment ", and the Original Agreement as amended by the Amendment, the " Combination Agreement ");
WHEREAS, the Parties desire to amend the Combination Agreement to reflect the addition of CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, with its corporate seat ( statutaire zetel ) in Amsterdam, the Netherlands, and Finch Merger Company LLC, a Delaware limited liability company, as parties to the Combination Agreement and to remove Darwin Holdings and Beagle MergerCo as parties to the Combination Agreement;
WHEREAS, after giving effect to this Second Amendment, all references in the Combination Agreement to " Holdco " shall mean CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, with its corporate seat ( statutaire zetel ) in Amsterdam, the Netherlands;
WHEREAS, after giving effect to this Second Amendment, all references in the Combination Agreement to " MergerCo " shall mean Finch Merger Company LLC, a Delaware limited liability company; and
WHEREAS, pursuant to Section 12.7 of the Combination Agreement, the Parties desire to amend certain terms of the Combination Agreement, as set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the foregoing promises and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, and subject to the terms and conditions hereof, the parties hereto agree as follows:
This Combination Agreement (this " Agreement "), dated as of August 6, 2015, is entered into by and among CF Industries Holdings, Inc., a Delaware corporation (" Cambridge "), CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, with its corporate seat ( statutaire zetel ) in Amsterdam, the Netherlands, which, in connection with the Closing, will convert into a public company with limited liability ( naamloze vennootschap ) in accordance with the provisions of this Agreement (" Holdco "), Finch Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect, subsidiary of Holdco (" MergerCo ") and
OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of the Netherlands (" Oxford "). Each of Cambridge, Oxford, Holdco and MergerCo are referred to herein as a "Party" and together the "Parties".
WHEREAS, MergerCo's sole member and Holdco's board of directors (the " Holdco Board ") have each unanimously determined that it is advisable and in the best interests of MergerCo's sole member and Holdco's sole shareholder, respectively, to enter into the Merger and have each unanimously approved the Merger, this Agreement and, to the extent applicable, the other Transactions, in accordance with the DLLCA and the DCC, as applicable;
WHEREAS, MergerCo's sole member has approved this Agreement prior to MergerCo's entry into this Agreement, and immediately following Holdco's entry into this Agreement, Holdco's sole shareholder will act by written consent to approve this Agreement; and
Subject to the terms and conditions of this Agreement, at or prior to the Closing, prior to the Conversion and prior to the Effective Time, Oxford shall contribute, transfer, convey, assign and deliver or cause to be contributed, transferred, conveyed, assigned and delivered to Holdco, and Holdco shall acquire, the Holdco-Purchased Equity Interests, in each case, free and clear of any Liens.
Each holder of shares of Cambridge Common Stock that are represented by Book Entry Shares or Certificates shall be entitled to receive in exchange for such holder's shares of Cambridge Common Stock that are represented by Book Entry Shares or Certificates, upon surrender to the Exchange Agent of a Book Entry Share or Certificate, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions (i) the Merger Consideration deliverable in respect of such holder's shares of Cambridge Common Stock represented by such holder's properly surrendered Book Entry Shares or Certificates in accordance with Section 2.4 and (ii) any cash dividends or other distributions that such holder has the right to receive pursuant to Section 2.5(f), and Book Entry Shares or Certificates so surrendered shall forthwith be canceled, and Holdco's register of shareholders shall be updated accordingly. No interest will be paid or accrued on any Merger Consideration or on any unpaid dividends and distributions payable to holders of shares of Cambridge Common Stock.
Prior to the Effective Time, Cambridge shall take all necessary action for the adjustment of Cambridge Stock Awards under this Section 2.7; provided that such actions shall expressly be conditioned upon the consummation of the Merger and the other Transactions and shall be of no effect if this Agreement is terminated; and, provided further , that notwithstanding anything to the contrary in this Section 2.7 or otherwise in this Agreement, any assumption, adjustment or other treatment of the Cambridge Stock Awards, as contemplated under this Section 2.7 shall be performed in a manner that is in compliance with the adjustment requirements of Sections 409A and 424(a) of the Code and in compliance with all other applicable requirements of Section 409A of the Code such that no Tax or penalty under Section 409A shall result from such assumption, adjustment or other treatment contemplated under this Section 2.7. Holdco shall reserve for issuance a number of shares of Holdco Common Stock at
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least equal to the number of shares of Holdco Common Stock that will be subject to Holdco Stock Options and Holdco Equity Rights as a result of the actions contemplated by this Section 2.7 by taking the necessary action for the grant by Holdco of rights to subscribe for shares of Holdco Common Stock for that number of shares.
At the Closing, Holdco will convert into a public company with limited liability ( naamloze vennootschap ) named "CF N.V." (or such other name as Cambridge may select at its sole discretion) which conversion shall become effective immediately before the Distribution. Immediately following the moment the Conversion becomes effective, the articles of association of Holdco shall be amended in their entirety and adopted substantially in the form set forth on Exhibit A , with such changes and additions thereto as shall be determined by Cambridge (the " Holdco Articles of Association "). The Conversion will be effectuated pursuant to the execution of a Dutch law notarial deed before the De Brauw Notary (the " Conversion Deed ").
The issues of Holdco Common Stock pursuant to this Agreement shall be written up in the register of shareholders of Holdco maintained under the DCC as fully paid up and to credit the share capital and share premium accounts of Holdco as appropriate and required by the DCC.
(A) the Holdco Board shall consist of ten (10) directors; (B) eight (8) directors of Holdco shall be designated by Cambridge prior to the Closing; provided that such persons selected are members of the Cambridge Board immediately prior to the Closing; and (C) two (2) directors of Holdco shall be the ones specified in Section 3.2(c)(i)(C) of the Oxford Disclosure Letter.
The closing of the Transactions (the " Closing ") shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 155 N. Wacker Dr., Chicago, IL 60606 (or, in the case of (i) the transfer of the Holdco-Purchased Equity Interests, at the offices of the Notary, and (ii) the Conversion, at the offices of the De Brauw Notary), on the later of (i) a date that is five (5) Business Days after the date on which all of the conditions set forth in Article X have been satisfied or waived (other than conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or at such other time and place as the Parties may agree and (ii) the earlier of (A) any date before the commencement of or during the Marketing Period specified by Cambridge upon no fewer than five (5) Business Days' notice to Oxford (it being understood that such date may be conditioned upon the simultaneous completion of the Financing) and (B) the first Business Day following the final day of the Marketing Period (such later date, the " Closing Date ").
A written statement from the Exchange Agent certified by a duly authorized representative of Holdco evidencing a book entry position in the name of Oxford (or its designee) and reflecting that Oxford (or its designee) is the holder of the Share Consideration.
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as set forth in such sections as so incorporated by reference. From and after the date of this Second Amendment, any reference to any such section in the Agreement as amended hereby shall, unless the context requires otherwise, be deemed to refer both to such section in the Combination Agreement as amended hereby and to such section so incorporated by reference into this Second Amendment (it being understood that the phrases "as of the date of the Agreement" and "as of the date hereof" and similar phrases in the Combination Agreement as amended hereby shall, in reference to such sections as so incorporated by reference into this Second Amendment, be deemed to refer to the date of this Second Amendment).
The Oxford Board, at a meeting duly called and held, (a) determined that the Oxford Transaction Agreements and the Transactions are in the best interests of Oxford and its stakeholders, including the stockholders of Oxford, (b) approved the Oxford Transaction Agreements and the Transactions and (c) recommended approval of the Transactions by the stockholders of Oxford (the " Oxford Board Recommendation "). The Oxford Board has received the opinion of Zaoui & Co. S.A., dated December 18, 2015, substantially to the effect that, as of such date, and subject to the limitations, assumptions and other matters considered in the preparation thereof as set forth therein, the Aggregate Consideration (as defined in such opinion) is fair, from a financial point of view, to the Oxford stockholders. The Oxford Board has received the opinion of Merrill Lynch International (Merrill Lynch International and Zaoui & Co. S.A. collectively, the " Oxford Financial Advisors "), dated December 18, 2015, substantially to the effect that, as of such date, and subject to the limitations, assumptions and other matters considered in the preparation thereof as set forth therein, the Consideration (as defined in such opinion) is fair, from a financial point of view, to Oxford.
The Cambridge Board, at a meeting duly called and held, (a) determined that the Cambridge Transaction Agreements and the Transactions are advisable and in the best interests of the stockholders of Cambridge, (b) approved the Cambridge Transaction Agreements and the Transactions and (c) resolved to recommend that its stockholders approve the Merger and adopt the Agreement (the " Cambridge Board Recommendation "). The Cambridge Board has received the opinions of Morgan Stanley & Co. LLC and Goldman, Sachs & Co. (the " Cambridge Financial Advisors "), dated December 20, 2015, substantially to the effect that, as of such date, and subject to the assumptions made, matters considered and limitations set forth therein, the Consideration (as defined in such opinions) to be paid for the Purchased Equity Interests is fair, from a financial point of view, to Cambridge.
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Holdco may issue the amount of shares of Holdco Common Stock out of its authorized share capital as set out in the Holdco Charter Documents. As of the date of this Agreement, there is one (1) issued share of Holdco Common Stock. All issued shares of Holdco Common Stock are duly authorized, validly issued, fully paid and free of preemptive rights, other than preemptive rights pursuant to applicable Laws or the Holdco Charter Documents. Subject to the foregoing, there are no issued shares of Holdco Common Stock or other Capital Stock of Holdco. There are no options, stock appreciation rights, restricted stock units, phantom awards, performance awards, other compensatory equity-based awards, warrants, conversion rights, calls, subscriptions, convertible securities or other rights, agreements or commitments which, in either case, obligate Holdco to issue transfer, sell or register any shares of Capital Stock of Holdco. From formation until immediately prior to Closing, except as contemplated by this Agreement, Holdco and MergerCo have conducted no business or operations of any kind and have existed solely for purposes of the Transactions.
shall not amend or propose to amend the Charter Documents of Holdco ( provided that, for the avoidance of doubt, Holdco may make such amendments required by the DCC or this Agreement in order to convert into a public company with limited liability ( naamloze vennootschap ) as contemplated by Article III in accordance with the Restructuring Steps Plan);
shall not, directly or indirectly, amend or propose to amend the Charter Documents, or any similar business entity formation or governing document, of Cambridge or Holdco ( provided that, for the avoidance of doubt, Holdco may make such amendments required by the DCC or this Agreement in order to convert into a public company with limited liability ( naamloze vennootschap ) as contemplated by Article III in accordance with the Restructuring Steps Plan);
Reserved.
All Transfer Taxes and related out-of-pocket expenses, if any, arising out of or in connection with the Transactions shall be borne by Holdco, provided that any Transfer Taxes and related out-of-pocket expenses required to be paid by Holdco arising out of or in connection with the transactions referred to in Sections 7.20(b), (d) and (h) shall be borne by Oxford. The Party that is required under applicable Laws to file Tax Returns with respect to all such Transfer Taxes shall prepare and file all such necessary Tax Returns with respect to all such Transfer Taxes, promptly provide the other Parties such Tax Returns and any related documentation and, to the extent required by applicable Law, Oxford, Cambridge and Holdco shall, and shall cause their respective Affiliates to, join in the preparation and execution of any such Tax Returns. To the extent Oxford or any of its Affiliates files such Tax Returns with respect to
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Transfer Taxes and pays such Transfer Taxes, Holdco shall indemnify and hold harmless and, within ten (10) days of a written request therefor, reimburse such Person for all such Transfer Taxes and any out-of-pocket expenses incurred in connection with the preparation and filing of such Tax Returns.
There shall have been no (i) change in Law, official interpretation thereof, or officially proposed action by the United States Internal Revenue Service or United States Department of Treasury, other than those rules described in Notice 2015-79 issued by the Department of the Treasury and Internal Revenue Service on November 19, 2015, (whether or not yet approved or effective) with respect to subject matters covered by Code Section 7874 or (ii) passage of any bill that would implement a change in applicable Laws by either the United States House of Representatives or the United States Senate with respect to subject matters covered by Code Section 7874, that, in either of case (i) or (ii), if finalized and made effective, in the opinion of Skadden or Cleary, (A) would reasonably be expected to cause Holdco to be treated as a U.S. domestic corporation for U.S. federal Tax purposes or (B) would cause Holdco to fail to qualify for relevant benefits of the Convention Between the United States of America and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, as amended.
Steps I-XII of the Restructuring Steps Plan shall have been completed in all material respects in accordance with the terms and provisions of this Agreement.
Cambridge shall have received from Skadden an opinion dated as of the Closing Date to the effect that Holdco should qualify for relevant benefits of the Convention Between the United States of America and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, as amended.
if the closing conditions set forth in Section 10.2(d) or Section 10.2(h) shall be incapable of being satisfied.
" Companies Act " means the UK Companies Act 2006.
" Conversion " means the conversion of CF B.V., from a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) into a public company with limited liability ( naamloze vennootschap ).
" De Brauw Notary " means a civil law notary holding offices at De Brauw Blackstone Westbroek N.V. (Amsterdam office) or that notary's substitute.
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[ Signature pages follow ]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed as of the date first written above.
CF INDUSTRIES HOLDINGS, INC. | ||||
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By: |
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/s/ W. ANTHONY WILL Name: W. Anthony Will Title: President and Chief Executive Officer |
[Signature Page to Amendment No. 2 to Combination Agreement]
DARWIN HOLDINGS LIMITED | ||||
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By: |
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/s/ DOUGLAS C. BARNARD Name: Douglas C. Barnard Title: Managing Director |
BEAGLE MERGER COMPANY LLC | ||||
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By: |
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/s/ W. ANTHONY WILL Name: W. Anthony Will Title: President and Chief Executive Officer |
OCI N.V. | ||||
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By: |
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/s/ SALMAN BUTT Name: Salman Butt Title: Chief Financial Officer |
CF B.V. | ||||
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By: |
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/s/ DOUGLAS C. BARNARD Name: Douglas C. Barnard Title: Managing Director |
FINCH MERGER COMPANY LLC | ||||
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By: |
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/s/ W. ANTHONY WILL Name: W. Anthony Will Title: President and Chief Executive Officer |
21 DECEMBER 2015
UNOFFICIAL ENGLISH TRANSLATION
ARTICLES OF ASSOCIATION
CF N.V.
This document is an English translation of a document prepared in Dutch. In preparing this document, an attempt has been made to translate as literally as possible without jeopardizing the overall continuity of the text. The definitions in this document are listed in the English alphabetical order which may differ from the Dutch alphabetical order. Inevitably, however, differences may occur in translation and if they do, the Dutch text will govern by law. In this translation, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to concepts described by the English terms as such terms may be understood under the laws of other jurisdictions.
ARTICLES OF ASSOCIATION
" Articles " means these articles of association;
" Annual Accounts " means for any financial year of the Company, the balance sheet and the profit and loss account of the Company for that financial year, and the explanatory notes to both;
" Board " means the board of directors of the Company;
" Board Rules " means the rules of the Board as referred to in Article 7.3.1;
" Chairman " means the non-executive Director designated as chairman of the Board;
" CEO " means the executive Director designated as chief executive officer;
" Company " means CF N.V.;
" Company Secretary " the person designated as secretary of the Company pursuant to Article 7.1.3;
" Director " means a member of the Board;
" DCC " means the Dutch Civil Code;
" General Meeting " means the corporate body consisting of Shareholders with voting rights and all other Persons with Voting Rights / the meeting in which the Shareholders and all other Persons with Meeting Rights assemble;
" Group Company " means a group company as referred to in article 2:24b DCC;
" Meeting Rights " means the right to, subject to the provisions of Article 8.4.1, attend and address the General Meeting, either in person or by Written proxy;
" Persons with Voting Rights " means Shareholders with voting rights, as well as holders of a right of usufruct with voting rights and holders of a right of pledge with voting rights;
" Persons with Meeting Rights " means Shareholders, as well as holders of a right of usufruct with Meeting Rights and holders of a right of pledge with Meeting Rights;
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" Share " means a share in the capital of the Company, including both ordinary shares and cumulative preference shares;
" Shareholder " means a holder of one or more Shares;
" Subsidiary " means a Subsidiary of the Company as referred to in article 2:24a DCC; and
" Written/in Writing " means in the form of, or transmitted via, any means of communication, including electronically, provided that the message is legible and reproducible.
and, whether or not in collaboration with third parties, to perform all other activities which directly and indirectly relate to those objects, all to be interpreted in the broadest sense.
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Holders of ordinary shares have no pre-emptive rights with respect to the issue of cumulative preference shares, ordinary shares issued for non-cash consideration or ordinary shares issued to employees of the Company or of a Group Company.
Holders of cumulative preference shares have no pre-emptive rights on any issue of ordinary shares or cumulative preference shares.
The Board may resolve to restrict or exclude pre-emptive rights if and insofar as the Board has been authorised to do so by the General Meeting for a fixed period of no more than five years. Unless otherwise stipulated in the authorisation, the authorisation may not be withdrawn.
A resolution of the General Meeting to limit or exclude the pre-emptive rights and a resolution to authorise the Board as referred to in this Article 3.4.2 requires a two-thirds majority of votes cast if less than one-half of the issued capital is represented at the General Meeting.
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Subject to the previous sentence, the Board determines the number of executive Directors and the number of non-executive Directors. Only natural persons may be non-executive Directors.
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The Board may at any time suspend an executive Director.
A suspended Director will be given the opportunity to account for his actions and be assisted by counsel at the meeting where the General Meeting decides on his dismissal.
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positions and perform the tasks of the relevant executive Director or executive Directors; and
Being unable to act means:
and, in the cases referred to in (ii) and (iii), without contact between the Director concerned and the Company having been possible for a period of five days, unless the Board has set a different period.
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The chairman of the meeting appoints the secretary of the General Meeting.
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General Meeting are laid down in a notarial report, no minutes will be required and the signing of the official report by the notary will suffice.
For the purpose of this Article 8.6.1, "quorum" means:
If a quorum with respect to a resolution proposed by the Board is not present, a new General Meeting may be convened at which the relevant resolution may be passed, irrespective of the part of the capital represented at such meeting. In the notice convening the new General Meeting it must be stated, giving the reason therefor, that the resolution may be passed, irrespective of the part of the capital represented at the meeting. If a quorum with respect to a resolution not proposed by the Board is not present, a new General Meeting may be convened at which the same quorum requirements apply to the relevant resolution as applied in the first General Meeting.
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be reduced pro rata to the day of issue of those Shares, whereby Shares issued in the course of a month will be considered issued as per the first date of that month; and
If, in a financial year, no profit is made or the profits are insufficient to allow the distribution provided for in the preceding sentence, the deficit will be paid, to the extent possible, at the expense of any freely distributable reserve of the Company. If and to the extent that the distribution referred to in the immediately preceding sentence cannot be paid at the expense of reserves, then, from the profits earned in the then following years, such distribution will be made first to the holders of cumulative preference shares so that the deficit is fully recovered before the following clauses of this Article 10.2.1 are applied. Interim dividends paid on cumulative preference shares for any financial year in accordance with Article 10.4 will be deducted from the dividend to be paid by virtue of this Article 10.2.1.
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" Affiliate " means a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under Common Control with another Person;
" Associate " when used to indicate a relationship with any Person, means (a) any corporation, partnership, unincorporated association or other entity of which such Person is a director, officer or partner or is, directly or indirectly, the Owner of twenty per cent or more of any class of Voting Shares, (b) any trust or other estate in which such Person is economically entitled to at least a twenty per cent of the assets or as to which such Person serves as trustee or in a similar fiduciary capacity, and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same residence as such Person;
" Business Combination " means:
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consolidation is caused by an Interested Shareholder and as a result of such merger or consolidation Article 11.2.3 of this Article 11.2 is not applicable to the surviving entity;
" Control ", including the term " Controlling ", " Controlled by " and " under Common Control with ", means the right, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the Ownership of Voting Shares, by contract or otherwise. A Person who is the Owner of twenty per cent or more of the outstanding Voting Shares of any corporation, partnership, unincorporated association or other entity shall be presumed to have Control of such entity, in the absence of proof by a preponderance of the evidence to the contrary, for the purpose of this Article 11.2 Notwithstanding the foregoing, a presumption of control shall not apply where such Person holds Voting Shares, in good faith and not for the purpose of circumventing this article, as an agent, bank, broker, nominee, custodian or trustee for one or more Owners who do not individually or as a group have Control of such entity;
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" Interested Shareholder " means any Person other than the Company and any direct or indirect majority Owned Subsidiary that (i) is the Owner of fifteen per cent or more of the outstanding Voting Shares, or (ii) is an Affiliate or Associate of the Company and was the Owner of fifteen per cent or more of the outstanding Voting Shares of the Company at any time within the three year period immediately prior to that date on which it is sought to be determined whether such Person is an Interested Shareholder and the Affiliates and Associates of such Person; provided, however, that the term " Interested Shareholder " shall not include any Person whose ownership of shares in excess of the fifteen per cent limitation set forth in this Article 11.2 is the result of action taken solely by the Company; provided further that such person shall be an Interested Shareholder if thereafter such Person acquires additional Voting Shares of the Company, except as a result of further Company action not caused, directly or indirectly by such Person;
" Owner ", including the terms " Own " and " Owned ", when used with respect to any share, means a Person that individually or with or through any of its Affiliates or Associates:
" Person " means any individual, corporation, partnership, unincorporated association or other legal entity;
" Voting Shares " means with respect to shares in any legal entity of any class or series entitled to vote generally in the appointment of directors and, with respect to any entity or partnership that is not a legal entity, any right entitled to vote generally on the appointment of the governing body of such entity or partnership. Voting Shares of the Company shall not include any unissued Shares that may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise;
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Business Combination or the transaction which resulted in the Shareholder becoming an Interested Shareholder;(1)
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Unless the Company consents in Writing to the selection of an alternative forum, the competent court of Amsterdam, the Netherlands, shall be the exclusive forum for any dispute between a Shareholder, in its capacity as Shareholder, and (i) the Company or (ii) any Director or person referred to in Article 7.2.9, acting in such capacity.
