FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
This REGISTRATION RIGHTS AGREEMENT is dated as of , 2010 and is by and
between RIDGEBURY TANKERS LTD, a Xxxxxxxx Islands corporation (the “Company”), and XXXXXX
X. XXXXX and XXXXX X. XXXXXXX (each a “Stockholder” and together the “Stockholders”).
In consideration of the mutual covenants and agreements herein contained and other good and
valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:
| 1. | Certain Definitions. |
(a) In addition to the terms defined elsewhere in this Agreement, the following terms shall
have the following meanings:
(b) “Affiliate” of any Person means any other Person which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
such Person.
(c) “Agreement” means this Registration Rights Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at the time such reference
becomes operative.
(d) “Common Stock” means common shares, par value $0.01 per share, of the Company.
(e) “Company” has the meaning set forth in the introductory paragraph.
(f) “Control,” including the terms “controlling,” “controlled by” and “under common
control with,” means the possession, directly or indirectly, of the power 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 20% 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. 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 provision,
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.
(g) “Demand Registration” has the meaning set forth in Section 2(a) hereof.
(h) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(i) “Governmental Entity” means any national, federal, state, municipal, local,
territorial, foreign or other government or any department, commission, board, bureau, agency,
regulatory authority or instrumentality thereof, or any court,
judicial, administrative or
arbitral body or public or private tribunal.
(j) “Holder” means any Stockholder who owns Registrable Shares. For purposes of this
Agreement, the Company may deem and treat the registered holder of Registrable Shares as the Holder
and absolute owner thereof, and the Company shall not be affected by any notice to the contrary.
(k) “Initiating
Holders” has the meaning set forth in Section 2(a) hereof.
(l) “Lock-Up
Agreements” means the lock-up agreements dated as of September 2010 entered into between Xxxxxxxxx &
Company, UBS Securities LLC and Xxxxx Fargo Securities, LLC
on behalf of the underwriters, and each of the Stockholders.
(l) “Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, incorporated or unincorporated organization, association,
corporation, institution, public benefit corporation, Governmental Entity or any other entity.
(m) “Piggyback
Registration” has the meaning set forth in Section 4(a) hereof.
(n) “Prospectus” means the prospectus or prospectuses included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Shares covered by such Registration Statement and by
all other amendments and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
(o) “Qualifying IPO” means the sale in an underwritten initial public offering
registered under the Securities Act of shares of Common Stock of the Company.
(p) “Registrable Shares” means those shares
of Common Stock held by
the Stockholders prior to the pricing of the Company’s initial public offering.
(q) “Registration Expenses” has the meaning set forth in Section 7(a) hereof.
(r) “Registration Statement” means any registration statement of the Company which
covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such Registration
Statement.
(s) “SEC” means the Securities and Exchange Commission.
(t) “Securities Act” means the Securities Act of 1933, as amended.
(u) “Senior Management” means the Chief Executive Officer and/or Chief Financial
Officer of the Company.
(v) “Shelf Registration” has the meaning set forth in Section 3(a) hereof.
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(w) “Stockholders” has the meaning set forth in the introductory paragraph.
(x) “Suspension Notice” has the meaning set forth in Section 6(e) hereof.
(y) “underwritten registration” or “underwritten offering” means a
registration in which securities of the Company are sold to underwriters for reoffering to the
public.
(z) “Withdrawn Demand Registration” has the meaning set forth in Section 2(f)
hereof.
| 2. | Demand Registrations. |
(a) Right to Request Registration. At any time commencing upon the expiration of the
transfer restrictions set forth in the Lock-Up Agreements entered into in connection with a
Qualifying IPO, any Holder or Holders of a number Registrable Shares equal to at least 50% of the
number of Registrable Shares as of , 2010 (“Initiating Holders”)
may request registration under the Securities Act of all or part of the Registrable Shares
(“Demand Registration”); provided, however, that each Demand Registration
be for Registrable Shares.
Within ten (10) days after receipt of any such request for Demand Registration, the Company
shall give written notice of such request to all other Holders of Registrable Shares and shall,
subject to the provisions of Section 2(d) hereof, include in such registration all such
Registrable Shares with respect to which the Company has received written requests for inclusion
therein within fifteen (15) days after the issuance of the Company’s notice.
(b) Number of Demand Registrations. Subject to the provisions of Section
2(a), the Holders of Registrable Shares shall collectively be entitled to request an aggregate
total of three (3) Demand Registrations under this Agreement. A registration shall not count as
one of the permitted Demand Registrations (i) until it has become effective, (ii) if the Initiating
Holders requesting such registration are not able to have registered and sold at least 50% of the
Registrable Shares requested by such Initiating Holders to be included in such registration or
(iii) in the case of a Demand Registration that would be the last permitted Demand Registration
requested hereunder, if the Initiating Holders requesting such registration are not able to have
registered and sold all of the Registrable Shares requested to be included by such Initiating
Holders in such registration.