Any reference to "Shareholder" in this Article 13 includes a former Shareholder who was a Shareholder at the time this Article was effective, as well as any holder of a right of usufruct on a Share, any holder of a right of pledge on a Share and any holders of rights to acquire Shares, including all such persons who formerly had such capacity at a time this Article was effective.
Any reference to "Director" or "person referred to in Article 7.2.9" in this Article 13 includes any person who formerly had such capacity.
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Exhibit B
DATED December 20, 2015
CF B.V.,
CAPRICORN CAPITAL B.V.,
LEO CAPITAL B.V.,
AQUARIUS INVESTMENTS B.V.
AND
OCI N.V.
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
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This Agreement (this " Agreement ") is made on December 20, 2015
BY AND AMONG:
WHEREAS:
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IT IS AGREED as follows:
1. Interpretation
In this Agreement:
1.1 Definitions
" Affiliate " means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under Common Control with, such Person, provided that neither the Shareholders, nor any of their Subsidiaries shall be deemed to be an Affiliate of the Company or vice versa, and provided, further, that solely for purposes of this Agreement, any settlor of a Family Trust shall be deemed to be an Affiliate of such Family Trust;
" Articles " mean the articles of association of the Company, as amended from time to time in accordance with the provisions of this Agreement;
" Associate " means, with respect to any Person, (i) any Person of which such Person is an officer, partner or equivalent or is, directly or indirectly, the beneficial owner of ten per cent. (10%) or more of any class of equity securities, (ii) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity, and (iii) any Family Member or spouse of such Person;
" Beneficially Own " means, with respect to any securities, having "beneficial ownership" of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (as in effect on the date of this Agreement and (ii) having the right to become the Beneficial Owner of such securities (whether such right is exercisable immediately or only after the passage of time or the occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise. The terms " Beneficial Owner ", " Beneficial Ownership " and " Beneficially Owned " shall have a correlative meaning;
" Board " means, as of any date, the board of directors of the Company on such date;
" Business Day " means a day which is not a Saturday or Sunday or a bank or public holiday in New York, New York or The Netherlands;
" Capricorn " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of Capricorn are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Closing " has the meaning given to such term in the Combination Agreement;
" Combination Agreement " has the meaning given to such term in the recitals to this Agreement;
" Competitor " means any Person set forth on Schedule A;
" Control " (including, with correlative meanings, " Controlled by " and " under Common Control with ") means the possession, direct or indirect, of the power to direct or cause the direction of management or policies of a Person, whether through ownership of securities, by contract or otherwise;
" Director " means any member of the Board;
" Directed Offering " means any so-called "registered direct" sale, block trade or other similar offering or Transfer made pursuant to an effective registration statement filed under the Securities Act, but in which the Voting Securities Transferred are not directly or indirectly widely distributed, and the Shareholder making such Transfer has knowledge of the identity of each transferee;
" Distribution " has the meaning given to such term in the recitals to this Agreement;
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" Effective Time " has the meaning given to such term in the Combination Agreement;
" Exchange Act " means the U.S. Securities Exchange Act of 1934, as amended;
" Family Member " with respect to any individual, means such individual's mother, father, sisters, brothers and children;
" Family Trust " means a trust for the benefit of one or more S Family Members;
" Firewater One Shareholder Agreement " has the meaning given to such term in the Combination Agreement;
" Group " has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder;
" Ordinary Shares " means the ordinary shares of the Company;
" Organisational Documents " means, with respect to any Person:
" Other Shares " means shares of any class of share capital of the Company (other than Ordinary Shares) that are entitled to vote on the appointment or removal of Directors;
" Ownership Limit " means, at any time of determination, twenty point five per cent. (20.5%) of the Voting Securities outstanding at such time, computed without regard to any Oxford Shares;
" Ownership Threshold " means, at any time of determination, five per cent. (5%) of the Voting Securities outstanding at such time;
" Oxford " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of Oxford are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Oxford Shares " means the Ordinary Shares acquired by Oxford (i) pursuant to the Combination Agreement and not included in the Distribution and (ii) pursuant to the Firewater One Shareholder Agreement, if any;
" Permitted Transferee " means the Company or any direct or indirect wholly-owned Subsidiary or Controlled Affiliate of any Shareholder, and in the case of Oxford, any shareholder of Oxford who receives Voting Securities pursuant to a pro rata distribution by Oxford after the Effective Time, and in the case of an S Shareholder, (i) an S Family Member, (ii) a Family Trust, or (iii) any direct or indirect wholly-owned Subsidiary or Controlled Affiliate of the foregoing;
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" Person " means any individual, private or public company, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organisation, governmental entity or other entity of any kind or nature;
"Qualified Candidate" means an individual who:
" Registration Rights Agreements " has the meaning set forth in the Combination Agreement;
" Representatives " means, with respect to any designated Person, such designated Person's Affiliates and the respective directors, officers, employees, accountants, counsel, consultants and other agents and advisers of such designated Person and its Affiliates;
" S Family Member " means any of Onsi Naguib Sawiris, his children and remoter issue or the spouses of any of them;
" SEC " means the United States Securities and Exchange Commission;
" Securities Act " means the United States Securities Act of 1933, as amended;
" Shareholder Affiliated Persons " has the meaning given to such term in Clause 5;
" Shareholder Shares " means Voting Securities Beneficially Owned by the S Shareholders or by Oxford, as the case may be;
" S Shareholders " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of any S Shareholders are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Shareholders " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of any Shareholders are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees, and in the event that Shareholder Shares of any Shareholders are Transferred in accordance with Clause 4.1(c)(v)(A), shall include such transferees;
" Standstill Period " has the meaning given to such term in Clause 3.1;
" Subsidiary " has the meaning set forth in the Combination Agreement;
" Transfer " means any voluntary or involuntary sale, transfer, assignment, pledge, hypothecation, charge, mortgage, license, gift, creation of a security interest in or lien on, grant of any right or option, creation of any convertible, exchangeable or derivative security with respect to, placement in trust (voting or otherwise), encumbrance or other disposition of any kind to any Person, including those by way of hedging or derivative transactions, in each case, directly or indirectly, including by means of a disposition of any equity interests in an S Shareholder or in a Person that directly or indirectly holds any equity interests in an S Shareholder, by operation of law or otherwise, provided , however , that a
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"Transfer" shall not include any direct or indirect transfer of the equity securities or Control of Oxford. Notwithstanding the foregoing, any direct or indirect mortgage, pledge, hypothecation, encumbrance or any other similar disposition of the nature of a security interest, lien or charge contemplated by the first sentence of this definition, by a Shareholder of any Ordinary Shares, or with respect to any such Ordinary Shares, shall not be deemed to constitute a "Transfer" subject to the restrictions on Transfer contained or referenced herein. The term " Transferred " shall have a correlative meaning; and
" Voting Securities " means the Ordinary Shares together with any Other Shares.
1.2 Subordinate legislation
References to a statutory provision include any subordinate legislation made from time to time under that provision.
1.3 Modification etc. of statutes
References to a statute or statutory provision include that statute or provision as from time to time modified or re-enacted or consolidated.
1.4 Clauses, Schedules etc.
References to this Agreement include the Schedules to it and this Agreement as from time to time amended and references to Clauses and Schedules are to Clauses of and Schedules to this Agreement, unless the context otherwise require.
1.5 Headings
Headings shall be ignored in construing this Agreement.
1.6 Parties
Any reference in this Agreement to a " party " or " parties " shall be a reference to a party or parties to this Agreement.
1.7 Effectiveness of this Agreement
This Agreement, other than this Clause 1, Clause 2 and Clauses 7 to 9 (which will come into force immediately), will take effect at and as of the Effective Time. Notwithstanding anything to the contrary herein, in the event the Combination Agreement is terminated in accordance with its terms prior to the Effective Time, this Agreement shall terminate immediately and be null and void.
1.8 General interpretation
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1.9 Actions at the Effective Time
Upon completion of the Distribution, the S Shareholders shall update Schedule B to reflect all Voting Securities Beneficially Owned by the S Shareholders at such time.
2. Warranties
2.1 Warranties of the Company
The Company warrants to the Shareholders as of the date hereof that:
except, in the case of sub-clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement.
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2.2 Warranties of the Shareholders
Each Shareholder warrants, severally, and not jointly, to the Company as of the date hereof that:
except, in the case of sub-clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair its ability to perform its obligations under this Agreement;
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3. Standstill; share ownership related information
3.1 Standstill restrictions
From and after the Effective Time until the one (1) year anniversary of the date on which the S Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (the " Standstill Period "), each Shareholder agrees that, without the prior written consent of the Board, such Shareholder shall not, and shall cause each of its and their Affiliates and, shall use reasonable endeavours to cause, its and their Representatives acting on their behalf not to, directly or indirectly, alone or acting together with any other Person, except as otherwise (A) expressly set forth in this Clause 3.1 or (B) provided in the Combination Agreement and/or the Firewater One Shareholder Agreement:
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"solicitation" of "proxies" to vote or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date of this Agreement, whether or not such Regulation is applicable to the Company) with respect to any Voting Securities;
3.3 Share ownership related information
For so long as this Agreement is in effect, each Shareholder shall, upon request in writing by the Company, provide to the Company as soon as reasonably practicable and in any event within ten (10) Business Days, any information related to such Shareholder's ownership or holding of Shareholder Shares, including any agreements or arrangements relating to such ownership or holding.
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4. Transfer restrictions
4.1 Transfer restrictions
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5. Freedom to pursue opportunities
Notwithstanding anything in this Agreement to the contrary, the parties expressly acknowledge and agree that: (a) each Shareholder and its Affiliates (collectively, the " Shareholder Affiliated Persons ") has the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly engage in the same or similar business activities or lines of business as the Company or any of its Subsidiaries, including those deemed to be competing with the Company or any of its Subsidiaries, and (b) in the event that a Shareholder Affiliated Person acquires knowledge of a potential transaction or matter that may be a corporate opportunity for each of the Company and such Shareholder Affiliated Person, shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or any of its Subsidiaries, as the case may be, and shall not be liable to the Company or its Affiliates or shareholders for breach of any duty (contractual or otherwise) by reason of the fact that such Shareholder Affiliated Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company.
6. Termination
This Agreement shall terminate with immediate effect upon the earlier of (a) the date that is one (1) year after the first date on which the S Shareholders, in the aggregate, shall cease to Beneficially Own Voting Securities representing at least the Ownership Threshold; and (b) the date not less than the date five (5) years after the date hereof that the Company elects to terminate this Agreement by giving written notice to the Shareholders; provided that this Clause 6 and Clauses 7 and 8 shall remain in full force and effect following such termination.
7. Notices
7.1 Addresses
Any notice or other communication to be given under this Agreement shall be in writing, shall be deemed to have been duly served on, given to or made in relation to a party if it is left at the authorised address of that party, posted by first class mail addressed to that party at such address, or sent by facsimile transmission to a machine situated at such address and shall if:
provided that where, in the case of delivery by hand or facsimile transmission, delivery or transmission occurs after 6.00 p.m. on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9.00 a.m. on the next following Business Day.
For the purposes of this Clause 7 the authorised address of each party shall be the address set out below or such other address (and details) as that party may notify to the others in writing from time to time in accordance with the requirements of this Clause 7:
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To
the Company:
CF
B.V.
c/o
CF Industries Holdings, Inc.
4 Parkway North, Suite 400
Deerfield, IL 60015-2590
Telephone: (847) 405-2400
Facsimile: (847) 405-2711
Email: Dbarnard@cfindustries.com
Attention: Douglas C. Barnard
With copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
Facsimile: (312) 407-0411
Email: brian.duwe@skadden.com, richard.witzel@skadden.com
Attention: Brian W. Duwe, Richard C. Witzel, Jr.
To any of the Shareholders:
Intertrust Netherlands BV
Prins Bernhardplein 200
1097 JB Amsterdam
The Netherlands
Telephone: + 31 20 521 4777
Email: jurjen.hardeveld@intertrustgroup.com
Attention: Jurjen Hardeveld
With copies (which shall not constitute notice) to:
Withers LLP
16 Old Bailey
London EC4M 7EG
United Kingdom
Telephone: +44 (0)20 7597 6116
Email: Samantha.Morgan@withersworldwide.com
Attention: Samantha Morgan
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
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Facsimile:
(212) 225-3999
Email: rdavis@cgsh.com, ptiger@cgsh.com
Attention: Robert P. Davis, Paul M. Tiger
To Oxford:
OCI N.V.
Honthorststraat 19
1071 DC Amsterdam
The Netherlands
Facsimile: +44 (0) 20 7439 4802
Email: Erika.Wakid@oci.nl
Attention: Erika Wakid
With copies (which shall not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
Facsimile: (212) 225-3999
Email: rdavis@cgsh.com, ptiger@cgsh.com
Attention: Robert P. Davis, Paul M. Tiger
8. General
8.1 Whole agreement
This Agreement contains the whole agreement between the parties hereto relating to the subject matter hereof at the date hereof to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with herein.
8.2 No inducement
Each party to this Agreement acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly provided for in this Agreement.
8.3 Legal advice
Each party to this Agreement confirms it has received independent legal advice relating to all the matters provided for in this Agreement, including the provisions of this Clause 8.3, and agrees, having considered the terms of this Clause 8.3, and this Agreement as a whole, that the provisions of this Clause 8.3, are fair and reasonable.
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8.4 Survival of rights, duties and obligations
Termination of this Agreement for any cause shall not release a party from any liability which at the time of termination has already accrued to another party or which thereafter may accrue in respect of any act or omission prior to such termination.
8.5 Conflict with the Articles
To the extent permitted by law, in the event of any ambiguity or discrepancy between the provisions of this Agreement and the Articles, it is intended that the provisions of this Agreement shall prevail and accordingly the Shareholders shall exercise all voting and other rights and powers available to them so as to give effect to the provisions of this Agreement and shall further if necessary procure any required amendment to the Articles.
8.6 Several and not joint liability of Shareholders
Each party hereby agrees that the representations, warranties, covenants and agreements of the Shareholders under this Agreement are being made severally, and not jointly, by the Shareholders, and no Shareholder will be liable for any breach, default, liability or other obligation of any of the other Shareholders.
8.7 No partnership
Nothing in this Agreement shall be deemed to constitute a partnership between the parties nor constitute any party the agent of any other party for any purpose except as expressly provided in this Agreement.
8.8 Shareholder actions
Any determination, consent or approval of, or notice or request delivered by, or any other action of, any S Shareholder shall be made by, and shall be valid and binding upon, all S Shareholders, if made by one or more S Shareholders Beneficially Owning a majority of the aggregate amount of the Shareholder Shares Beneficially Owned by the S Shareholders. The Company shall be entitled to demand from time to time and at any time, from the S Shareholders, evidence reasonably satisfactory to the Company of such majority approval before proceeding with the Company's obligations under this Agreement.
8.9 Amendments and waiver
No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Company, where enforcement of the amendment, modification, discharge or waiver is sought against the Company; or (ii) each Shareholder, where enforcement of the amendment, modification, discharge or waiver is sought against the Shareholders. Any waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or the Shareholders of a breach of or a default under any of the provisions of this Agreement or the failure to exercise or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
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8.10 Assignment
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as contemplated by Clause 4.1(c)(iv), none of the parties may directly or indirectly assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the other parties. Any purported direct or indirect assignment in violation of this Clause 8.10 shall be null and void ab initio .
8.11 Further assurance
At any time after the date of this Agreement the parties shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at the cost of the relevant party execute such documents and do such acts and things as that party may reasonably require for the purpose of giving to that party the full benefit of all the provisions of this Agreement.
8.12 Invalidity
If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected.
8.13 Counterparts
This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.
8.14 Costs
Each party shall bear all costs incurred by it in connection with the preparation, negotiation and entry into this Agreement and the documents to be entered into pursuant to it.
9. Governing law and submission to jurisdiction
9.1 Governing law
This agreement and any non-contractual obligation arising out of or in connection with it are governed exclusively by Dutch law, without regard to the conflict of laws thereof.
9.2 Jurisdiction
All disputes arising out of or in connection with this agreement, including disputes concerning its existence, its validity and any non-contractual obligation, will be resolved by the courts in Amsterdam, the Netherlands.
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In witness whereof this Agreement has been duly executed.
Signed for and on behalf of CF B.V. by:
/s/ DOUGLAS C. BARNARD
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Name | Douglas C. Barnard | |||
Title | Managing Director |
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Signed for and on behalf of OCI N.V. by:
/s/ SALMAN BUTT
|
||||
Name | Salman Butt | |||
Title | Chief Financial Officer |
19
Signed for and on behalf of Leo Capital B.V. by:
/s/ G.A.R. WARRIS
|
||||
Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Leo Capital B.V. by:
/s/ P. OOSTHOEK
|
||||
Name | P. Oosthoek | |||
Title | Proxyholder |
20
Signed for and on behalf of Capricorn Capital B.V. by:
/s/ G.A.R. WARRIS
|
||||
Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Capricorn Capital B.V. by:
/s/ P. OOSTHOEK
|
||||
Name | P. Oosthoek | |||
Title | Proxyholder |
21
Signed for and on behalf of Aquarius Investments B.V. by:
/s/ G.A.R. WARRIS
|
||||
Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Aquarius Investments B.V. by:
/s/ P. OOSTHOEK
|
||||
Name | P. Oosthoek | |||
Title | Proxyholder |
22
The
Mosaic Company
OJSC "Phosagro"
BASF SE
LyondellBasell Industries N.V.
Honeywell International Inc.
Fertilizantes Heringer S.A.
Grupo Fertipar LTDA
PJSC Uralkali
Glencore plc
Archer-Daniels-Midland Company
HELM AG
Ameropa AG
Keytrade AG
Marubeni Corporation
Saudi Arabian Fertilizer Company / Saudi Basic Industries Corporation
Yara International ASA
Potash Corporation of Saskatchewan Inc.
Qatar Fertiliser Company S.A.Q
PT Pupuk Indonesia (Persero)
Koch Industries, Inc.
OCI N.V.
Agrium Inc.
PETRONAS Chemicals Group Berhard
PetroChina Company Limited
Trammo Inc.
TogliattiAzot Corporation
Borealis AG
Sinofert Holdings Limited
Group DF Limited
EuroChem Group AG
China BlueChemical Ltd.
JSC Acron
Hubei Yihua Fertilizer Co., Ltd.
Indian Farmers Fertiliser Cooperative Limited
Methanol Holdings (Trinidad) Limited
23
S Shareholder Oxford Shares: | ||
Capricorn Capital B.V. | 60,672,376 | |
Leo Capital B.V. | 36,491,859 | |
Aquarius Investments B.V. | 11,522,425 | |
Oxford Shares held by Affiliates of the S Shareholders: |
||
Onsi Sawiris | 51 | |
Nassef Sawiris | 68,000 | |
NNS Holding | 1,105,723 | |
OS Holding | 25,000 | |
OCI N.V. 3.875 per cent. Convertible Bonds due 2018: |
||
NNS Holding | €53,300,000 |
24
Exhibit C
REGISTRATION RIGHTS AGREEMENT
BETWEEN
CF B.V.
AND
OCI N.V.
DATED AS OF [
·
], 2016
1
|
|
Page | ||||
---|---|---|---|---|---|---|
ARTICLE I DEFINITIONS |
3 | |||||
SECTION 1.1 |
Definitions |
3 |
||||
SECTION 1.2 |
Other Definitional Provisions |
7 | ||||
ARTICLE II Representations and Warranties |
7 |
|||||
SECTION 2.1 |
Representations and Warranties of the Company |
7 |
||||
SECTION 2.2 |
Representations and Warranties of the Shareholder |
8 | ||||
ARTICLE III REGISTRATION RIGHTS |
8 |
|||||
SECTION 3.1 |
Demand Request |
8 |
||||
SECTION 3.2 |
Piggyback Registration |
10 | ||||
SECTION 3.3 |
Shelf Registration |
11 | ||||
SECTION 3.4 |
Termination of Registration Obligation |
12 | ||||
SECTION 3.5 |
Suspension |
13 | ||||
SECTION 3.6 |
Registration Procedures |
13 | ||||
SECTION 3.7 |
Registration Expenses |
17 | ||||
SECTION 3.8 |
Indemnification; Contribution |
18 | ||||
SECTION 3.9 |
Indemnification Procedures |
20 | ||||
SECTION 3.10 |
Rule 144; Regulation S |
21 | ||||
SECTION 3.11 |
Holdback |
21 | ||||
SECTION 3.12 |
Existing Registration Statements |
21 | ||||
ARTICLE IV MISCELLANEOUS |
22 |
|||||
SECTION 4.1 |
Injunctive Relief |
22 |
||||
SECTION 4.2 |
Assignments |
22 | ||||
SECTION 4.3 |
Amendments; Waiver |
22 | ||||
SECTION 4.4 |
Notices |
22 | ||||
SECTION 4.5 |
Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury |
23 | ||||
SECTION 4.6 |
Interpretation |
23 | ||||
SECTION 4.7 |
Entire Agreement; No Other Representations |
24 | ||||
SECTION 4.8 |
No Third-Party Beneficiaries |
24 | ||||
SECTION 4.9 |
Severability |
24 | ||||
SECTION 4.10 |
Counterparts |
24 | ||||
SECTION 4.11 |
Further Assurances |
24 |
2
REGISTRATION RIGHTS AGREEMENT, dated as of [ · ], 2016 (this " Agreement "), between CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, which will convert into a public company with limited liability ( naamloze vennootschap ) in accordance with the provisions of the Combination Agreement (as defined herein) (the " Company "), and OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of the Netherlands (" Oxford " or the " Shareholder ").
WHEREAS, CF Industries Holdings, Inc., a Delaware corporation (" Cambridge "), the Company, Finch Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect, subsidiary of the Company (" MergerCo " and, together with Cambridge and the Company, the " Cambridge Parties "), and Oxford are parties to a Combination Agreement, dated as of August 6, 2015, as amended from time to time prior to the date hereof (the " Combination Agreement "), pursuant to which, among other things, (i) Oxford will convey to the Cambridge Parties, and the Cambridge Parties will acquire from Oxford, certain equity ownership interests in certain Persons owned, directly or indirectly, in their entirety by Oxford in exchange for consideration consisting, in whole or in part, of Ordinary Shares (as defined below) to be issued by the Company to Oxford and (ii) MergerCo will merge with and into Cambridge, with Cambridge becoming a wholly-owned, direct or indirect, subsidiary of the Company (the " Transaction "), upon the terms and conditions set forth in the Combination Agreement; and
WHEREAS, in connection with the execution and delivery of the Combination Agreement and the consummation of the Transaction, the Company has agreed to grant the Shareholder certain registration rights as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto agree as follows:
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement:
" Affiliate " shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, provided that neither the Shareholders nor any of their Subsidiaries shall be deemed to be an Affiliate of the Company or vice versa.
" Agreement " shall have the meaning set forth in the preamble to this Agreement.
" Beneficially Own " shall mean, with respect to any securities, (i) having "beneficial ownership" of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (as in effect on the date of this Agreement); (ii) having the right to become the Beneficial Owner of such securities (whether such right is exercisable immediately or only after the passage of time or the occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (iii) having an exercise or conversion privilege or a settlement payment or mechanism with respect to any option, warrant, right, convertible security, stock appreciation right, swap agreement or other security, contract right or derivative position, whether or not currently exercisable, at a price related to the value of the securities for which Beneficial Ownership is being determined or (A) having a value determined in whole or part with reference to, or derived in whole or in part from, the value of the securities for which Beneficial Ownership is being determined and (B) that increases in value as the value of the securities for which Beneficial Ownership is being determined increases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of the securities for which Beneficial Ownership is being
3
determined (excluding any interests, rights, options or other securities set forth in Rule 16a-1(c)(1)-(5) or (7) promulgated pursuant to the Exchange Act (as in effect on the date of this Agreement)). The terms " Beneficial Owner ," " Beneficial Ownership " and " Beneficially Owned " shall have a correlative meaning.
" Business Day " shall mean a day other than a Saturday or Sunday or public holiday in New York, New York.
" Claim Notice " shall have the meaning set forth in Section 3.9(a).
" Claims " shall have the meaning set forth in Section 3.8(a).
" Combination Agreement " shall have the meaning set forth in the recitals to this Agreement.
" Company " shall have the meaning set forth in the preamble to this Agreement.
" Demand Registration " shall have the meaning set forth in Section 3.1(a).
" Demand Registration Statement " shall have the meaning set forth in Section 3.1(a).
" Demand Request " shall have the meaning set forth in Section 3.1(a).
" Effective Date " shall mean the date on which the Transaction is consummated.
" Exchange Act " shall mean the United States Securities Exchange Act of 1934, as amended.
" FINRA " shall mean the Financial Industry Regulatory Authority, Inc.
" Form S-3 " shall mean such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.
" Free Writing Prospectus " shall have the meaning set forth in Section 3.6(a).
" Holdback Period " shall mean, with respect to any registered offering of equity securities of the Company, the period beginning ten (10) days before the effective date of the related registration statement and continuing until the expiration of ninety (90) days (or such shorter period as the managing underwriter(s) permit) after the effective date of the related registration statement (except that, in the case of any such registered offering that is a takedown from a Shelf Registration Statement, the Holdback Period shall be the period beginning ten (10) days before the pricing date in connection with such takedown and continuing until the expiration of ninety (90) days (or such shorter period as the managing underwriter(s) permit) after such pricing date).
" Indemnifying Party " shall have the meaning set forth in Section 3.9(a).
" Marketed Underwritten Offering " shall mean any underwritten offering that involves a customary "road show" (including an "electronic road show") or other substantial marketing effort by the Company and the underwriters over a period of at least 48 hours.
" Non-Underwritten Offering " shall mean an offering in which securities of the Company are not sold to an underwriter or underwriters for reoffering to the public.
" NYSE " shall mean New York Stock Exchange LLC.
" Offering Confidential Information " shall mean, with respect to any registered offering or proposed registered offering (i) the Company's plan to file the relevant Registration Statement and engage in the offering so registered, (ii) any information regarding the offering being registered (including the potential timing, price, number of shares, underwriters or other counterparties, selling securityholders or plan of distribution) and (iii) any other information (including
4
information contained in draft supplements or amendments to offering materials) provided to the Shareholder by the Company (or by third parties) in connection with the applicable registration or offering; provided , however , that Offering Confidential Information shall not include information that was or becomes generally available to the public (including as a result of the filing of the relevant Registration Statement) other than as a result of a disclosure by the Shareholder or its Representatives.
" Ordinary Shares " shall mean the ordinary shares of the Company.
" Organizational Documents " shall mean, with respect to any Person, (a) if a corporation, the memorandum and articles of association, articles or certificate of incorporation and the bylaws, (b) if a general partnership or limited liability partnership, the partnership agreement and any statement of partnership, (c) if a limited partnership, the limited partnership agreement and the certificate of limited partnership, (d) if a limited liability company, the certificate of formation and limited liability company agreement, (e) if another type of Person, any charter or similar document adopted or filed in connection with the creation, formation or organization of the Person, and (f) any similar document, amendment or supplement to any of the foregoing.
" Other Shares " shall mean shares of any class of share capital of the Company (other than Ordinary Shares) that are entitled to vote in the election of directors.
" Person " shall mean any individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof or any other entity.
" Piggyback Registration " shall have the meaning set forth in Section 3.2(a).
" Proceedings " shall have the meaning set forth in Section 4.5.
" Prospectus " shall mean the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement and relating to Registrable Shares, as amended or supplemented and including all material, if any, incorporated by reference in such prospectus or prospectuses.
" Registrable Shares " shall mean, at any time of determination, (a) the Ordinary Shares consisting of Election Shares (as defined in the Contribution Agreement) that were held by the Shareholder on the Effective Date, immediately after giving effect to the Closing, (b) any Ordinary Shares acquired by the Shareholder as a result of the Company's exercise of its call option pursuant to the terms of the Firewater One Shareholder Agreement (as defined in the Combination Agreement) and (c) all Ordinary Shares or Other Shares issued to the Shareholders in respect of any such securities or into which any such securities shall be converted or exchanged in connection with stock splits, reverse stock splits, stock dividends or distributions, combinations or similar recapitalizations, reclassifications or capital reorganizations occurring thereafter, in each case, that are held by any Shareholder at such time. As to any particular Registrable Shares, such securities shall cease to be Registrable Shares when (i) a registration statement registering such securities under the Securities Act has become effective and such securities have been sold or otherwise transferred by the holder thereof pursuant to such effective registration statement, (ii) the holder thereof may sell the entire amount of the Registrable Shares held by such holder in a single sale pursuant to Rule 144, (iii) such securities are sold in accordance with Rule 144 (or any successor provision) under the Securities Act or (iv) such securities are transferred to a Person not entitled to the registration rights granted by this Agreement.
" Registration Expenses " shall have the meaning set forth in Section 3.7(a).
" Registration Rights Termination Date " shall have the meaning set forth in Section 3.4.
5
" Registration Statement " shall mean any registration statement of the Company which covers any of the Registrable Shares pursuant to the provisions of this Agreement, including any Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all documents, if any, incorporated by reference in such Registration Statement.
" Required Shelf Registration Statement " shall have the meaning set forth in Section 3.3(a).
" Revival " shall have the meaning set forth in Section 3.4.
" Scheduled Black-Out Period " means any ordinary course blackout period declared by the Company in connection with an annual or quarterly earnings release in accordance with Company policy.
" SEC " shall mean the U.S. Securities and Exchange Commission.
" Securities Act " shall mean the United States Securities Act of 1933, as amended.
" Selling Expenses " shall have the meaning set forth in Section 3.7(a).
" Shareholder Shares " shall mean all Voting Securities Beneficially Owned by the Shareholders.
" Shareholder " shall have the meaning set forth in the preamble to this Agreement.
" Shelf Notice " shall have the meaning set forth in Section 3.3(a).
" Shelf Period " shall have the meaning set forth in Section 3.3(a).
" Shelf Registration " shall have the meaning set forth in Section 3.3(a).
" Shelf Registration Statement " shall mean a "shelf" registration statement providing for the registration, and the sale on a continuous or delayed basis, of securities pursuant to Rule 415 under the Securities Act.
" Shelf Take-Down " shall have the meaning set forth in Section 3.3(b).
" Short-Form Registration Statement " shall have the meaning set forth in Section 3.3(a).
" Similar Securities " shall have the meaning set forth in Section 3.2(a).
" Special Registration " shall mean the registration of (i) equity securities and/or options or other rights in respect thereof solely registered on Form S-4, Form S-8 or any successor forms thereto or any other form for the registration of securities issued or to be issued in connection with a merger, acquisition or employee benefit plan; or (ii) shares of equity securities and/or options or other rights in respect thereof to be offered solely in connection with an employee benefit or dividend reinvestment plan.
" Time of Sale " shall have the meaning set forth in Section 3.8(a).
" Transaction " shall have the meaning set forth in the recitals to this Agreement.
" Underwritten Shelf Take-Down " shall have the meaning set forth in Section 3.3(c).
" Underwritten Shelf Take-Down Notice " shall have the meaning set forth in Section 3.3(c).
" Voting Securities " shall mean the Ordinary Shares together with any Other Shares.
6
SECTION 1.2 Other Definitional Provisions. Except as expressly set forth in this Agreement or unless the express context otherwise requires:
(a) the words "hereof", "herein", and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(c) any references herein to a specific Section or Article shall refer, respectively, to such Section or Article of this Agreement;
(d) any reference herein to "USD" and "$" are to United States Dollars;
(e) wherever the word "include", "includes" or "including" is used in this Agreement, it shall be deemed to be followed by the words "without limitation";
(f) references herein to any gender includes the other gender;
(g) a reference to a Person (including a party to this Agreement) includes a reference to that Person's legal personal representatives and permitted successors and assigns;
(h) a reference to a document is a reference to that document as may be supplemented, amended or modified from time to time;
(i) any reference in this Agreement to any statute or statutory provision shall be deemed to include any statute or statutory provision that amends, extends, consolidates, re-enacts or replaces same, or which has been amended, extended, consolidated, re-enacted or replaced (whether before or after the date of this Agreement) by same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute; and
(j) any reference to a U.S. legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than the United States, be deemed to include a reference to what most nearly approximates in that jurisdiction to the U.S. legal term.
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Representations and Warranties of the Company. The Company represents and warrants to the Shareholders as of the date hereof that:
(a) The Company is a private limited company ( besloten vennootschap ) incorporated under the law of the Netherlands.
(b) The Company has all requisite organizational power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of the Company, including the approval of the board of directors of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Shareholder, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and, as to enforceability, by general equitable principles.
7
(c) The execution and delivery of this Agreement by the Company and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Company; (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an encumbrance on any of the assets of the Company (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Company; or (iii) conflict with, breach or violate any law applicable to the Company or by which its properties are bound or affected, except, in the case of clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement.
SECTION 2.2 Representations and Warranties of the Shareholder. The Shareholder represents and warrants to the Company as of the date hereof as follows:
(a) The Shareholder is duly incorporated, validly existing and in good standing under the laws of the Netherlands.
(b) The Shareholder has all requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Shareholder of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of the Shareholder, including the approval of its board of directors. This Agreement has been duly executed and delivered by the Shareholder and, assuming the due authorization, execution and delivery of this Agreement by the Company, constitutes the legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and, as to enforceability, by general equitable principles.
(c) The execution and delivery of this Agreement by the Shareholder and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Shareholder; (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an encumbrance on any of the assets of the Shareholder (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Shareholder; or (iii) conflict with, breach or violate any law applicable to the Shareholder or by which its properties are bound or affected, except, in the case of clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to impair the ability of the Shareholder to perform its obligations under this Agreement.
REGISTRATION RIGHTS
(a) After the Effective Date and until the Registration Rights Termination Date, at any time when no Required Shelf Registration Statement is available for the resale of Registrable Shares (other than by reason of a suspension pursuant to Section Section 3.5), the Shareholder may request in writing that the Company effect a registration under the Securities Act of such part of the Shareholders' Registrable Shares as the Shareholder requests to transfer in a Marketed
8
Underwritten Offering or a Non-Underwritten Offering in each case subject to the minimum threshold requirement applicable to such registration pursuant to Section 3.1(b) (such request, a " Demand Request "). Upon receipt of any Demand Request, the Company shall use reasonable efforts to file, not later than the later of (x) the date that is sixty (60) calendar days after receipt by the Company of such Demand Request and (y) the first Business Day after the date on which the Form 8-K amendment contemplated by Section 7.14 of the Combination Agreement is filed with the SEC, in accordance with the provisions of this Agreement, a Registration Statement with the SEC (a " Demand Registration Statement ") covering such Registrable Shares to be sold in a Marketed Underwritten Offering or a Non-Underwritten Offering, at the sole discretion of the Shareholder. Each Demand Request shall specify the number of Registrable Shares requested to be registered and the intended plan of distribution of such Registrable Shares. Any registration requested by the Shareholder under this Section 3.1(a) is referred to in this Agreement as a " Demand Registration ." Unless otherwise agreed by the Company, any Demand Registration to be made by way of a Marketed Underwritten Offering must relate to a firm commitment underwriting. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to file or make available any Shelf Registration Statement, or otherwise register securities for offer or sale on a continuous or delayed basis, pursuant to this Section 3.1.
(b) The Shareholder shall be entitled to initiate no more than three (3) Demand Registrations; provided , however , that the Company shall not be obligated to effect any Demand Registration (i) unless the aggregate value of the Registrable Shares requested to be registered by the Shareholder is at least twenty-five million dollars ($25,000,000); and (ii) during the ninety (90) calendar day period following the effective date of a Registration Statement pursuant to any other Demand Registration or a Piggyback Registration ( provided that the number of Registrable Shares included in such Piggyback Registration was not less than fifty percent (50%) of the number of Registrable Shares requested by the Shareholder to be included therein in accordance with Section 3.2(a)) or the pricing date of an Underwritten Shelf Take-Down. A request for registration made in accordance with Section 3.1(a) shall not count for the purposes of the limitations in this Section 3.1(b) if (A) the Shareholder determines in good faith to withdraw such request due to marketing conditions or regulatory reasons and give written notice of such determination to the Company prior to the effective date of the Registration Statement and prior to the execution of an underwriting agreement or purchase agreement relating to such request; provided that the Shareholder reimburses the Company for all Registration Expenses incurred in good faith by the Company in connection with such Demand Registration prior to the Company's receipt of such notice, (B) the Registration Statement relating to such Demand Request does not become effective within ninety (90) calendar days after the date such Registration Statement is filed with the SEC (other than by reason of the Shareholder having refused to proceed or a misrepresentation or an omission by the Shareholder), (C) prior to the sale of at least fifty percent (50%) of the Registrable Shares included in the applicable registration relating to such Demand Request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason and the Company fails to have such stop order, injunction, or other order or requirement removed, withdrawn or resolved to the reasonable satisfaction of the Shareholder within thirty (30) calendar days after the date of such order or (D) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied as a result of a default or breach thereunder by the Company that proximately and primarily caused the failure of such conditions.
(c) In connection with any Demand Request, the lead underwriter to administer the offering shall be chosen by the Shareholder, subject to the prior written consent, not to be unreasonably withheld, conditioned or delayed, of the Company.
9
SECTION 3.2 Piggyback Registration .
(a) If, at any time following the Effective Date until the Registration Rights Termination Date, the Company proposes or is required to file a Registration Statement under the Securities Act with respect to an offering of securities of the Company of the same class as the Registrable Shares (such securities " Similar Securities "), whether or not for sale for its own account, on a form and in a manner that would permit registration of the Registrable Shares (excluding a Registration Statement that is (i) solely in connection with a Special Registration, a dividend reinvestment plan or a rights offering, (ii) pursuant to a Demand Registration in accordance with Section 3.1 or a Shelf Registration or (iii) a "universal" Shelf Registration Statement), the Company shall give written notice as promptly as practicable, but not later than ten (10) calendar days prior to the anticipated date of filing of such Registration Statement, to the Shareholder of its intention to effect such registration and shall include in such registration all Registrable Shares with respect to which the Company has received a written request from the Shareholder for inclusion therein within ten (10) calendar days after the date of the Company's notice (a " Piggyback Registration "). In the event that the Shareholder makes such written request, the Shareholder may withdraw its Registrable Shares from such Piggyback Registration by giving written notice to the Company and the managing underwriter, if any, at any time at least two (2) Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company may terminate or withdraw any Piggyback Registration under this Section 3.2(a), whether or not the Shareholder has elected to include Registrable Shares in such registration. No Piggyback Registration shall count towards the number of Demand Registrations to which the Shareholder is entitled under Section 3.1(b).
(b) If a Piggyback Registration under Section 3.2(a) is proposed to be underwritten, the Company shall so advise the Shareholder as a part of the written notice given pursuant to Section 3.2(a). In such event, the lead underwriter to administer the offering shall be chosen by the Company.
(c) The Company shall pay all Registration Expenses (subject to and in accordance with Section 3.7) in connection with any Piggyback Registration, whether or not any registration or prospectus becomes effective or final or is terminated or withdrawn by the Company.
(d) If the registration of Similar Securities giving rise to a right to Piggyback Registration pursuant to this Section 3.2 is initiated by the Company for its own account, the Shareholder may include all the Registrable Shares it requests in such Piggyback Registration on the same terms and conditions as such Similar Securities included therein; provided , however , that if the offering to which such Piggyback Registration relates involves a firm commitment underwritten offering and the managing underwriter(s) of such offering advises the Company and the Shareholder in writing that, in its good faith opinion, the total number or dollar amount of Similar Securities proposed to be sold in such offering and Registrable Shares requested by the Shareholder to be included therein, in the aggregate, exceeds the largest number or dollar amount of securities that can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), the Company shall include in the applicable registration or prospectus only such number of securities that in the good faith opinion of such underwriter(s) can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be included in the following order of priority:
(i) first , the securities that the Company proposes to sell;
(ii) second , the Registrable Shares requested to be included by the Shareholder and any Similar Securities requested to be included by any other Persons exercising their contractual
10
rights to piggyback registration, pro rata (if applicable) on the basis of the aggregate number of securities so requested to be included therein; and
(iii) third , any securities requested to be included therein by any other Persons (other than the Company and the Shareholder and other Persons with piggyback registration rights), allocated among such Persons in such manner as the Company may determine.
(e) If the registration of Similar Securities giving rise to a right to Piggyback Registration pursuant to this Section 3.2 is initiated by the Company on behalf of holders of Similar Securities to be sold in an underwritten offering, the Shareholder may include all Registrable Shares requested by the Shareholder to be included in such registration in such offering on the same terms and conditions as any Similar Securities included therein; provided , however , that if the managing underwriter(s) of such offering advises the Company and the Shareholder in writing that, in its good faith opinion, the total number or dollar amount of securities to be included therein exceeds the largest number or dollar amount of securities that can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), the Company shall include in the applicable registration or prospectus only such number of securities that in the reasonable opinion of such underwriter(s) can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be so included in the following order of priority:
(i) first , the Similar Securities requested to be included therein by the holders of such Similar Securities, allocated among such Persons in such manner as the Company may determine;
(ii) second , the Registrable Shares requested to be included by the Shareholder and any Similar Securities requested to be included by any other Persons exercising their contractual rights to piggyback registration, pro rata (if applicable) on the basis of the aggregate number of securities so requested to be included therein;
(iii) third , Ordinary Shares or Similar Securities offered by the Company for its own account; and
(iv) fourth , Ordinary Shares or Similar Securities offered by any other holders of Ordinary Shares or Similar Securities requested to be included therein (other than the Company and the Shareholder and other Persons with piggyback registration rights), allocated among such Persons in such manner as the Company may determine.
SECTION 3.3 Shelf Registration .
(a) After the Effective Date, if the Company is eligible to use a Form S-3 or any comparable or successor form or forms for a short-form registration statement (a " Short-Form Registration Statement "), the Shareholder may make a written request (a " Shelf Notice ") to the Company to file a Short-Form Registration Statement as a Shelf Registration Statement, which Shelf Notice shall specify the kind and the aggregate amount of Registrable Shares of the Shareholder to be registered therein and the intended methods of distribution thereof. Following the delivery of a Shelf Notice, the Company shall file with the SEC promptly (and, in any event, within sixty (60) days following delivery of such Shelf Notice, provided that the Company shall not be required to make such filing until the first Business Day after the date on which the Form 8-K amendment contemplated by Section 7.14 of the Combination Agreement is filed with the SEC) such Shelf Registration Statement, which shall be an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) if the Company qualifies at such time to file such a Shelf Registration Statement (a " Required Shelf Registration Statement ") relating to the offer and sale of all Registrable Shares requested for inclusion therein by the Shareholder in accordance with the methods of distribution elected by the Shareholder (to the extent permitted in this
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Section 3.3). Any registration made by the Company under this Section 3.3(a) is referred to in this Agreement as a " Shelf Registration ." The Shareholder shall not deliver a Shelf Notice, and the Company shall not be required to effect a Shelf Registration, during the ninety (90) calendar day period following the effective date of a Registration Statement pursuant to any Demand Registration or any Piggyback Registration (provided that the number of Registrable Shares included in such Piggyback Registration was not less than fifty percent (50%) of the number of Registrable Shares requested by the Shareholder to be included therein in accordance with Section 3.2(a)) and shall not be required to effect more than two (2) Shelf Registrations. Subject to Section 3.5, the Company shall use its reasonable efforts to cause any Required Shelf Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, or to become automatically effective if such Required Shelf Registration Statement is an automatic shelf registration statement, and, so long as the Company remains eligible to register the resale of Registrable Shares on Form S-3, to keep such Required Shelf Registration Statement effective under the Securities Act until the earliest of the one hundred eightieth (180th) day following the initial effective date of such Required Shelf Registration Statement, such time as all Registrable Shares that could be sold thereunder have been sold or are no longer outstanding and the Registration Rights Termination Date (such period of effectiveness, the " Shelf Period ").
(b) If at any time that a Required Shelf Registration Statement covering Registrable Shares pursuant to this Section 3.3 is effective the Shareholder delivers a notice to the Company stating that the Shareholder intends to effect an offering (a " Shelf Take-Down ") of all or a portion of its Registrable Shares included by it on such Required Shelf Registration Statement and stating the number of Registrable Shares to be included in such Shelf Take-Down, then the Company shall as promptly as reasonably practicable amend or supplement such Required Shelf Registration Statement and take such other action as may be reasonably necessary to facilitate the sale of such Registrable Shares pursuant to such Shelf Take-Down.
(c) If the Shareholder elects by written request to the Company, a Shelf Take-Down shall be in the form of a Marketed Underwritten Offering (an " Underwritten Shelf Take-Down "), provided that the aggregate value of the Registrable Shares to be included in such Marketed Underwritten Offering must be at least twenty-five million dollars ($25,000,000), and the Company shall amend or supplement the applicable Required Shelf Registration Statement for such purpose as soon as practicable. In connection with any such Underwritten Shelf Take-Down, the lead underwriter to administer the offering shall be chosen by the Shareholder, subject to the prior written consent, not to be unreasonably withheld, conditioned or delayed, of the Company. The number of Underwritten Shelf Take-Downs the Shareholder may make pursuant to Shelf Registrations is limited to two in any Shelf Period.
SECTION 3.4 Termination of Registration Obligation. Notwithstanding anything to the contrary herein, the obligation of the Company to register Registrable Shares pursuant to this Article III and maintain the effectiveness of any Required Shelf Registration Statement or any Demand Registration Statement filed pursuant to Section 3.1 shall terminate on the first date on which the Shareholder (i) holds Registrable Shares representing less than one percent (1%) of the outstanding Voting Securities and (ii) is able to freely sell its remaining Registrable Shares under Rule 144 under the Securities Act without regard to the volume, manner of sale or filing requirements of such rule (the " Registration Rights Termination Date "); provided , however , the obligation of the Company to register Registrable Shares pursuant to this Article III and maintain the effectiveness of any Required Shelf Registration Statement or any Demand Registration Statement filed pursuant to Section 3.1 shall thereafter revive (the " Revival ") on the date on which the Shareholder receives Registrable Shares as a result of the Company's exercise of its call option pursuant to the terms of the Firewater One Shareholder Agreement if on such date the Shareholder either (i) as a result of the receipt of such
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Registrable Shares, holds Registrable Shares representing one percent (1%) or more of the outstanding Voting Securities or (ii) holds Registrable Shares representing less than one percent (1%) of the outstanding Voting Securities and is not then able to freely sell its Registrable Shares under Rule 144 under the Securities Act without regard to the volume, manner of sale and filing requirements of such rule. The Revival, if it occurs, shall be effective on the seventh business day following the Company's receipt of notice from the Shareholder of the Revival, which notice must include evidence reasonably satisfactory to the Company of the Shareholder's ownership of a number of Registrable Shares sufficient to give rise to the Revival and, in the case of a Revival under clause (ii) of the immediately-preceding sentence, of the basis for the Shareholder's inability to freely sell its Registrable Shares under Rule 144 under the Securities Act unless it is the same basis that exists at the time this Agreement becomes effective pursuant to Section 4.12. Notwithstanding anything to the contrary in this Agreement, if the Revival becomes effective pursuant to this Section 3.4, the Shareholder shall be entitled to initiate one Demand Registration and one Shelf Registration.
SECTION 3.5 Suspension. If the filing, initial effectiveness or continued use of a Registration Statement with respect to a Demand Registration or a Shelf Registration would require the Company to make a public disclosure of material non-public information, which disclosure the Company determines in good faith (after consultation with external legal counsel) would materially impact the Company or would materially impede, delay or interfere with the Company's ability to effect a reasonably imminent material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction, then the Company may, upon giving prompt written notice of such determination to the Shareholder, delay the filing or initial effectiveness of, or suspend the use of, as applicable, such Registration Statement or any Prospectus or Free Writing Prospectus; provided , however , that, unless otherwise approved in writing by the Shareholder, the Company shall not be permitted to do so for a period of time in excess of ninety (90) days in the case of any single delay or suspension, and the number of days in any 12-month period on which such a suspension is in effect shall not exceed one hundred twenty (120) (except that such number of days shall not exceed ninety (90) in the 12-month period commencing on the Closing Date (as defined in the Combination Agreement)). In the event that the Company exercises its rights under the preceding sentence, the Shareholder shall suspend, promptly upon receipt of the notice referred to above, the use of any Prospectus or Free Writing Prospectus relating to such Demand Registration or Shelf Registration in connection with any sale or offer to sell Registrable Shares. In the event of such a suspension for which notice is given by the Company after the effectiveness of the applicable Registration Statement, the period specified in clause (A) in Section 3.6(b) (or, in the case of a Required Shelf Registration Statement, the Shelf Period) shall be extended by the number of days of such suspension. The Shareholder shall keep confidential the receipt of any notice under this Section 3.5 and the contents thereof, except as required pursuant to applicable law, and, during any period of such delay or suspension, shall not offer or sell or otherwise transfer any Shareholder Shares or otherwise engage in trading of securities of the Company. Notwithstanding anything to the contrary, upon the commencement of any Scheduled Black-Out Period, the Shareholder shall immediately suspend the use of any Prospectus or Free Writing Prospectus in connection with any sale or offer to sell Registrable Shares until the termination of such Scheduled Black-Out Period.
SECTION 3.6 Registration Procedures. Subject to Section 3.5 and the Company's right to withdraw or terminate an applicable Piggyback Registration under Section 3.2(a), whenever the Shareholder shall have requested in accordance with Section 3.1, Section 3.2 or Section 3.3, as applicable, that any Registrable Shares be registered pursuant to Section 3.1, Section 3.2 or Section 3.3, as applicable, the Company shall:
(a) use reasonable efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares within the time periods therefor specified herein, reasonably cooperate with the Shareholder and each underwriter participating in the disposition of such
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Registrable Shares and their respective counsel in connection with any required filings with FINRA and, if such Registration Statement is not automatically effective upon filing, use reasonable efforts to cause such Registration Statement to be declared effective as promptly as practicable after the filing thereof; provided , however , that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including free writing prospectuses under Rule 433 under the Securities Act, each, a " Free Writing Prospectus "), the Company shall furnish to the Shareholder and each of the managing underwriter(s), if any, copies of the Registration Statement and all other documents proposed to be filed (including exhibits thereto), including upon the reasonable request of the Shareholder and to the extent reasonably practicable, all documents that would be incorporated by reference or deemed to be incorporated by reference therein (other than documents publicly available on the SEC's EDGAR system or any successor system), which Registration Statement and documents proposed to be filed will be subject to the reasonable review and comment of the Shareholder and its counsel ( provided that any comments are given to the Company promptly upon receipt of such documents and in no event later than three (3) calendar days after such documents are deemed under Section 4.4 to have been given to the Shareholder), at the Shareholder's sole expense;
(b) prepare and file with the SEC such amendments and supplements to such Registration Statement, the Prospectus used in connection therewith (including Free Writing Prospectuses) and Exchange Act reports as may be necessary to keep such Registration Statement (other than a Required Shelf Registration Statement, the effectiveness of which shall be maintained for the Shelf Period) effective for a period of (A) not less than sixty (60) days, (B) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter(s), a Prospectus is required by law to be delivered in connection with sales of Registrable Shares by an underwriter or dealer or (C) such shorter period as will terminate when all of the Registrable Shares covered by such Registration Statement have been disposed of in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act);
(c) furnish to the Shareholder and the managing underwriter(s), if any, such number of conformed copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary and final Prospectus, any Free Writing Prospectus, all exhibits and other documents filed therewith and such other documents as such Persons may reasonably request, including in order to facilitate the disposition of the Registrable Shares in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement; and the Company, subject to the penultimate paragraph of this Section 3.6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Shareholder and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Shares covered by such Prospectus and any such amendment or supplement thereto;
(d) use its reasonable efforts to register or qualify such Registrable Shares under such other securities or "blue sky" laws of such jurisdictions as the Shareholder reasonably requests and do any and all other acts and things that may be necessary or reasonably advisable to enable the Shareholder to consummate the disposition in such jurisdictions of the Registrable Shares in accordance with the intended method or methods of distribution thereof set forth in the applicable Registration Statement ( provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection; (ii) subject itself to taxation in any jurisdiction wherein it is not so subject; or (iii) take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject);
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(e) use its reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be registered with or approved by such other governmental agencies, authorities and self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the Shareholder or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares in the United States in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement;
(f) promptly notify the Shareholder and the managing underwriter(s), if any, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act of the occurrence of any event or existence of any fact as a result of which the Prospectus (including any information incorporated by reference therein) included in such Registration Statement, as then in effect, contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made, and, as promptly as practicable upon discovery, prepare and furnish to the Shareholder a reasonable number of copies of a supplement or amendment to such Prospectus, or file any other required document, as may be necessary so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;
(g) promptly notify the Shareholder and the managing underwriter(s) of any underwritten offering, if any, (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC for amendments or supplements to such Registration Statement or to such Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose; and (iv) of the suspension of the qualification of such securities for offering or sale in any jurisdiction, or the institution of any proceedings for any such purposes;
(h) enter into underwriting agreements with customary provisions as the Selling Holders (if such registration is a Demand Registration or an underwritten offering pursuant to a Shelf Registration) or the managing underwriter(s), if any, reasonably request in order to facilitate the disposition of such Registrable Shares;
(i) make available for inspection by the Shareholder and the Shareholder's counsel, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Shareholder or underwriter(s), all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by the Shareholder or such underwriter(s), attorney, accountant or agent in connection with such Registration Statement; provided , however , that the Shareholder shall, and shall use reasonable efforts to cause each such underwriter(s), accountant or other agent to (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company; and (ii) minimize the disruption to the Company's business in connection with the foregoing;
(j) make available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company's first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
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(k) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use reasonable efforts to obtain the withdrawal of such order as soon as reasonably practicable;
(l) subject to Section 3.7, cause its senior management to use reasonable efforts to support the marketing of the Registrable Shares covered by the Registration Statement pursuant to any Demand Registration or by a Required Shelf Registration Statement in connection with an underwritten offering thereunder (including participation in "road shows," to be scheduled in a collaborative manner so as not to interfere with the conduct of the business of the Company), taking into account the Company's business needs;
(m) if such Registrable Shares are being sold in an underwritten public offering, use its reasonable efforts to (i) furnish, on the date the underwriting agreement is signed and on the date such Registrable Shares are delivered to the underwriters for sale pursuant to such registration, a comfort letter in customary form, addressed to each of the managing underwriter(s), signed by the independent public accountants who have issued an audit report on the Company's financial statements included in the applicable Registration Statement and (ii) provide, on the date of the closing under the underwriting agreement, a legal opinion of the Company's outside counsel, addressed to each of the managing underwriter(s), in customary form and covering such matters of the type customarily covered by legal opinions of such nature and such other matters as may be reasonably requested by the managing underwriter(s).
Subject to the limitations on the Company's ability to delay the filing or initial effectiveness of, or suspend the use of, as applicable, a Registration Statement or a Prospectus or Free Writing Prospectus pursuant to Section 3.5, the Shareholder shall, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 3.6(f), promptly discontinue its disposition of Registrable Shares pursuant to any Registration Statement until the Shareholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(f). If so directed by the Company, the Shareholder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies, in the Shareholder's possession of the Prospectus covering such Registrable Shares at the time of receipt of such notice. In the event that the Company shall give any such notice, the period specified in clause (A) in Section 3.6(b) (or, in the case of a Required Shelf Registration Statement, the Shelf Period), as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when the Shareholder shall have been given the copies of the supplemented or amended Prospectus contemplated by Section 3.6(f).
In the case of any underwritten offering of Registrable Shares registered under a Required Shelf Registration Statement or a Demand Registration Statement filed pursuant to Section 3.1(a), or in the case of a Piggyback Registration under Section 3.2 or a Shelf Registration, (i) all Registrable Shares or Similar Securities to be included in such offering or registration, as the case may be, shall be subject to the applicable underwriting agreement with customary terms (including customary provisions relating to indemnities and contribution), and neither the Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person agrees to sell such Person's securities on the basis provided therein; and (ii) neither the Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person completes and executes all questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements, custody agreements and other documents reasonably required to be executed in connection therewith, and provides such other information to the Company and the underwriter(s) as may be reasonably requested to offer or register such Person's Registrable Shares or Similar Securities, as the case may be; provided , however , that (A) the Shareholder shall not be required to make any representations or
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warranties other than those related to title and ownership of, and power and authority to transfer, the Registrable Shares of the Shareholder included therein and the Shareholder's intended method of distribution of such Registrable Shares and as to the accuracy and completeness of statements made in the applicable Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information prepared and furnished to the Company or the managing underwriter(s) by the Shareholder or its Representatives pertaining to the Shareholder and (B) the aggregate amount of liability of the Shareholder pursuant to any indemnification obligation thereunder shall not exceed the net proceeds received by the Shareholder from such offering. As a condition to including Registrable Shares in any Registration Statement filed in accordance with this Article III , the Company may require that it shall have received an undertaking reasonably satisfactory to the Company from any underwriter to indemnify and hold harmless the Company and its directors, officers and Affiliates to the extent customarily provided by underwriters in connection with similar securities and offerings.
After the Shareholder has been notified of its opportunity to include Registrable Shares in any Piggyback Registration, the Shareholder (i) shall treat the Offering Confidential Information as confidential information, (ii) shall not use any Offering Confidential Information for any purpose other than to evaluate whether to include its Registrable Shares in such Piggyback Registration and (iii) shall not disclose any Offering Confidential Information to any Person other than such of its Representatives as have a need to know such Offering Confidential Information in connection with such purpose, which Representatives the Shareholder shall cause to comply with the requirements of this paragraph; provided , however , that the Shareholder may disclose Offering Confidential Information if such disclosure is required by legal process, but the Shareholder shall cooperate with the Company to limit the extent of such disclosure through protective order or otherwise, and to seek confidential treatment of the Offering Confidential Information. The Shareholder shall not offer or sell or otherwise transfer any Shareholder Shares or otherwise engage in trading of securities of the Company while in possession of Offering Confidential Information.
SECTION 3.7 Registration Expenses .
(a) Except as otherwise provided in this Agreement, all expenses incidental to the Company's performance of or compliance with this Article III (the " Registration Expenses "), including (i) all registration and filing fees (including (A) with respect to filings required to be made with the SEC, all applicable securities exchanges and/or FINRA and (B) compliance with securities or blue sky laws including any fees and disbursements of counsel for the underwriter(s) in connection with blue sky qualifications of the Registrable Shares pursuant to Section 3.6(d)); (ii) word processing, duplicating and printing expenses (including expenses of printing certificates for Registrable Shares in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses, if the printing of Prospectuses is requested by the managing underwriter(s), if any, or by the Shareholder); (iii) messenger, telephone and delivery expenses; (iv) fees and disbursements of counsel for the Company; and (v) fees and disbursements of all independent certified public accountants (including the fees and disbursements in connection with any "cold comfort" letters required by this Agreement) and other special experts, retained by the Company, shall be borne by the Company. The Company shall, in any event, pay its internal expenses, the expenses of any annual audit or quarterly review of the Company's financial statements by the Company's independent certified public accountants, the expenses of any liability insurance of the Company and the expenses and fees for listing the Registrable Shares to be registered on the applicable securities exchange. All underwriting discounts, selling commissions and transfer taxes and fees and disbursements of counsel and any other advisers or agents of the Shareholder (collectively, " Selling Expenses ") incurred in connection with the offering of any Registrable Shares shall be borne by the Shareholder. For the avoidance of doubt, the Company shall not bear any Selling Expenses in connection with its obligations under this Agreement. All expenses incurred in connection with any
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"road shows" undertaken pursuant to Section 3.6(l) shall be borne in equal proportion by the Shareholder and the Company.
(b) Notwithstanding anything to the contrary, the Company shall not be required to pay Registration Expenses for any Demand Registration begun pursuant to Section 3.1(a) the request for which has been subsequently withdrawn by the Shareholder unless the withdrawal is (i) requested under the circumstances described in Section 3.5; or (ii) based upon (A) any fact, circumstance, event, change, effect or occurrence that individually or in the aggregate with all other facts or circumstances, events, changes, effects or occurrences has a material adverse effect on the Company or (B) material adverse information concerning the Company that the Company had not publicly disclosed at least twenty-four (24) hours prior to such registration request and of which the Company had not otherwise notified, in writing, the Shareholder at the time of such request.
SECTION 3.8 Indemnification; Contribution .
(a) In the case of each offering of Registrable Shares made pursuant to this Article III , the Company shall, to the extent permitted by applicable law, indemnify and hold harmless the Shareholder and its directors and officers and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Shareholder from and against any and all losses, claims, damages or liabilities, actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable and documented fees of counsel) (collectively, " Claims ") to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleading or (iii) any violation by the Company of the Securities Act, the Exchange Act or any state securities law in connection with such offering; provided , however , that the Company shall not be liable to any such indemnified party in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement contained in or omission or alleged omission from such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by the Shareholder or any Representative of the Shareholder expressly for use therein; provided , further , that that the foregoing indemnity agreement, with respect to any Prospectus or Free Writing Prospectus, shall not inure to the benefit of any such indemnified party if the Person asserting any Claims against such indemnified party purchased Shareholder Shares and (x) prior to the time of sale of the Shareholder Shares to such Person (the " Time of Sale "), the Company shall have notified the Shareholder that the Prospectus or Free Writing Prospectus (as it existed prior to the Time of Sale) contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (y) such untrue statement or omission of a material fact was corrected in a Prospectus or Free Writing Prospectus, and such corrected Prospectus or Free Writing Prospectus was provided to the Shareholder in advance of the Time of Sale, and (z) such corrected preliminary Prospectus or Free Writing Prospectus was not conveyed to such Person at or prior to the Time of Sale. In connection with any underwritten offering of Registrable Shares made
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pursuant to this Article III , the Company shall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter to substantially the same extent as provided above with respect to the indemnification of the Shareholder by the Company.
(b) In the case of each offering of Registrable Shares made pursuant to this Article III , the Shareholder shall, to the extent permitted by applicable law, indemnify and hold harmless the Company and its directors and officers and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company from and against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleading, in each case only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing to the Company by the Shareholder or any Representative of the Shareholder expressly for use therein. The liability of the Shareholder under the foregoing provisions of this Section 3.8(b) shall be limited to an amount equal to the dollar amount of the net proceeds received by such Selling Holder from Shareholder Shares sold by such Selling Holder pursuant to such Registration Statement or Prospectus. In connection with any underwritten offering of Registrable Shares made pursuant to this Article III , the Company shall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter and any other selling securityholder in such offering (and, in the case of each such other selling securityholder, such selling securityholder's officers and directors and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such selling securityholder), to substantially the same extent as provided above with respect to the indemnification of the Company by the Shareholder.
(c) If, for any reason, the indemnification provisions contemplated by Section 3.8(a) or Section 3.8(b) are unavailable to or are insufficient to hold harmless an indemnified party in respect of any Claims referred to therein other than by the terms of this Section 3.8, then each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and the indemnified party, on the other hand, with respect to statements or omissions that that resulted in such Claims. The relative fault of such Indemnifying Party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such Indemnifying Party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 3.8(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any other relevant equitable
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considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 3.8(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentences of this Section 3.8(c). The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 3.9) any reasonable and documented legal or other fees or out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim. 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. Notwithstanding the foregoing, the Shareholder shall not be liable to contribute any amount in excess of the dollar amount of the net proceeds received by the Shareholder from Shareholder Shares sold by the Shareholder pursuant to such Registration Statement or Prospectus.
SECTION 3.9 Indemnification Procedures .
(a) If an indemnified party shall desire to assert any claim for indemnification provided for under Section 3.8 in respect of, arising out of or involving a Claim against the indemnified party, such indemnified party shall notify the Company or the Shareholder, as the case may be (the " Indemnifying Party "), in writing of such Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a " Claim Notice ") promptly after receipt by such indemnified party of written notice of the Claim; provided , however , that failure to provide a Claim Notice shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. The indemnified party shall deliver to the Indemnifying Party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Claim; provided , however , that failure to provide any such copies shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a Claim is made against an indemnified party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with separate counsel selected by the Indemnifying Party and reasonably satisfactory to the indemnified party. Should the Indemnifying Party so elect to assume the defense of a Claim, the Indemnifying Party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the indemnified party shall have the right to participate in defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the reasonable and documented fees and out-of-pocket expenses of counsel employed by the indemnified party for any period during which the Indemnifying Party has not assumed the defense thereof and as otherwise contemplated by the two immediately preceding sentences. If the Indemnifying Party chooses to defend any Claim, the indemnified party shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Claim, and the indemnified party shall use reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided
20
hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Claim without the Indemnifying Party's prior written consent. The Indemnifying Party may pay, settle or compromise a Claim without the written consent of the indemnified party, so long as such settlement (i) includes an unconditional release of the indemnified party from all liability in respect of such Claim, (ii) does not subject the indemnified party to any injunctive relief or other equitable remedy, and (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 3.10 Rule 144; Regulation S. The Company will use its reasonable efforts to timely file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, and to take such further action as the Shareholder may reasonably request, all to the extent required from time to time to enable the Shareholder to sell Registrable Shares without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 or Regulation S under the Securities Act or (ii) any similar rule or regulation hereafter adopted by the SEC.
SECTION 3.11 Holdback. The Company and the Shareholder agree, in connection with any underwritten offering of equity securities of the Company, upon the written request of the managing underwriter(s) of such offering, not to effect (other than pursuant to such underwritten offering) any public sale or distribution of Shareholder Shares or other equity securities of the Company, including any sale or distribution pursuant to Rule 144 or Rule 144A under the Securities Act, or make any short sale of, loan, grant any option for the purchase of, or otherwise transfer, any Registrable Shares or other equity securities of the Company, in each case during the Holdback Period (and, if (A) during the last seventeen (17) days of the Holdback Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (B) prior to the expiration of the Holdback Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Holdback Period, until the expiration of the eighteen (18) day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event), without the prior written consent of the managing underwriter(s). The foregoing sentence shall not apply to the Company in connection with (a) any sale, distribution or transfer of equity securities pursuant to a Special Registration, (b) the issuance by the Company of equity securities upon the exercise of an option or warrant or the conversion of a security, (c) the grant or award of any equity securities pursuant to employee benefit or compensation plans of the Company or (d) any equity securities issued or granted pursuant to any nonemployee director benefit or compensation plan or dividend reinvestment plan or share purchase plan.
SECTION 3.12 Existing Registration Statements. Notwithstanding anything to the contrary and subject to applicable law and regulation, the Company may satisfy any obligation hereunder to file or use reasonable efforts to file a Registration Statement or to have a Registration Statement become effective by designating, by notice to the Shareholder, a Registration Statement that previously has been filed with the SEC or become effective, as the case may be, as the relevant Registration Statement for purposes of satisfying such obligation, and all references to any such obligation shall be construed accordingly; provided that such previously filed Registration Statement may be amended or, subject to applicable securities laws, supplemented to add the number of Registrable Shares, and, to the extent necessary, to identify selling securityholders thereunder. To the extent this Agreement refers to the filing or effectiveness of other Registration Statements by or at a specified time and the Company has, in lieu of then filing such Registration Statements or having such Registration Statements become effective, designated a previously filed or effective Registration Statement as the relevant Registration Statement for such purposes, in accordance with the preceding sentence, such references shall be construed to refer to such designated Registration Statement, as amended.
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MISCELLANEOUS
SECTION 4.1 Injunctive Relief. Each party hereto acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any of the provisions of this Agreement and that the remedy at law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that the other parties shall, in addition to any other rights or remedies which they may have, be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction to compel specific performance of, or restrain any party from violating, any of such provisions. In connection with any action or proceeding for injunctive relief, each party hereto hereby waives the claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted by law, to have each provision of this Agreement specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of injunctive relief against it enjoining or restraining any breach or threatened breach of such provisions of this Agreement.
SECTION 4.2 Assignments. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. None of the parties may directly or indirectly assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the other parties. Any purported direct or indirect assignment in violation of this Section 4.2 shall be null and void ab initio.
SECTION 4.3 Amendments; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by (i) the Company, where enforcement of the amendment, modification, discharge or waiver is sought against the Company; or (ii) the Shareholder, where enforcement of the amendment, modification, discharge or waiver is sought against the Shareholder. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or the Shareholder of a breach of or a default under any of the provisions of this Agreement or the failure to exercise or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
SECTION 4.4 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and shall be deemed given to a party when (i) delivered to the appropriate address by hand or by nationally recognized overnight courier service; (ii) sent by facsimile with confirmation of transmission by the transmitting equipment; or (iii) sent by electronic mail (with return receipt received), in each case, to the following addresses, electronic mail addresses or facsimile numbers and marked to the attention of the person (by name or title) designated below, or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided below:
To the Company:
CF
Industries Holdings, Inc.
4 Parkway North, Suite 400
Deerfield, Illinois 60015
Telephone: (847) 405-2400
Facsimile: (847) 405-2711
Email: dbarnard@cfindustries.com
Attention: Douglas C. Barnard
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With copies (which shall not constitute notice) to:
Skadden,
Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
Facsimile: (312) 407-0411
Email: brian.duwe@skadden.com
richard.witzel@skadden.com
Attention: Brian W. Duwe
Richard C. Witzel, Jr.
To any the Shareholder:
OCI N.V.
Honthorststraat 19
1071 DC Amsterdam
The Netherlands
Attn: Erika Wakid
Facsimile: +31 20 723 4501
Email: Erika.Wakid@oci.nl
With copies (which shall not constitute notice) to:
Cleary
Gottlieb Steen and Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attn: Robert P. Davis
Attn: Paul M. Tiger
Facsimile: (212) 225-3999
Email: rdavis@cgsh.com
Email: ptiger@cgsh.com
SECTION 4.5 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury. THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT MATTER OR FORMATION INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each party hereto irrevocably agrees that the state and federal courts located in the state of New York are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Agreement (" Proceedings ") shall therefore be brought exclusively in any state federal court located in the state of New York. Solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, each party irrevocably (i) waives any objection to Proceedings in such courts on the grounds of venue or on the grounds of forum non conveniens and (ii) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.4. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 4.6 Interpretation. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of intent or interpretation
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arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the articles of association of the Company, the terms of this Agreement shall prevail.
SECTION 4.7 Entire Agreement; No Other Representations. This Agreement constitutes the entire agreement, and supersedes all prior agreements, understandings representations and warranties both written and oral, between the parties with respect to the subject matter hereof.
SECTION 4.8 No Third-Party Beneficiaries. Except as explicitly provided for in Section 3.8 and Section 3.9, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
SECTION 4.9 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision; and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
SECTION 4.10 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
SECTION 4.11 Further Assurances. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Effective Date, the parties hereto shall each use reasonable efforts to promptly (i) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable law or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any governmental or regulatory authority or third party any and all necessary clearances, waivers, consents, authorizations, approvals, permits or orders required to be obtained in connection with the performance of this Agreement and the consummation of the transactions contemplated hereby; and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
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Name: | ||||||
Title: |
[ Signature Page to Registration Rights Agreement ]
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OCI N.V. | ||||
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Name: |
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[ Signature Page to Registration Rights Agreement ]
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Exhibit D
REGISTRATION RIGHTS AGREEMENT
AMONG
CF B.V.
CAPRICORN CAPITAL B.V.
LEO CAPITAL B.V.
AND
AQUARIUS INVESTMENTS B.V.
DATED AS OF [
·
], 2016
1
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Page | ||
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ARTICLE I DEFINITIONS |
3 | |||
SECTION 1.1 |
Definitions |
3 |
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SECTION 1.2 |
Other Definitional Provisions |
7 | ||
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8 |
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SECTION 2.1 |
Representations and Warranties of the Company |
8 |
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SECTION 2.2 |
Representations and Warranties of the Shareholders |
8 | ||
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9 |
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SECTION 3.1 |
Demand Request |
9 |
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SECTION 3.2 |
Piggyback Registration |
11 | ||
SECTION 3.3 |
Shelf Registration |
12 | ||
SECTION 3.4 |
Termination of Registration Obligation |
13 | ||
SECTION 3.5 |
Suspension |
14 | ||
SECTION 3.6 |
Registration Procedures |
14 | ||
SECTION 3.7 |
Registration Expenses |
18 | ||
SECTION 3.8 |
Indemnification; Contribution |
19 | ||
SECTION 3.9 |
Indemnification Procedures |
21 | ||
SECTION 3.10 |
Rule 144; Regulation S |
22 | ||
SECTION 3.11 |
Holdback |
22 | ||
SECTION 3.12 |
Existing Registration Statements |
22 | ||
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23 |
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SECTION 4.1 |
Shareholder Actions |
23 |
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SECTION 4.2 |
Joint and Several Liability |
23 | ||
SECTION 4.3 |
Injunctive Relief |
23 | ||
SECTION 4.4 |
Assignments |
23 | ||
SECTION 4.5 |
Amendments; Waiver |
23 | ||
SECTION 4.6 |
Notices |
23 | ||
SECTION 4.7 |
Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury |
25 | ||
SECTION 4.8 |
Interpretation |
25 | ||
SECTION 4.9 |
Entire Agreement; No Other Representations |
25 | ||
SECTION 4.10 |
No Third-Party Beneficiaries |
25 | ||
SECTION 4.11 |
Severability |
25 | ||
SECTION 4.12 |
Counterparts |
25 | ||
SECTION 4.13 |
Further Assurances |
25 |
2
REGISTRATION RIGHTS AGREEMENT, dated as of [ · ], 2016 (this " Agreement "), among CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of the Netherlands, which will convert into a public company with limited liability ( naamloze vennootschap ) in accordance with the provisions of the Combination Agreement (as defined herein) (the " Company "), Capricorn Capital B.V., a private limited liability company incorporated under the law of the Netherlands (" Capricorn "), Leo Capital B.V., a private limited liability company incorporated under the law of the Netherlands (" Leo "), and Aquarius Investments B.V., a private limited liability company incorporated under the law of the Netherlands (" Aquarius " and, together with Capricorn and Leo, the " Shareholders ").
WHEREAS, CF Industries Holdings, Inc., a Delaware corporation (" Cambridge "), the Company, Finch Merger Company LLC, a Delaware limited liability company and wholly-owned, direct or indirect, subsidiary of the Company (" MergerCo " and, together with Cambridge and the Company, the " Cambridge Parties "), and OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of the Netherlands (" Oxford "), are parties to a Combination Agreement, dated as of August 6, 2015, as amended from time to time prior to the date hereof (the " Combination Agreement "), pursuant to which, among other things, (i) Oxford will convey to the Cambridge Parties, and the Cambridge Parties will acquire from Oxford, certain equity ownership interests in certain Persons owned, directly or indirectly, in their entirety by Oxford in exchange for consideration consisting, in whole or in part, of Ordinary Shares (as defined below) to be issued by the Company to Oxford and (ii) MergerCo will merge with and into Cambridge, with Cambridge becoming a wholly-owned, direct or indirect, subsidiary of the Company (the " Transaction "), upon the terms and conditions set forth in the Combination Agreement;
WHEREAS, pursuant to the Combination Agreement, the Shareholders will acquire Ordinary Shares; and
WHEREAS, in connection with the execution and delivery of the Combination Agreement and the consummation of the Transaction, the Company has agreed to grant the Shareholders certain registration rights as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1.1 Definitions. As used in this Agreement:
" Affiliate " shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, provided that neither the Shareholders nor any of their Subsidiaries shall be deemed to be an Affiliate of the Company or vice versa.
" Agreement " shall have the meaning set forth in the preamble to this Agreement.
" Aquarius " shall have the meaning set forth in the preamble to this Agreement.
" Beneficially Own " shall mean, with respect to any securities, (i) having "beneficial ownership" of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (as in effect on the date of this Agreement); (ii) having the right to become the Beneficial Owner of such securities (whether such right is exercisable immediately or only after the passage of time or the occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (iii) having an exercise or conversion privilege or a settlement payment or mechanism with respect to any option,
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warrant, right, convertible security, stock appreciation right, swap agreement or other security, contract right or derivative position, whether or not currently exercisable, at a price related to the value of the securities for which Beneficial Ownership is being determined or (A) having a value determined in whole or part with reference to, or derived in whole or in part from, the value of the securities for which Beneficial Ownership is being determined and (B) that increases in value as the value of the securities for which Beneficial Ownership is being determined increases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of the securities for which Beneficial Ownership is being determined (excluding any interests, rights, options or other securities set forth in Rule 16a-1(c)(1)-(5) or (7) promulgated pursuant to the Exchange Act (as in effect on the date of this Agreement)). The terms " Beneficial Owner ," " Beneficial Ownership " and " Beneficially Owned " shall have a correlative meaning.
" Business Day " shall mean a day other than a Saturday or Sunday or public holiday in New York, New York.
" Capricorn " shall have the meaning set forth in the preamble to this Agreement.
" Claim Notice " shall have the meaning set forth in Section 3.9(a).
" Claims " shall have the meaning set forth in Section 3.8(a).
" Combination Agreement " shall have the meaning set forth in the recitals to this Agreement.
" Company " shall have the meaning set forth in the preamble to this Agreement.
" Demand Registration " shall have the meaning set forth in Section 3.1(a).
" Demand Registration Statement " shall have the meaning set forth in Section 3.1(a).
" Demand Request " shall have the meaning set forth in Section 3.1(a).
" Effective Date " shall mean the date on which the Transaction is consummated.
" Exchange Act " shall mean the United States Securities Exchange Act of 1934, as amended.
" FINRA " shall mean the Financial Industry Regulatory Authority, Inc.
" Form S-3 " shall mean such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.
" Free Writing Prospectus " shall have the meaning set forth in Section 3.6(a).
" Holdback Period " shall mean, with respect to any registered offering of equity securities of the Company, the period beginning ten (10) days before the effective date of the related registration statement and continuing until the expiration of ninety (90) days (or such shorter period as the managing underwriter(s) permit) after the effective date of the related registration statement (except that, in the case of any such registered offering that is a takedown from a Shelf Registration Statement, the Holdback Period shall be the period beginning ten (10) days before the pricing date in connection with such takedown and continuing until the expiration of ninety (90) days (or such shorter period as the managing underwriter(s) permit) after such pricing date).
" Indemnifying Party " shall have the meaning set forth in Section 3.9(a).
" Initiating Holders " shall have the meaning set forth in Section 3.1(a).
" Initiating Shelf Holders " shall have the meaning set forth in Section 3.3(a).
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" Leo " shall have the meaning set forth in the preamble to this Agreement.
" Marketed Underwritten Offering " shall mean any underwritten offering that involves a customary "road show" (including an "electronic road show") or other substantial marketing effort by the Company and the underwriters over a period of at least 48 hours.
" Non-Underwritten Offering " shall mean an offering in which securities of the Company are not sold to an underwriter or underwriters for reoffering to the public.
" NYSE " shall mean New York Stock Exchange LLC.
" Offering Confidential Information " shall mean, with respect to any registered offering or proposed registered offering (i) the Company's plan to file the relevant Registration Statement and engage in the offering so registered, (ii) any information regarding the offering being registered (including the potential timing, price, number of shares, underwriters or other counterparties, selling securityholders or plan of distribution) and (iii) any other information (including information contained in draft supplements or amendments to offering materials) provided to the Shareholders by the Company (or by third parties) in connection with the applicable registration or offering; provided , however , that Offering Confidential Information shall not include information that was or becomes generally available to the public (including as a result of the filing of the relevant Registration Statement) other than as a result of a disclosure by the Shareholders or their Representatives.
" Ordinary Shares " shall mean the ordinary shares of the Company.
" Organizational Documents " shall mean, with respect to any Person, (a) if a corporation, the memorandum and articles of association, articles or certificate of incorporation and the bylaws, (b) if a general partnership or limited liability partnership, the partnership agreement and any statement of partnership, (c) if a limited partnership, the limited partnership agreement and the certificate of limited partnership, (d) if a limited liability company, the certificate of formation and limited liability company agreement, (e) if another type of Person, any charter or similar document adopted or filed in connection with the creation, formation or organization of the Person, and (f) any similar document, amendment or supplement to any of the foregoing.
" Other Shares " shall mean shares of any class of share capital of the Company (other than Ordinary Shares) that are entitled to vote in the election of directors.
" Oxford " shall have the meaning set forth in the preamble to this Agreement.
" Participating Holders " shall have the meaning set forth in Section 3.1(b).
" Person " shall mean any individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof or any other entity.
" Piggyback Holder " shall have the meaning set forth in Section 3.2(a).
" Piggyback Registration " shall have the meaning set forth in Section 3.2(a).
" Proceedings " shall have the meaning set forth in Section 4.7.
" Prospectus " shall mean the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement and relating to Registrable Shares, as amended or supplemented and including all material, if any, incorporated by reference in such prospectus or prospectuses.
" Registrable Shares " shall mean, at any time of determination, (a) the Ordinary Shares that were held by the Shareholders on the Effective Date, immediately after giving effect to the
5
Closing, (b) all Ordinary Shares or Other Shares issued to the Shareholders in respect of any such securities or into which any such securities shall be converted or exchanged in connection with stock splits, reverse stock splits, stock dividends or distributions, combinations or similar recapitalizations, reclassifications or capital reorganizations occurring thereafter, and (c) all Ordinary Shares purchased by the Shareholders after the Effective Date, immediately after giving effect to the Closing, not in violation of the terms of this Agreement, in each case, that are held by any Shareholder at such time. As to any particular Registrable Shares, such securities shall cease to be Registrable Shares when (i) a registration statement registering such securities under the Securities Act has become effective and such securities have been sold or otherwise transferred by the holder thereof pursuant to such effective registration statement, (ii) the holder thereof may sell the entire amount of the Registrable Shares held by such holder in a single sale pursuant to Rule 144, (iii) such securities are sold in accordance with Rule 144 (or any successor provision) under the Securities Act or (iv) such securities are transferred to a Person not entitled to the registration rights granted by this Agreement.
" Registration Expenses " shall have the meaning set forth in Section 3.7(a).
" Registration Rights Termination Date " shall have the meaning set forth in Section 3.4.
" Registration Statement " shall mean any registration statement of the Company which covers any of the Registrable Shares pursuant to the provisions of this Agreement, including any Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all documents, if any, incorporated by reference in such Registration Statement.
" Required Shelf Registration Statement " shall have the meaning set forth in Section 3.3(a).
" Scheduled Black-Out Period " means any ordinary course blackout period declared by the Company in connection with an annual or quarterly earnings release in accordance with Company policy.
" SEC " shall mean the U.S. Securities and Exchange Commission.
" Securities Act " shall mean the United States Securities Act of 1933, as amended.
" Selling Expenses " shall have the meaning set forth in Section 3.7(a).
" Selling Holders " shall have the meaning set forth in Section 3.6(a).
" Shareholder Shares " shall mean all Voting Securities Beneficially Owned by the Shareholders.
" Shareholders " shall have the meaning set forth in the preamble to this Agreement.
" Shareholders' Agreement " shall mean the Agreement made on August 6, 2015 by and among the Company, Oxford, Capricorn, Leo and Aquarius, as amended from time to time prior to the date hereof.
" Shelf Notice " shall have the meaning set forth in Section 3.3(a).
" Shelf Period " shall have the meaning set forth in Section 3.3(a).
" Shelf Registration " shall have the meaning set forth in Section 3.3(a).
" Shelf Registration Statement " shall mean a "shelf" registration statement providing for the registration, and the sale on a continuous or delayed basis, of securities pursuant to Rule 415 under the Securities Act.
" Shelf Take-Down " shall have the meaning set forth in Section 3.3(b).
" Short-Form Registration Statement " shall have the meaning set forth in Section 3.3(a).
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" Similar Securities " shall have the meaning set forth in Section 3.2(a).
" Special Registration " shall mean the registration of (i) equity securities and/or options or other rights in respect thereof solely registered on Form S-4, Form S-8 or any successor forms thereto or any other form for the registration of securities issued or to be issued in connection with a merger, acquisition or employee benefit plan; or (ii) shares of equity securities and/or options or other rights in respect thereof to be offered solely in connection with an employee benefit or dividend reinvestment plan.
" Time of Sale " shall have the meaning set forth in Section 3.8(a).
" Transaction " shall have the meaning set forth in the recitals to this Agreement.
" Underwritten Shelf Take-Down " shall have the meaning set forth in Section 3.3(c).
" Underwritten Shelf Take-Down Notice " shall have the meaning set forth in Section 3.3(c).
" Voting Securities " shall mean the Ordinary Shares together with any Other Shares.
SECTION 1.2 Other Definitional Provisions. Except as expressly set forth in this Agreement or unless the express context otherwise requires:
(a) the words "hereof", "herein", and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(c) any references herein to a specific Section or Article shall refer, respectively, to such Section or Article of this Agreement;
(d) any reference herein to "USD" and "$" are to United States Dollars;
(e) wherever the word "include", "includes" or "including" is used in this Agreement, it shall be deemed to be followed by the words "without limitation";
(f) references herein to any gender includes the other gender;
(g) a reference to a Person (including a party to this Agreement) includes a reference to that Person's legal personal representatives and permitted successors and assigns;
(h) a reference to a document is a reference to that document as may be supplemented, amended or modified from time to time;
(i) any reference in this Agreement to any statute or statutory provision shall be deemed to include any statute or statutory provision that amends, extends, consolidates, re-enacts or replaces same, or which has been amended, extended, consolidated, re-enacted or replaced (whether before or after the date of this Agreement) by same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute; and
(j) any reference to a U.S. legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than the United States, be deemed to include a reference to what most nearly approximates in that jurisdiction to the U.S. legal term.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Representations and Warranties of the Company. The Company represents and warrants to the Shareholders as of the date hereof that:
(a) The Company is a private limited company ( besloten vennootschap ) incorporated under the law of the Netherlands.
(b) The Company has all requisite organizational power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of the Company, including the approval of the board of directors of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Shareholders, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and, as to enforceability, by general equitable principles.
(c) The execution and delivery of this Agreement by the Company and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Company; (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an encumbrance on any of the assets of the Company (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Company; or (iii) conflict with, breach or violate any law applicable to the Company or by which its properties are bound or affected, except, in the case of clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement.
SECTION 2.2 Representations and Warranties of the Shareholders. Each Shareholder represents and warrants, jointly and severally, to the Company as of the date hereof that:
(a) Such Shareholder is duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation.
(b) Such Shareholder has all requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by such Shareholder of this Agreement and the performance of each of their obligations hereunder has been duly authorized by all necessary action of such Shareholder, including the approval of its board of directors. This Agreement has been duly executed and delivered by such Shareholder and, assuming the due authorization, execution and delivery of this Agreement by the Company, constitutes the legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and, as to enforceability, by general equitable principles.
(c) The execution and delivery of this Agreement by such Shareholder and the performance of each of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder; (ii) a breach or violation of, a
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termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an encumbrance on any of the assets of such Shareholder (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon such Shareholder; or (iii) conflict with, breach or violate any law applicable to such Shareholder or by which its properties are bound or affected, except, in the case of clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to impair the ability of such Shareholder to perform its obligations under this Agreement.
ARTICLE III
REGISTRATION RIGHTS
(a) After the Effective Date and until the Registration Rights Termination Date, at any time when no Required Shelf Registration Statement is available for the resale of Registrable Shares (other than by reason of a suspension pursuant to Section 3.5), one or more Shareholders may request in writing that the Company effect a registration under the Securities Act of such part of such Shareholders' Registrable Shares as such Shareholders request to transfer in a Marketed Underwritten Offering or a Non-Underwritten Offering in each case subject to the minimum threshold requirement applicable to such registration pursuant to Section 3.1(c) (such request, a " Demand Request ," and such Shareholders the " Initiating Holders " with respect to such Demand Request). Upon receipt of any Demand Request, the Company shall use reasonable efforts to file, not later than the later of (x) the date that is sixty (60) calendar days after receipt by the Company of such Demand Request and (y) the first Business Day after the date on which the Form 8-K amendment contemplated by Section 7.14 of the Combination Agreement is filed with the SEC, in accordance with the provisions of this Agreement, a Registration Statement with the SEC (a " Demand Registration Statement ") covering such Registrable Shares to be sold in a Marketed Underwritten Offering or a Non-Underwritten Offering, at the sole discretion of the Initiating Holders (the number and amount of Registrable Shares required to be registered on such Demand Registration Statement being subject to Section 3.1(b)). Each Demand Request shall specify the identity of each Initiating Holder, the number of Registrable Shares of each Initiating Holder requested to be registered, the aggregate number of Registrable Shares requested to be registered by the Initiating Holders and the intended plan of distribution of such Registrable Shares. Any registration requested by one or more Shareholders under this Section 3.1(a) is referred to in this Agreement as a " Demand Registration ." Unless otherwise agreed by the Company, any Demand Registration to be made by way of a Marketed Underwritten Offering must relate to a firm commitment underwriting. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to file or make available any Shelf Registration Statement, or otherwise register securities for offer or sale on a continuous or delayed basis, pursuant to this Section 3.1.
(b) After receipt of a Demand Request, the Company shall give written notice thereof to all Shareholders, other than the Initiating Holders, with respect to such Demand Request, not later than ten (10) calendar days after such receipt and shall include in the applicable Demand Registration Statement (i) the Registrable Shares specified in such Demand Request and (ii) all Registrable Shares with respect to which the Company has received a written request for such inclusion from Shareholders, other than such Initiating Holders, within seven (7) calendar days after the date of the Company's giving such notice (such Shareholders providing such requests, together with such Initiating Holders, being referred to herein as the " Participating Holders " with respect to the applicable Demand Registration). The Company and holders of Similar Securities
9
may participate in and include any Similar Securities in the Demand Registration relating to such Demand Request. If the managing underwriter(s) of the offering to which a Demand Registration Statement relates advise the Company and the Participating Holders in writing that, in its good faith opinion, the total number or dollar amount of Registrable Shares and Similar Securities proposed to be sold in such offering exceeds the largest number or dollar amount of securities that can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), the Company shall include in the applicable Demand Registration Statement only such number of securities that in the good faith opinion of such underwriter(s) can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), allocated as follows: (i) first, the Registrable Shares requested to be included by the Participating Holders, pro rata on the basis of the number of Registrable Shares requested in accordance with the terms hereof to be included in such Demand Registration Statement and (ii) second, any securities requested to be included therein by any other Persons (including the Company), allocated among such Persons in such manner as the Company may determine.
(c) The Shareholders shall be entitled to initiate no more than three (3) Demand Registrations; provided , however , that the Company shall not be obligated to effect any Demand Registration (i) unless the aggregate value of the Registrable Shares requested to be registered by the Shareholders in such Demand Registration is at least twenty-five million dollars ($25,000,000); and (ii) during the ninety (90) calendar day period following the effective date of a Registration Statement pursuant to any other Demand Registration or a Piggyback Registration ( provided that the number of Registrable Shares included in such Piggyback Registration was not less than fifty percent (50%) of the number of Registrable Shares requested by the Shareholders to be included therein in accordance with Section 3.2(a)). A request for registration made in accordance with Section 3.1(a) shall not count for the purposes of the limitations in this Section 3.1(c) if (A) the Initiating Holders determine in good faith to withdraw such request due to marketing conditions or regulatory reasons and give written notice of such determination to the Company prior to the effective date of the Registration Statement and prior to the execution of an underwriting agreement or purchase agreement relating to such request; provided that the Initiating Holders reimburse the Company for all Registration Expenses incurred in good faith by the Company in connection with such Demand Registration prior to the Company's receipt of such notice, (B) the Registration Statement relating to such Demand Request does not become effective within ninety (90) calendar days after the date such Registration Statement is filed with the SEC (other than by reason of any Participating Holder having refused to proceed or a misrepresentation or an omission by any Participating Holder), (C) prior to the sale of at least fifty percent (50%) of the Registrable Shares included in the applicable registration relating to such Demand Request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason and the Company fails to have such stop order, injunction, or other order or requirement removed, withdrawn or resolved to the reasonable satisfaction of the Shareholder within thirty (30) calendar days after the date of such order or (D) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied as a result of a default or breach thereunder by the Company that proximately and primarily caused the failure of such conditions.
(d) In connection with any Demand Request, the lead underwriter to administer the offering shall be chosen by the Initiating Holders holding a majority of the Registrable Shares included in such Demand Request, subject to the prior written consent, not to be unreasonably withheld, conditioned or delayed, of the Company.
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SECTION 3.2 Piggyback Registration .
(a) If, at any time following the Effective Date until the Registration Rights Termination Date, the Company proposes or is required to file a Registration Statement under the Securities Act with respect to an offering of securities of the Company of the same class as the Registrable Shares (such securities " Similar Securities "), whether or not for sale for its own account, on a form and in a manner that would permit registration of the Registrable Shares (excluding a Registration Statement that is (i) solely in connection with a Special Registration, a dividend reinvestment plan or a rights offering, (ii) a "universal" Shelf Registration Statement or (iii) pursuant to a Demand Registration in accordance with Section 3.1 or a Shelf Registration), the Company shall give written notice as promptly as practicable, but not later than ten (10) calendar days prior to the anticipated date of filing of such Registration Statement, to each Shareholder of its intention to effect such registration and, in the case of each Shareholder, shall include in such registration all of such Shareholder's Registrable Shares with respect to which the Company has received a written request from such Shareholder for inclusion therein within ten (10) calendar days after the date of the Company's notice (a " Piggyback Registration " and any such requesting Shareholder that has not withdrawn its Registrable Shares from such Piggyback Registration a " Piggyback Holder " with respect to such Piggyback Registration). In the event that a Shareholder makes such written request, such Shareholder may withdraw its Registrable Shares from such Piggyback Registration by giving written notice to the Company and the managing underwriter, if any, at any time at least two (2) Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company may terminate or withdraw any Piggyback Registration under this Section 3.2(a), whether or not any Shareholder has elected to include Registrable Shares in such registration. No Piggyback Registration shall count towards the number of Demand Registrations to which the Shareholders are entitled under Section 3.1(c).
(b) If a Piggyback Registration under Section 3.2(a) is proposed to be underwritten, the Company shall so advise the Shareholders as a part of the written notice given pursuant to Section 3.2(a). In such event, the lead underwriter to administer the offering shall be chosen by the Company.
(c) The Company shall pay all Registration Expenses (subject to and in accordance with Section 3.7) in connection with any Piggyback Registration, whether or not any registration or prospectus becomes effective or final or is terminated or withdrawn by the Company.
(d) If the registration of Similar Securities giving rise to a right to Piggyback Registration pursuant to this Section 3.2 is initiated by the Company for its own account, each Piggyback Holder with respect to such Piggyback Registration may include all the Registrable Shares it requests in such Piggyback Registration on the same terms and conditions as such Similar Securities included therein; provided , however , that if the offering to which such Piggyback Registration relates involves a firm commitment underwritten offering and the managing underwriter(s) of such offering advises the Company and the Piggyback Holders with respect to such Piggyback Registration in writing that, in its good faith opinion, the total number or dollar amount of Similar Securities proposed to be sold in such offering and Registrable Shares requested by such Piggyback Holders to be included therein, in the aggregate, exceeds the largest number or dollar amount of securities that can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), the Company shall include in the applicable registration or prospectus only such number of securities that in the good faith opinion of such underwriter(s) can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be included in the following order of priority:
(i) first , the securities that the Company proposes to sell;
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(ii) second , the Registrable Shares requested to be included by such Piggyback Holders and any Similar Securities requested to be included by any other Persons exercising their contractual rights to piggyback registration, pro rata (if applicable) on the basis of the aggregate number of securities so requested to be included therein; and
(iii) third , any securities requested to be included therein by any other Persons (other than the Company and such Piggyback Holders and other Persons with piggyback registration rights), allocated among such Persons in such manner as the Company may determine.
(e) If the registration of Similar Securities giving rise to a right to Piggyback Registration pursuant to this Section 3.2 is initiated by the Company on behalf of holders of Similar Securities to be sold in an underwritten offering, the Piggyback Holders with respect to such Piggyback Registration may include all Registrable Shares requested by them to be included in such registration in such offering on the same terms and conditions as any Similar Securities included therein; provided , however , that if the managing underwriter(s) of such offering advises the Company and such Piggyback Holders in writing that, in its good faith opinion, the total number or dollar amount of securities to be included therein exceeds the largest number or dollar amount of securities that can be sold in such offering without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), the Company shall include in the applicable registration or prospectus only such number of securities that in the reasonable opinion of such underwriter(s) can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be so included in the following order of priority:
(i) first , the Similar Securities requested to be included therein by the holders of such Similar Securities, allocated among such Persons in such manner as the Company may determine;
(ii) second , the Registrable Shares requested to be included by such Piggyback Holders, and any Similar Securities requested to be included by any other Persons exercising their contractual rights to piggyback registration, pro rata (if applicable) on the basis of the aggregate number of securities so requested to be included therein;
(iii) third , Ordinary Shares or Similar Securities offered by the Company for its own account; and
(iv) fourth, Ordinary Shares or Similar Securities offered by any other holders of Ordinary Shares or Similar Securities requested to be included therein (other than the Company and such Piggyback Holders and other Persons with piggyback registration rights), allocated among such Persons in such manner as the Company may determine.
SECTION 3.3 Shelf Registration .
(a) After the Effective Date, if the Company is eligible to use a Form S-3 or any comparable or successor form or forms for a short-form registration statement (a " Short-Form Registration Statement "), one or more Shareholders (such Shareholders, the " Initiating Shelf Holders ") may make a written request (a " Shelf Notice ") to the Company to file a Short-Form Registration Statement as a Shelf Registration Statement, which Shelf Notice shall specify the kind and the aggregate amount of Registrable Shares of the Initiating Shelf Holders to be registered therein and the intended methods of distribution thereof. Following the delivery of a Shelf Notice, the Company shall file with the SEC promptly (and, in any event, within sixty (60) days following delivery of such Shelf Notice, provided that the Company shall not be required to make such filing until the first Business Day after the date on which the Form 8-K amendment contemplated by Section 7.14 of the Combination Agreement is filed with the SEC) such Shelf Registration Statement, which shall be an automatic shelf registration statement (as defined in Rule 405 under
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the Securities Act) if the Company qualifies at such time to file such a Shelf Registration Statement (such Shelf Registration Statement, the " Required Shelf Registration Statement ") relating to the offer and sale of all Registrable Shares requested for inclusion therein by the Initiating Shelf Holders in accordance with the methods of distribution elected by the Initiating Shelf Holders (to the extent permitted in this Section 3.3). Any registration made by the Company under this Section 3.3(a) is referred to in this Agreement as a " Shelf Registration ." Shareholders shall not deliver a Shelf Notice, and the Company shall not be required to effect a Shelf Registration, during the ninety (90) calendar day period following the effective date of a Registration Statement pursuant to any Demand Registration or any Piggyback Registration (provided that the number of Registrable Shares included in such Piggyback Registration was not less than fifty percent (50%) of the number of Registrable Shares requested by the Shareholders to be included therein in accordance with Section 3.2(a)) and shall not be required to effect more than three (3) Shelf Registrations. Subject to Section 3.5, the Company shall use its reasonable efforts to cause any Required Shelf Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, or to become automatically effective if such Required Shelf Registration Statement is an automatic shelf registration statement, and, so long as the Company remains eligible to register the resale of Registrable Shares on Form S-3, to keep such Required Shelf Registration Statement effective under the Securities Act until the earliest of the one hundred eightieth (180th) day following the initial effective date of such Required Shelf Registration Statement, such time as all Registrable Shares that could be sold thereunder have been sold or are no longer outstanding and the Registration Rights Termination Date (such period of effectiveness, the " Shelf Period ").
(b) If at any time that a Required Shelf Registration Statement covering Registrable Shares pursuant to this Section 3.3 is effective the Initiating Shelf Holders deliver a notice to the Company stating that the Initiating Shelf Holders intend to effect an offering (a " Shelf Take-Down "), provided that the aggregate value of the Registrable Shares to be included in such Marketed Underwritten Offering must be at least twenty-file million ($25,000,000), of all or a portion of their Registrable Shares included by them on such Required Shelf Registration Statement and stating the number of Registrable Shares to be included in such Shelf Take-Down, then the Company shall as promptly as reasonably practicable amend or supplement the applicable Required Shelf Registration Statement and take such other action as may be reasonably necessary to facilitate the sale of such Registrable Shares pursuant to such Shelf Take-Down.
(c) If the Initiating Shelf Holders elect by written request to the Company, a Shelf Take-Down shall be in the form of a Marketed Underwritten Offering (an " Underwritten Shelf Take-Down ") and the Company shall amend or supplement the Required Shelf Registration Statement for such purpose as soon as practicable. In connection with any such Underwritten Shelf Take-Down, the lead underwriter to administer the offering shall be chosen by the Initiating Shelf Holders, subject to the prior written consent, not to be unreasonably withheld, conditioned or delayed, of the Company. The number of Underwritten Shelf Take-Downs the Shareholder may make pursuant to Shelf Registrations is limited to two in any Shelf Period.
SECTION 3.4 Termination of Registration Obligation. Notwithstanding anything to the contrary herein, the obligation of the Company to register Registrable Shares pursuant to this Article III and maintain the effectiveness of any Required Shelf Registration Statement or any Demand Registration Statement filed pursuant to Section 3.1 shall terminate on the first date on which the Shareholders (i) in the aggregate, hold Shareholder Shares representing less than five percent (5%) of the outstanding Voting Securities (the " Registration Rights Termination Date ") and (ii) are each able to freely sell their remaining Shares under Rule 144 under the Securities Act without regard to the volume, manner of sale or filing requirements of such rule, and as to any Shareholder shall terminate
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on the earlier of the Registration Rights Termination Date and the first date on which such Shareholder no longer holds Registrable Shares.
SECTION 3.5 Suspension. If the filing, initial effectiveness or continued use of a Registration Statement with respect to a Demand Registration or a Shelf Registration would require the Company to make a public disclosure of material non-public information, which disclosure the Company determines in good faith (after consultation with external legal counsel) would materially impact the Company or would materially impede, delay or interfere with on the Company's ability to effect a reasonably imminent material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction, then the Company may, upon giving prompt written notice of such determination to the Shareholder, delay the filing or initial effectiveness of, or suspend the use of, as applicable, such Registration Statement or any Prospectus or Free Writing Prospectus; provided , however , that, unless otherwise approved in writing by the Shareholder, the Company shall not be permitted to do so for a period of time in excess of ninety (90) days in the case of any single delay or suspension, and the number of days in any 12-month period on which such a suspension is in effect shall not exceed one hundred twenty (120) (except that such number of days shall not exceed ninety (90) in the 12-month period commencing on the Closing Date (as defined in the Combination Agreement)). In the event that the Company exercises its rights under the preceding sentence, the Shareholder shall suspend, promptly upon receipt of the notice referred to above, the use of any Prospectus or Free Writing Prospectus relating to such Demand Registration or Shelf Registration in connection with any sale or offer to sell Registrable Shares. In the event of such a suspension for which notice is given by the Company after the effectiveness of the applicable Registration Statement, the period specified in clause (A) in Section 3.6(b) (or, in the case of a Required Shelf Registration Statement, the Shelf Period) shall be extended by the number of days of such suspension. The Shareholder shall keep confidential the receipt of any notice under this Section 3.5 and the contents thereof, except as required pursuant to applicable law, and, during any period of such delay or suspension, shall not offer or sell or otherwise transfer any Shareholder Shares or otherwise engage in trading of securities of the Company. Notwithstanding anything to the contrary, upon the commencement of any Scheduled Black-Out Period, the Shareholder shall immediately suspend the use of any Prospectus or Free Writing Prospectus in connection with any sale or offer to sell Registrable Shares until the termination of such Scheduled Black-Out Period.
SECTION 3.6 Registration Procedures. Subject to Section 3.1(d) and the Company's right to withdraw or terminate an applicable Piggyback Registration under Section 3.2(a), whenever one or more Shareholders shall have requested in accordance with Section 3.1 or Section 3.2, as applicable, that any Registrable Shares be registered pursuant to Section 3.1 or Section 3.2, as applicable, the Company shall:
(a) use reasonable efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares within the time periods therefor specified herein, reasonably cooperate with the Shareholders and each underwriter participating in the disposition of such Registrable Shares (such participating Shareholders, " Selling Holders ") and their respective counsel in connection with any required filings with FINRA and, if such Registration Statement is not automatically effective upon filing, use reasonable efforts to cause such Registration Statement to be declared effective as promptly as practicable after the filing thereof; provided , however , that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including free writing prospectuses under Rule 433 under the Securities Act, each, a " Free Writing Prospectus "), the Company shall furnish to each Selling Holder and each of the managing underwriter(s), if any, copies of the Registration Statement and all other documents proposed to be filed (including exhibits thereto), including, in the case of any Selling Holder, upon the reasonable request of such Selling Holder and to the extent reasonably practicable, all documents that would be incorporated by reference or deemed to be incorporated by reference therein (other
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than documents publicly available on the SEC's EDGAR system or any successor system), which Registration Statement and documents proposed to be filed will be subject to the reasonable review and comment of the Selling Holders and their counsel ( provided that any comments are given to the Company promptly upon receipt of such documents and in no event later than three (3) calendar days after such documents are deemed under Section 3.9 to have been given to the Selling Holders), at the Selling Holders' sole expense;
(b) prepare and file with the SEC such amendments and supplements to such Registration Statement, the Prospectus used in connection therewith (including Free Writing Prospectuses) and Exchange Act reports as may be necessary to keep such Registration Statement (other than a Required Shelf Registration Statement, the effectiveness of which shall be maintained for the Shelf Period) effective for a period of (A) not less than sixty (60) days, (B) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter(s), a Prospectus is required by law to be delivered in connection with sales of Registrable Shares by an underwriter or dealer or (C) such shorter period as will terminate when all of the Registrable Shares covered by such Registration Statement have been disposed of in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act);
(c) furnish to the Selling Holders and the managing underwriter(s), if any, such number of conformed copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary and final Prospectus, any Free Writing Prospectus, all exhibits and other documents filed therewith and such other documents as such Persons may reasonably request, including in order to facilitate the disposition of the Registrable Shares in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement; and the Company, subject to the penultimate paragraph of this Section 3.6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Shares covered by such Prospectus and any such amendment or supplement thereto;
(d) use its reasonable efforts to register or qualify such Registrable Shares under such other securities or "blue sky" laws of such jurisdictions as the Selling Holders reasonably request and do any and all other acts and things that may be necessary or reasonably advisable to enable the Selling Holders to consummate the disposition in such jurisdictions of the Registrable Shares in accordance with the intended method or methods of distribution thereof set forth in the applicable Registration Statement ( provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection; (ii) subject itself to taxation in any jurisdiction wherein it is not so subject; or (iii) take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject);
(e) use its reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be registered with or approved by such other governmental agencies, authorities and self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the Selling Holders or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares in the United States in accordance with the intended method or methods of distribution thereof set forth in such Registration Statement;
(f) promptly notify the Selling Holders and the managing underwriter(s), if any, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act of the occurrence of any event or existence of any fact as a result of which the Prospectus (including any
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information incorporated by reference therein) included in such Registration Statement, as then in effect, contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made, and, as promptly as practicable upon discovery, prepare and furnish to the Selling Holders a reasonable number of copies of a supplement or amendment to such Prospectus, or file any other required document, as may be necessary so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;
(g) promptly notify the Selling Holders and the managing underwriter(s) of any underwritten offering, if any, (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC for amendments or supplements to such Registration Statement or to such Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose; and (iv) of the suspension of the qualification of such securities for offering or sale in any jurisdiction, or the institution of any proceedings for any such purposes;
(h) enter into underwriting agreements with customary provisions as the Selling Holders (if such registration is a Demand Registration) or the managing underwriter(s), if any, reasonably request in order to facilitate the disposition of such Registrable Shares;
(i) make available for inspection by the Selling Holders and the Selling Holders' counsel, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Selling Holders or underwriter(s), all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by the Selling Holders or such underwriter(s), attorney, accountant or agent in connection with such Registration Statement; provided , however , that each Selling Holder shall, and shall use reasonable efforts to cause each such underwriter(s), accountant or other agent to (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company; and (ii) minimize the disruption to the Company's business in connection with the foregoing;
(j) make available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company's first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use reasonable efforts to obtain the withdrawal of such order as soon as reasonably practicable;
(l) subject to Section 3.7, cause its senior management to use reasonable efforts to support the marketing of the Registrable Shares covered by the Registration Statement pursuant to any Demand Registration or by a Required Shelf Registration Statement in connection with an underwritten offering thereunder (including participation in "road shows," to be scheduled in a
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collaborative manner so as not to interfere with the conduct of the business of the Company), taking into account the Company's business needs;
(m) if such Registrable Shares are being sold in an underwritten public offering, use its reasonable efforts to (i) furnish, on the date the underwriting agreement is signed and on the date such Registrable Shares are delivered to the underwriters for sale pursuant to such registration, a comfort letter in customary form, addressed to each of the managing underwriter(s), signed by the independent public accountants who have issued an audit report on the Company's financial statements included in the applicable Registration Statement and (ii) provide, on the date of the closing under the underwriting agreement, a legal opinion of the Company's outside counsel, addressed to each of the managing underwriter(s), in customary form and covering such matters of the type customarily covered by legal opinions of such nature and such other matters as may be reasonably requested by the managing underwriter(s).
Subject to the limitations on the Company's ability to delay the filing or initial effectiveness of, or suspend the use of, as applicable, a Registration Statement or a Prospectus or Free Writing Prospectus pursuant to Section 3.5, each Shareholder shall, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 3.6(f), promptly discontinue its disposition of Registrable Shares pursuant to any Registration Statement until such Shareholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.6(f). If any Shareholder is so directed by the Company, such Shareholder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies, in such Shareholder's possession of the Prospectus covering such Registrable Shares at the time of receipt of such notice. In the event that the Company shall give any such notice, the period mentioned in Section 3.6(b) (or, in the case of a Required Shelf Registration, the Shelf Period), as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when the Shareholders to which such notice was given shall have been given the copies of the supplemented or amended Prospectus contemplated by Section 3.6(f).
In the case of any underwritten offering of Registrable Shares registered under a Required Shelf Registration Statement or a Demand Registration Statement filed pursuant to Section 3.1(a), or in the case of a Piggyback Registration under Section 3.2 or a Shelf Registration, (i) all Registrable Shares or Similar Securities to be included in such offering or registration, as the case may be, shall be subject to the applicable underwriting agreement with customary terms (including customary provisions relating to indemnities and contribution), and neither any Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person agrees to sell such Person's securities on the basis provided therein; and (ii) neither any Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person completes and executes all questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements, custody agreements and other documents reasonably required to be executed in connection therewith, and provides such other information to the Company and the underwriter(s) as may be reasonably requested to offer or register such Person's Registrable Shares or Similar Securities, as the case may be; provided , however , that (A) a Shareholder shall not be required to make any representations or warranties other than those related to title and ownership of, and power and authority to transfer, the Registrable Shares of such Shareholder included therein and such Shareholder's intended method of distribution of such Registrable Shares and as to the accuracy and completeness of statements made in the applicable Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information prepared and furnished to the Company or the managing underwriter(s) by such Shareholder or its Representatives pertaining to such Shareholder and (B) the aggregate amount of liability of a Shareholder pursuant to any indemnification obligation thereunder shall not exceed the net proceeds received by such Shareholder from such offering. As a condition to including Registrable Shares in any Registration Statement filed in accordance with this Article III , the
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Company may require that it shall have received an undertaking reasonably satisfactory to the Company from any underwriter to indemnify and hold harmless the Company and its directors, officers and Affiliates to the extent customarily provided by underwriters in connection with similar securities and offerings.
After any Shareholder has been notified of its opportunity to include Registrable Shares in any Piggyback Registration or of a request, in connection with an offering other than under a Demand Registration, such Shareholder (i) shall treat the Offering Confidential Information as confidential information, (ii) shall not use any Offering Confidential Information for any purpose other than, in the case of a Piggyback Registration, to evaluate whether to include its Registrable Shares in such Piggyback Registration and (iii) shall not disclose any Offering Confidential Information to any Person other than, in the case of a Piggyback Registration, such of its Representatives as have a need to know such Offering Confidential Information in connection with such purpose, which Representatives such Shareholder shall cause to comply with the requirements of this paragraph; provided , however , that such Shareholder may disclose Offering Confidential Information if such disclosure is required by legal process, but such Shareholder shall cooperate with the Company to limit the extent of such disclosure through protective order or otherwise, and to seek confidential treatment of the Offering Confidential Information. Such Shareholder shall not offer or sell or otherwise transfer any Shareholder Shares or otherwise engage in trading of securities of the Company while in possession of Offering Confidential Information.
SECTION 3.7 Registration Expenses .
(a) Except as otherwise provided in this Agreement, all expenses incidental to the Company's performance of or compliance with this Article III (the " Registration Expenses "), including (i) all registration and filing fees (including (A) with respect to filings required to be made with the SEC, all applicable securities exchanges and/or FINRA and (B) compliance with securities or blue sky laws including any fees and disbursements of counsel for the underwriter(s) in connection with blue sky qualifications of the Registrable Shares pursuant to Section 3.6(d)); (ii) word processing, duplicating and printing expenses (including expenses of printing certificates for Registrable Shares in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses, if the printing of Prospectuses is requested by the managing underwriter(s), if any, or by any Shareholder participating in the applicable offering of Registrable Shares); (iii) messenger, telephone and delivery expenses; (iv) fees and disbursements of counsel for the Company; (v) fees and disbursements of all independent certified public accountants (including the fees and disbursements in connection with any "cold comfort" letters required by this Agreement) and other special experts, retained by the Company, shall be borne by the Company. The Company shall, in any event, pay its internal expenses, the expenses of any annual audit or quarterly review of the Company's financial statements by the Company's independent certified public accountants, the expenses of any liability insurance of the Company and the expenses and fees for listing the Registrable Shares to be registered on the applicable securities exchange. All underwriting discounts, selling commissions and transfer taxes and fees and disbursements of counsel and any other advisers or agents of any Shareholders (collectively, " Selling Expenses ") incurred in connection with the offering of any Registrable Shares shall be borne by the Shareholders participating in such offering. For the avoidance of doubt, the Company shall not bear any Selling Expenses in connection with its obligations under this Agreement. All expenses incurred in connection with any "road shows" undertaken pursuant to Section 3.6(l) shall be borne in equal proportion by the Shareholders and the Company.
(b) Notwithstanding anything to the contrary, the Company shall not be required to pay Registration Expenses for any Demand Registration begun pursuant to Section 3.1(a) the request for which has been subsequently withdrawn by the Initiating Holders unless the withdrawal is (i) requested under the circumstances described in Section 3.5; or (ii) based upon (A) any fact,
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circumstance, event, change, effect or occurrence that individually or in the aggregate with all other facts or circumstances, events, changes, effects or occurrences has a material adverse effect on the Company or (B) material adverse information concerning the Company that the Company had not publicly disclosed at least twenty-four (24) hours prior to such registration request and of which the Company had not otherwise notified, in writing, the Initiating Holder at the time of such request.
SECTION 3.8 Indemnification; Contribution .
(a) In the case of each offering of Registrable Shares made pursuant to this Article III , the Company shall, to the extent permitted by applicable law, indemnify and hold harmless each Selling Holder and its directors and officers and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such Selling Holder from and against any and all losses, claims, damages or liabilities, actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable and documented fees of counsel) (collectively, " Claims ") to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleading or (iii) any violation by the Company of the Securities Act, the Exchange Act or any state securities law in connection with such offering; provided , however , that the Company shall not be liable to any such indemnified party in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement contained in or omission or alleged omission from such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by such Selling Holder or any Representative of such Selling Holder expressly for use therein; provided , further , that that the foregoing indemnity agreement, with respect to any Prospectus or Free Writing Prospectus, shall not inure to the benefit of any such indemnified party if the Person asserting any Claims against such indemnified party purchased Shareholder Shares and (x) prior to the time of sale of the Shareholder Shares to such Person (the " Time of Sale "), the Company shall have notified such Selling Holder that the Prospectus or Free Writing Prospectus (as it existed prior to the Time of Sale) contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (y) such untrue statement or omission of a material fact was corrected in a Prospectus or Free Writing Prospectus, and such corrected Prospectus or Free Writing Prospectus was provided to such Selling Holder in advance of the Time of Sale, and (z) such corrected preliminary Prospectus or Free Writing Prospectus was not conveyed to such Person at or prior to the Time of Sale. In connection with any underwritten offering of Registrable Shares made pursuant to this Article III , the Company shall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter to substantially the same extent as provided above with respect to the indemnification of each Selling Holder by the Company.
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(b) In the case of each offering of Registrable Shares made pursuant to this Article III , each Selling Holder shall, to the extent permitted by applicable law, indemnify and hold harmless the Company and its directors and officers and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company from and against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleading, in each case only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Holder or any Representative of such Selling Holder expressly for use therein. The liability of any Selling Holder under the foregoing provisions of this Section 3.8(b) shall be limited to an amount equal to the dollar amount of the net proceeds received by such Selling Holder from Shareholder Shares sold by such Selling Holder pursuant to such Registration Statement or Prospectus. In connection with any underwritten offering of Registrable Shares made pursuant to this Article III , the Company shall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter and any other selling securityholder in such offering (and, in the case of each such other selling securityholder, such selling securityholder's officers and directors and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such selling securityholder), to substantially the same extent as provided above with respect to the indemnification of the Company by each Selling Holder.
(c) If, for any reason, the indemnification provisions contemplated by Section 3.8(a) or Section 3.8(b) are unavailable to or are insufficient to hold harmless an indemnified party in respect of any Claims referred to therein other than by the terms of this Section 3.8, then each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and the indemnified party, on the other hand, with respect to statements or omissions that that resulted in such Claims. The relative fault of such Indemnifying Party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such Indemnifying Party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 3.8(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 3.8(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentences of this Section 3.8(c). The amount paid or payable by an indemnified
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party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 3.9) any reasonable and documented legal or other fees or out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim. 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. Notwithstanding the foregoing, the Shareholder shall not be liable to contribute any amount in excess of the dollar amount of the net proceeds received by the Shareholder from Shareholder Shares sold by the Shareholder pursuant to such Registration Statement or Prospectus.
SECTION 3.9 Indemnification Procedures.
(a) If an indemnified party shall desire to assert any claim for indemnification provided for under Section 3.8 in respect of, arising out of or involving a Claim against the indemnified party, such indemnified party shall notify the Company or the applicable Selling Holder, as the case may be (the " Indemnifying Party "), in writing of such Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a " Claim Notice ") promptly after receipt by such indemnified party of written notice of the Claim; provided , however , that failure to provide a Claim Notice shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. The indemnified party shall deliver to the Indemnifying Party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Claim; provided , however , that failure to provide any such copies shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a Claim is made against an indemnified party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with separate counsel selected by the Indemnifying Party and reasonably satisfactory to the indemnified party. Should the Indemnifying Party so elect to assume the defense of a Claim, the Indemnifying Party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the indemnified party shall have the right to participate in defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the reasonable and documented fees and out-of-pocket expenses of counsel employed by the indemnified party for any period during which the Indemnifying Party has not assumed the defense thereof and as otherwise contemplated by the two immediately preceding sentences. If the Indemnifying Party chooses to defend any Claim, the indemnified party shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Claim, and the indemnified party shall use reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Claim without the Indemnifying Party's prior written consent. The Indemnifying Party may pay, settle or compromise a Claim without the written consent of the indemnified party, so long as
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such settlement (i) includes an unconditional release of the indemnified party from all liability in respect of such Claim, (ii) does not subject the indemnified party to any injunctive relief or other equitable remedy, and (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 3.10 Rule 144; Regulation S. The Company will use its reasonable efforts to timely file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, and to take such further action as the Shareholders may reasonably request, all to the extent required from time to time to enable the Shareholder to sell Registrable Shares without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 or Regulation S under the Securities Act or (ii) any similar rule or regulation hereafter adopted by the SEC.
SECTION 3.11 Holdback. The Company and each Shareholder agree, in connection with any underwritten offering of equity securities of the Company, upon the written request of the managing underwriter(s) of such offering, not to effect (other than pursuant to such underwritten offering) any public sale or distribution of Shareholder Shares or other equity securities of the Company, including any sale or distribution pursuant to Rule 144 or Rule 144A under the Securities Act, or make any short sale of, loan, grant any option for the purchase of, or otherwise transfer, any Registrable Shares or other equity securities of the Company, in each case during the Holdback Period (and, if (A) during the last seventeen (17) days of the Holdback Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (B) prior to the expiration of the Holdback Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Holdback Period, until the expiration of the eighteen (18) day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event), without the prior written consent of the managing underwriter(s). The foregoing sentence shall not apply to the Company in connection with (a) any sale, distribution or transfer of equity securities pursuant to a Special Registration, (b) the issuance by the Company of equity securities upon the exercise of an option or warrant or the conversion of a security, (c) the grant or award of any equity securities pursuant to employee benefit or compensation plans of the Company or (d) any equity securities issued or granted pursuant to any nonemployee director benefit or compensation plan or dividend reinvestment plan or share purchase plan.
SECTION 3.12 Existing Registration Statements. Notwithstanding anything to the contrary and subject to applicable law and regulation, the Company may satisfy any obligation hereunder to file or use reasonable efforts to file a Registration Statement or to have a Registration Statement become effective by designating, by notice to the applicable Initiating Holders, a Registration Statement that previously has been filed with the SEC or become effective, as the case may be, as the relevant Registration Statement for purposes of satisfying such obligation, and all references to any such obligation shall be construed accordingly; provided that such previously filed Registration Statement may be amended or, subject to applicable securities laws, supplemented to add the number of Registrable Shares, and, to the extent necessary, to identify selling securityholders thereunder. To the extent this Agreement refers to the filing or effectiveness of other Registration Statements by or at a specified time and the Company has, in lieu of then filing such Registration Statements or having such Registration Statements become effective, designated a previously filed or effective Registration Statement as the relevant Registration Statement for such purposes, in accordance with the preceding sentence, such references shall be construed to refer to such designated Registration Statement, as amended.
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SECTION 4.1 Shareholder Actions. Any determination, consent or approval of, or notice or request delivered by, or any other action of, any Shareholder shall be made by, and shall be valid and binding upon, all Shareholders, if made by one or more Shareholders Beneficially Owning a majority of the Shareholder Shares. The Company shall be entitled to demand from time to time and at any time, from the Shareholders, evidence reasonably satisfactory to the Company of such majority approval before proceeding with the Company's obligations under this Agreement.
SECTION 4.2 Joint and Several Liability. The Shareholders hereby agree that all representations, warranties, covenants, agreements, liability and obligations under this Agreement are joint and several to the Shareholders, and each Shareholder will be liable to the fullest extent provided for in this Agreement for any breach, default, liability or other obligation of each of the other Shareholders.
SECTION 4.3 Injunctive Relief. Each party hereto acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any of the provisions of this Agreement and that the remedy at law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that the other parties shall, in addition to any other rights or remedies which they may have, be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction to compel specific performance of, or restrain any party from violating, any of such provisions. In connection with any action or proceeding for injunctive relief, each party hereto hereby waives the claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted by law, to have each provision of this Agreement specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of injunctive relief against it enjoining or restraining any breach or threatened breach of such provisions of this Agreement.
SECTION 4.4 Assignments. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. None of the parties may directly or indirectly assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the other parties, other than a transfer by a Shareholder to a Permitted Transferee (as defined in the Shareholders' Agreement), which shall not require the prior written consent of the other parties. Any purported direct or indirect assignment in violation of this Section 4.4 shall be null and void ab initio.
SECTION 4.5 Amendments; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by (i) the Company, where enforcement of the amendment, modification, discharge or waiver is sought against the Company; or (ii) each Shareholder, where enforcement of the amendment, modification, discharge or waiver is sought against the Shareholders. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or the Shareholders of a breach of or a default under any of the provisions of this Agreement or the failure to exercise or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
SECTION 4.6 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and shall be deemed given to a party when
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(i) delivered to the appropriate address by hand or by nationally recognized overnight courier service; (ii) sent by facsimile with confirmation of transmission by the transmitting equipment; or (iii) sent by electronic mail (with return receipt received), in each case, to the following addresses, electronic mail addresses or facsimile numbers and marked to the attention of the person (by name or title) designated below, or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided below:
To the Company:
CF
Industries Holdings, Inc.
4 Parkway North, Suite 400
Deerfield, Illinois 60015
Telephone: (847) 405-2400
Facsimile: (847) 405-2711
Email: dbarnard@cfindustries.com
Attention: Douglas C. Barnard
With copies (which shall not constitute notice) to:
Skadden,
Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
Facsimile: (312) 407-0411
Email: brian.duwe@skadden.com
richard.witzel@skadden.com
Attention: Brian W. Duwe
Richard C. Witzel, Jr.
To any of the Shareholders:
Intertrust
Netherlands BV
Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands
Telephone: + 31 20 521 4777
Email: jurjen.hardeveld@intertrustgroup.com
Attention: Jurjen Hardeveld
With copies (which shall not constitute notice) to:
Withers LLP
16 Old Bailey,
London EC4M 7EG,
United Kingdom
Telephone: +44 (0)20 7597 6116
Email: Samantha.Morgan@withersworldwide.com
Attention: Samantha Morgan
and
Cleary
Gottlieb Steen and Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attn: Robert P. Davis
Attn: Paul M. Tiger
Facsimile: (212) 225-3999
Email: rdavis@cgsh.com
Email: ptiger@cgsh.com
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SECTION 4.7 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury. THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT MATTER OR FORMATION INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each party hereto irrevocably agrees that the state and federal courts located in the state of New York are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Agreement (" Proceedings ") shall therefore be brought exclusively in any state federal court located in the state of New York. Solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, each party irrevocably (i) waives any objection to Proceedings in such courts on the grounds of venue or on the grounds of forum non conveniens and (ii) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.6. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 4.8 Interpretation. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the articles of association of the Company, the terms of this Agreement shall prevail.
SECTION 4.9 Entire Agreement; No Other Representations. This Agreement constitutes the entire agreement, and supersedes all prior agreements, understandings representations and warranties both written and oral, between or among the parties with respect to the subject matter hereof.
SECTION 4.10 No Third-Party Beneficiaries. Except as explicitly provided for in Section 3.8 and Section 3.9, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
SECTION 4.11 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision; and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
SECTION 4.12 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
SECTION 4.13 Further Assurances. Upon the terms and subject to the conditions set forth in this Agreement, from and after the Effective Date, the parties hereto shall each use reasonable efforts to promptly (i) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable law or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any governmental or regulatory authority or third party any and all
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necessary clearances, waivers, consents, authorizations, approvals, permits or orders required to be obtained in connection with the performance of this Agreement and the consummation of the transactions contemplated hereby; and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
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AQUARIUS INVESTMENTS B.V. | ||||||
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[ Signature Page to Registration Rights Agreement ]
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SECOND AMENDMENT TO SHAREHOLDERS' AGREEMENT
THIS SECOND AMENDMENT, dated as of December 20, 2015 (this " Second Amendment "), to the Shareholders' Agreement, dated as of August 6, 2015 (as amended, the " Shareholders' Agreement "), by and among Darwin Holdings Limited, a private company limited by shares incorporated under the law of England (" Darwin Holdings "), OCI N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the law of The Netherlands (" Oxford "), CF B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the law of The Netherlands, with its corporate seat ( statutaire zetel ) in Amsterdam, The Netherlands (the " Company "), Capricorn Capital B.V., a private limited liability company incorporated under the laws of The Netherlands (registered number 56929870) whose registered office is at Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands (" Capricorn "), Leo Capital B.V., a private limited liability company incorporated under the laws of The Netherlands (registered number 56929315) whose registered office is at Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands (" Leo "), and Aquarius Investments B.V., a private limited liability company incorporated under the laws of The Netherlands (registered number 56929102) whose registered office is at Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands (" Aquarius " and, together with Leo and Capricorn, the " S Shareholders " and, together with Oxford, the " Shareholders "). Each of Darwin Holdings, Oxford, Capricorn, Leo and Aquarius are referred to herein as a " Party " and together the " Parties ". Capitalized terms used but not defined herein shall have the meanings given to such terms in the Shareholders' Agreement.
WHEREAS, the Parties entered into the Shareholders Agreement;
WHEREAS, the Parties entered into an Amendment to the Shareholders' Agreement, dated as of November 6, 2015 (the " Amendment "); and
WHEREAS, pursuant to Clause 9.12 of the Shareholders' Agreement, the Parties desire to amend and restate in its entirety the Shareholders' Agreement as set forth in Exhibit A to, among others, reflect the addition of the Company as a party to the Shareholders' Agreement and to remove Darwin Holdings as a party to the Shareholders' Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, and subject to the terms and conditions hereof, the parties hereto agree as follows:
Darwin Holdings, now have, have ever had or may hereafter have against the Releasees with respect to, relating to or arising from the Shareholders' Agreement.
[ Signature pages follow ]
2
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed as of the date first written above.
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[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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Name: G.A.R. Warris Title: Proxyholder |
[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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/s/ G.A.R. WARRIS
Name: G.A.R. Warris Title: Proxyholder |
[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
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/s/ G.A.R. WARRIS
Name: G.A.R. Warris Title: Proxyholder |
[ Signature Page to Amendment No. 2 to Shareholders' Agreement ]
DATED December 20, 2015
CF B.V.,
CAPRICORN CAPITAL B.V.,
LEO CAPITAL B.V.,
AQUARIUS INVESTMENTS B.V.
AND
OCI N.V.
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
1
This Agreement (this " Agreement ") is made on December 20, 2015
BY AND AMONG:
WHEREAS:
2
IT IS AGREED as follows:
1. Interpretation
In this Agreement:
1.1 Definitions
" Affiliate " means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under Common Control with, such Person, provided that neither the Shareholders, nor any of their Subsidiaries shall be deemed to be an Affiliate of the Company or vice versa, and provided, further, that solely for purposes of this Agreement, any settlor of a Family Trust shall be deemed to be an Affiliate of such Family Trust;
" Articles " mean the articles of association of the Company, as amended from time to time in accordance with the provisions of this Agreement;
" Associate " means, with respect to any Person, (i) any Person of which such Person is an officer, partner or equivalent or is, directly or indirectly, the beneficial owner of ten per cent. (10%) or more of any class of equity securities, (ii) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity, and (iii) any Family Member or spouse of such Person;
" Beneficially Own " means, with respect to any securities, having "beneficial ownership" of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (as in effect on the date of this Agreement and (ii) having the right to become the Beneficial Owner of such securities (whether such right is exercisable immediately or only after the passage of time or the occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise. The terms " Beneficial Owner ", " Beneficial Ownership " and " Beneficially Owned " shall have a correlative meaning;
" Board " means, as of any date, the board of directors of the Company on such date;
" Business Day " means a day which is not a Saturday or Sunday or a bank or public holiday in New York, New York or The Netherlands;
" Capricorn " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of Capricorn are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Closing " has the meaning given to such term in the Combination Agreement;
" Combination Agreement " has the meaning given to such term in the recitals to this Agreement;
" Competitor " means any Person set forth on Schedule A;
" Control " (including, with correlative meanings, " Controlled by " and " under Common Control with ") means the possession, direct or indirect, of the power to direct or cause the direction of management or policies of a Person, whether through ownership of securities, by contract or otherwise;
" Director " means any member of the Board;
" Directed Offering " means any so-called "registered direct" sale, block trade or other similar offering or Transfer made pursuant to an effective registration statement filed under the Securities Act, but in which the Voting Securities Transferred are not directly or indirectly widely distributed, and the Shareholder making such Transfer has knowledge of the identity of each transferee;
" Distribution " has the meaning given to such term in the recitals to this Agreement;
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" Effective Time " has the meaning given to such term in the Combination Agreement;
" Exchange Act " means the U.S. Securities Exchange Act of 1934, as amended;
" Family Member " with respect to any individual, means such individual's mother, father, sisters, brothers and children;
" Family Trust " means a trust for the benefit of one or more S Family Members;
" Firewater One Shareholder Agreement " has the meaning given to such term in the Combination Agreement;
" Group " has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder;
" Ordinary Shares " means the ordinary shares of the Company;
" Organisational Documents " means, with respect to any Person:
" Other Shares " means shares of any class of share capital of the Company (other than Ordinary Shares) that are entitled to vote on the appointment or removal of Directors;
" Ownership Limit " means, at any time of determination, twenty point five per cent. (20.5%) of the Voting Securities outstanding at such time, computed without regard to any Oxford Shares;
" Ownership Threshold " means, at any time of determination, five per cent. (5%) of the Voting Securities outstanding at such time;
" Oxford " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of Oxford are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Oxford Shares " means the Ordinary Shares acquired by Oxford (i) pursuant to the Combination Agreement and not included in the Distribution and (ii) pursuant to the Firewater One Shareholder Agreement, if any;
" Permitted Transferee " means the Company or any direct or indirect wholly-owned Subsidiary or Controlled Affiliate of any Shareholder, and in the case of Oxford, any shareholder of Oxford who receives Voting Securities pursuant to a pro rata distribution by Oxford after the Effective Time, and in the case of an S Shareholder, (i) an S Family Member, (ii) a Family Trust, or (iii) any direct or indirect wholly-owned Subsidiary or Controlled Affiliate of the foregoing;
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" Person " means any individual, private or public company, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organisation, governmental entity or other entity of any kind or nature;
"Qualified Candidate" means an individual who:
" Registration Rights Agreements " has the meaning set forth in the Combination Agreement;
" Representatives " means, with respect to any designated Person, such designated Person's Affiliates and the respective directors, officers, employees, accountants, counsel, consultants and other agents and advisers of such designated Person and its Affiliates;
" S Family Member " means any of Onsi Naguib Sawiris, his children and remoter issue or the spouses of any of them;
" SEC " means the United States Securities and Exchange Commission;
" Securities Act " means the United States Securities Act of 1933, as amended;
" Shareholder Affiliated Persons " has the meaning given to such term in Clause 5;
" Shareholder Shares " means Voting Securities Beneficially Owned by the S Shareholders or by Oxford, as the case may be;
" S Shareholders " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of any S Shareholders are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees;
" Shareholders " has the meaning given to such term in the preamble to this Agreement and, in the event that Shareholder Shares of any Shareholders are Transferred to any Permitted Transferees in accordance with Clause 4.1(c)(iv), shall include such Permitted Transferees, and in the event that Shareholder Shares of any Shareholders are Transferred in accordance with Clause 4.1(c)(v)(A), shall include such transferees;
" Standstill Period " has the meaning given to such term in Clause 3.1;
" Subsidiary " has the meaning set forth in the Combination Agreement;
" Transfer " means any voluntary or involuntary sale, transfer, assignment, pledge, hypothecation, charge, mortgage, license, gift, creation of a security interest in or lien on, grant of any right or option, creation of any convertible, exchangeable or derivative security with respect to, placement in trust (voting or otherwise), encumbrance or other disposition of any kind to any Person, including those by way of hedging or derivative transactions, in each case, directly or indirectly, including by means of a disposition of any equity interests in an S Shareholder or in a Person that directly or indirectly holds any equity interests in an S Shareholder, by operation of law or otherwise, provided , however , that a
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"Transfer" shall not include any direct or indirect transfer of the equity securities or Control of Oxford. Notwithstanding the foregoing, any direct or indirect mortgage, pledge, hypothecation, encumbrance or any other similar disposition of the nature of a security interest, lien or charge contemplated by the first sentence of this definition, by a Shareholder of any Ordinary Shares, or with respect to any such Ordinary Shares, shall not be deemed to constitute a "Transfer" subject to the restrictions on Transfer contained or referenced herein. The term " Transferred " shall have a correlative meaning; and
" Voting Securities " means the Ordinary Shares together with any Other Shares.
1.2 Subordinate legislation
References to a statutory provision include any subordinate legislation made from time to time under that provision.
1.3 Modification etc. of statutes
References to a statute or statutory provision include that statute or provision as from time to time modified or re-enacted or consolidated.
1.4 Clauses, Schedules etc.
References to this Agreement include the Schedules to it and this Agreement as from time to time amended and references to Clauses and Schedules are to Clauses of and Schedules to this Agreement, unless the context otherwise require.
1.5 Headings
Headings shall be ignored in construing this Agreement.
1.6 Parties
Any reference in this Agreement to a " party " or " parties " shall be a reference to a party or parties to this Agreement.
1.7 Effectiveness of this Agreement
This Agreement, other than this Clause 1, Clause 2 and Clauses 7 to 9 (which will come into force immediately), will take effect at and as of the Effective Time. Notwithstanding anything to the contrary herein, in the event the Combination Agreement is terminated in accordance with its terms prior to the Effective Time, this Agreement shall terminate immediately and be null and void.
1.8 General interpretation
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1.9 Actions at the Effective Time
Upon completion of the Distribution, the S Shareholders shall update Schedule B to reflect all Voting Securities Beneficially Owned by the S Shareholders at such time.
2. Warranties
2.1 Warranties of the Company
The Company warrants to the Shareholders as of the date hereof that:
except, in the case of sub-clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement.
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2.2 Warranties of the Shareholders
Each Shareholder warrants, severally, and not jointly, to the Company as of the date hereof that:
except, in the case of sub-clauses (ii) and (iii) above, for any breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in the aggregate, reasonably be expected to materially impair its ability to perform its obligations under this Agreement;
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3. Standstill; share ownership related information
3.1 Standstill restrictions
From and after the Effective Time until the one (1) year anniversary of the date on which the S Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (the " Standstill Period "), each Shareholder agrees that, without the prior written consent of the Board, such Shareholder shall not, and shall cause each of its and their Affiliates and, shall use reasonable endeavours to cause, its and their Representatives acting on their behalf not to, directly or indirectly, alone or acting together with any other Person, except as otherwise (A) expressly set forth in this Clause 3.1 or (B) provided in the Combination Agreement and/or the Firewater One Shareholder Agreement:
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"solicitation" of "proxies" to vote or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date of this Agreement, whether or not such Regulation is applicable to the Company) with respect to any Voting Securities;
3.3 Share ownership related information
For so long as this Agreement is in effect, each Shareholder shall, upon request in writing by the Company, provide to the Company as soon as reasonably practicable and in any event within ten (10) Business Days, any information related to such Shareholder's ownership or holding of Shareholder Shares, including any agreements or arrangements relating to such ownership or holding.
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4. Transfer restrictions
4.1 Transfer restrictions
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5. Freedom to pursue opportunities
Notwithstanding anything in this Agreement to the contrary, the parties expressly acknowledge and agree that: (a) each Shareholder and its Affiliates (collectively, the " Shareholder Affiliated Persons ") has the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly engage in the same or similar business activities or lines of business as the Company or any of its Subsidiaries, including those deemed to be competing with the Company or any of its Subsidiaries, and (b) in the event that a Shareholder Affiliated Person acquires knowledge of a potential transaction or matter that may be a corporate opportunity for each of the Company and such Shareholder Affiliated Person, shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or any of its Subsidiaries, as the case may be, and shall not be liable to the Company or its Affiliates or shareholders for breach of any duty (contractual or otherwise) by reason of the fact that such Shareholder Affiliated Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company.
6. Termination
This Agreement shall terminate with immediate effect upon the earlier of (a) the date that is one (1) year after the first date on which the S Shareholders, in the aggregate, shall cease to Beneficially Own Voting Securities representing at least the Ownership Threshold; and (b) the date not less than the date five (5) years after the date hereof that the Company elects to terminate this Agreement by giving written notice to the Shareholders; provided that this Clause 6 and Clauses 7 and 8 shall remain in full force and effect following such termination.
7. Notices
7.1 Addresses
Any notice or other communication to be given under this Agreement shall be in writing, shall be deemed to have been duly served on, given to or made in relation to a party if it is left at the authorised address of that party, posted by first class mail addressed to that party at such address, or sent by facsimile transmission to a machine situated at such address and shall if:
provided that where, in the case of delivery by hand or facsimile transmission, delivery or transmission occurs after 6.00 p.m. on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9.00 a.m. on the next following Business Day.
For the purposes of this Clause 7 the authorised address of each party shall be the address set out below or such other address (and details) as that party may notify to the others in writing from time to time in accordance with the requirements of this Clause 7:
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To
the Company:
CF
B.V.
c/o
CF Industries Holdings, Inc.
4 Parkway North, Suite 400
Deerfield, IL 60015-2590
Telephone: (847) 405-2400
Facsimile: (847) 405-2711
Email: Dbarnard@cfindustries.com
Attention: Douglas C. Barnard
With copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
Facsimile: (312) 407-0411
Email: brian.duwe@skadden.com, richard.witzel@skadden.com
Attention: Brian W. Duwe, Richard C. Witzel, Jr.
To any of the Shareholders:
Intertrust Netherlands BV
Prins Bernhardplein 200
1097 JB Amsterdam
The Netherlands
Telephone: + 31 20 521 4777
Email: jurjen.hardeveld@intertrustgroup.com
Attention: Jurjen Hardeveld
With copies (which shall not constitute notice) to:
Withers LLP
16 Old Bailey
London EC4M 7EG
United Kingdom
Telephone: +44 (0)20 7597 6116
Email: Samantha.Morgan@withersworldwide.com
Attention: Samantha Morgan
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
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Facsimile:
(212) 225-3999
Email: rdavis@cgsh.com, ptiger@cgsh.com
Attention: Robert P. Davis, Paul M. Tiger
To Oxford:
OCI N.V.
Honthorststraat 19
1071 DC Amsterdam
The Netherlands
Facsimile: +44 (0) 20 7439 4802
Email: Erika.Wakid@oci.nl
Attention: Erika Wakid
With copies (which shall not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
Facsimile: (212) 225-3999
Email: rdavis@cgsh.com, ptiger@cgsh.com
Attention: Robert P. Davis, Paul M. Tiger
8. General
8.1 Whole agreement
This Agreement contains the whole agreement between the parties hereto relating to the subject matter hereof at the date hereof to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with herein.
8.2 No inducement
Each party to this Agreement acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly provided for in this Agreement.
8.3 Legal advice
Each party to this Agreement confirms it has received independent legal advice relating to all the matters provided for in this Agreement, including the provisions of this Clause 8.3, and agrees, having considered the terms of this Clause 8.3, and this Agreement as a whole, that the provisions of this Clause 8.3, are fair and reasonable.
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8.4 Survival of rights, duties and obligations
Termination of this Agreement for any cause shall not release a party from any liability which at the time of termination has already accrued to another party or which thereafter may accrue in respect of any act or omission prior to such termination.
8.5 Conflict with the Articles
To the extent permitted by law, in the event of any ambiguity or discrepancy between the provisions of this Agreement and the Articles, it is intended that the provisions of this Agreement shall prevail and accordingly the Shareholders shall exercise all voting and other rights and powers available to them so as to give effect to the provisions of this Agreement and shall further if necessary procure any required amendment to the Articles.
8.6 Several and not joint liability of Shareholders
Each party hereby agrees that the representations, warranties, covenants and agreements of the Shareholders under this Agreement are being made severally, and not jointly, by the Shareholders, and no Shareholder will be liable for any breach, default, liability or other obligation of any of the other Shareholders.
8.7 No partnership
Nothing in this Agreement shall be deemed to constitute a partnership between the parties nor constitute any party the agent of any other party for any purpose except as expressly provided in this Agreement.
8.8 Shareholder actions
Any determination, consent or approval of, or notice or request delivered by, or any other action of, any S Shareholder shall be made by, and shall be valid and binding upon, all S Shareholders, if made by one or more S Shareholders Beneficially Owning a majority of the aggregate amount of the Shareholder Shares Beneficially Owned by the S Shareholders. The Company shall be entitled to demand from time to time and at any time, from the S Shareholders, evidence reasonably satisfactory to the Company of such majority approval before proceeding with the Company's obligations under this Agreement.
8.9 Amendments and waiver
No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Company, where enforcement of the amendment, modification, discharge or waiver is sought against the Company; or (ii) each Shareholder, where enforcement of the amendment, modification, discharge or waiver is sought against the Shareholders. Any waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or the Shareholders of a breach of or a default under any of the provisions of this Agreement or the failure to exercise or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
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8.10 Assignment
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as contemplated by Clause 4.1(c)(iv), none of the parties may directly or indirectly assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the other parties. Any purported direct or indirect assignment in violation of this Clause 8.10 shall be null and void ab initio .
8.11 Further assurance
At any time after the date of this Agreement the parties shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at the cost of the relevant party execute such documents and do such acts and things as that party may reasonably require for the purpose of giving to that party the full benefit of all the provisions of this Agreement.
8.12 Invalidity
If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected.
8.13 Counterparts
This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.
8.14 Costs
Each party shall bear all costs incurred by it in connection with the preparation, negotiation and entry into this Agreement and the documents to be entered into pursuant to it.
9. Governing law and submission to jurisdiction
9.1 Governing law
This agreement and any non-contractual obligation arising out of or in connection with it are governed exclusively by Dutch law, without regard to the conflict of laws thereof.
9.2 Jurisdiction
All disputes arising out of or in connection with this agreement, including disputes concerning its existence, its validity and any non-contractual obligation, will be resolved by the courts in Amsterdam, the Netherlands.
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In witness whereof this Agreement has been duly executed.
Signed for and on behalf of CF B.V. by:
/s/ DOUGLAS C. BARNARD
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Name | Douglas C. Barnard | |||
Title | Managing Director |
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Signed for and on behalf of OCI N.V. by:
/s/ SALMAN BUTT
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Name | Salman Butt | |||
Title | Chief Financial Officer |
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Signed for and on behalf of Leo Capital B.V. by:
/s/ G.A.R. WARRIS
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Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Leo Capital B.V. by:
/s/ P. OOSTHOEK
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Name | P. Oosthoek | |||
Title | Proxyholder |
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Signed for and on behalf of Capricorn Capital B.V. by:
/s/ G.A.R. WARRIS
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Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Capricorn Capital B.V. by:
/s/ P. OOSTHOEK
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Name | P. Oosthoek | |||
Title | Proxyholder |
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Signed for and on behalf of Aquarius Investments B.V. by:
/s/ G.A.R. WARRIS
|
||||
Name | G.A.R. Warris | |||
Title | Proxyholder |
Signed for and on behalf of Aquarius Investments B.V. by:
/s/ P. OOSTHOEK
|
||||
Name | P. Oosthoek | |||
Title | Proxyholder |
22
The
Mosaic Company
OJSC "Phosagro"
BASF SE
LyondellBasell Industries N.V.
Honeywell International Inc.
Fertilizantes Heringer S.A.
Grupo Fertipar LTDA
PJSC Uralkali
Glencore plc
Archer-Daniels-Midland Company
HELM AG
Ameropa AG
Keytrade AG
Marubeni Corporation
Saudi Arabian Fertilizer Company / Saudi Basic Industries Corporation
Yara International ASA
Potash Corporation of Saskatchewan Inc.
Qatar Fertiliser Company S.A.Q
PT Pupuk Indonesia (Persero)
Koch Industries, Inc.
OCI N.V.
Agrium Inc.
PETRONAS Chemicals Group Berhard
PetroChina Company Limited
Trammo Inc.
TogliattiAzot Corporation
Borealis AG
Sinofert Holdings Limited
Group DF Limited
EuroChem Group AG
China BlueChemical Ltd.
JSC Acron
Hubei Yihua Fertilizer Co., Ltd.
Indian Farmers Fertiliser Cooperative Limited
Methanol Holdings (Trinidad) Limited
23
S Shareholder Oxford Shares: | ||
Capricorn Capital B.V. | 60,672,376 | |
Leo Capital B.V. | 36,491,859 | |
Aquarius Investments B.V. | 11,522,425 | |
Oxford Shares held by Affiliates of the S Shareholders: |
||
Onsi Sawiris | 51 | |
Nassef Sawiris | 68,000 | |
NNS Holding | 1,105,723 | |
OS Holding | 25,000 | |
OCI N.V. 3.875 per cent. Convertible Bonds due 2018: |
||
NNS Holding | €53,300,000 |
24