(c) Priority on Demand Registrations. The Company shall not include in any Demand
Registration any securities which are not Registrable Shares without the written consent of the
Holders of a majority of the Registrable Shares to be included in such registration, or, if such
Demand Registration is an underwritten offering, without the written consent of the managing
underwriters. If the managing underwriters of the requested Demand Registration advise the Company
in writing that in their opinion the number of shares of Registrable Shares proposed to be included
in any such registration exceeds the number of securities which can be sold in such offering
without having an adverse affect on such offering, including the price at which such Registrable
Shares can be sold, the Company shall include in such registration only the number of shares of
Registrable Shares which in the opinion of such managing underwriters can be sold without having
the adverse effect referred to above. If the number of shares which can be sold without having the
adverse effect referred to above is less than the number of shares
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of Registrable Shares proposed to be registered, the amount of Registrable Shares to be so
sold shall be allocated pro rata among the Holders of Registrable Shares desiring to participate in
such registration on the basis of the amount of such Registrable Shares initially proposed to be
registered by such Holders. If the number of shares which can be sold exceeds the number of shares
of Registrable Shares proposed to be sold, such excess shall be allocated pro rata among the other
holders of securities, if any, desiring to participate in such registration based on the amount of
such securities initially requested to be registered by such holders or as such holders may
otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be obligated to
effect any Demand Registration within three (3) months after the termination of an offering under a
previous Demand Registration or a previous registration under which the Initiating Holder had
piggyback rights pursuant to Section 4 hereof where the Initiating Holder was permitted to
register and sell 50% or more of the Registrable Shares requested to be included therein. The
Company may postpone for up to ninety (90) days the filing or the effectiveness of a Registration
Statement for a Demand Registration if, based on the good faith judgment of the Company’s board of
directors, such filing or effectiveness would be materially detrimental to the Company and its
stock holders, such postponement or withdrawal is necessary in order to avoid premature disclosure
of a matter the board has determined would not be in the best interest of the Company to be
disclosed at such time; and provided, further, that in the event described above,
the Initiating Holders requesting such Demand Registration shall be entitled to withdraw such
request prior to its effective date and, if such request is withdrawn, such Demand Registration
shall not count as one of the permitted Demand Registrations. The Company shall provide written
notice to the Initiating Holders requesting such Demand Registration of (i) any postponement or
withdrawal of the filing or effectiveness of a Registration Statement pursuant to this Section
2(d), (ii) the Company’s decision to file or seek effectiveness of such Registration Statement
following such withdrawal or postponement and (iii) the effectiveness of such Registration
Statement. The Company may defer the filing of a particular Registration Statement pursuant to
this Section 2(d) only once during any twelve (12) month period.
(e) Selection of Underwriters. If any of the Registrable Shares covered by a Demand
Registration are to be sold in an underwritten offering, the Initiating Holders shall have the
right to select the managing underwriter(s) to administer the offering subject to the approval of
the Company, which will not be unreasonably withheld.
(f) Effective Period of Demand Registrations. After any Demand Registration filed
pursuant to this Agreement has become effective, the Company shall use its reasonable best efforts
to keep such Demand Registration effective for a period equal to 180 days from the date on which
the SEC declares such Demand Registration effective (or if such Demand Registration is not
effective during any period within such 180 days, such 180-day period shall be extended by the
number of days during such period when such Demand Registration is not effective), or such shorter
period which shall terminate when all of the Registrable Shares covered by such Demand Registration
have been sold pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to Section 2(d) (a “Withdrawn Demand Registration”), the
Initiating Holders of the Registrable Shares remaining unsold and originally covered by such
Withdrawn Demand Registration shall be entitled to a replacement Demand Registration which (subject
to the provisions of this Section 2) the Company shall use its
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reasonable best efforts to keep effective for a period commencing on the effective date of
such Demand Registration and ending on the earlier to occur of the date (i) which is 180 days from
the effective date of such Demand Registration and (ii) on which all of the Registrable Shares
covered by such Demand Registration have been sold. Such additional Demand Registration otherwise
shall be subject to all of the provisions of this Agreement.
| 3. | Shelf Registration. |
(a) At such time as the Company is able to use Form S-3 under the Securities Act (or any
successor form) for sales of Registrable Shares by a Holder, at the request of one or more Holders
of a number Registered Shares equal to at least 50% of the number of Registrable Shares as of
, 2010, the Company shall use its reasonable best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of any number of Registrable
Shares for which it receives requests in accordance with Section 2(a) (the “Shelf
Registration”). The Company shall use its reasonable best efforts to cause such Registration
Statement to become effective as promptly as practicable and maintain the effectiveness of such
Registration Statement (subject to the terms and conditions herein) for a period ending on the
earlier of (i) two (2) years following the date on which such Registration Statement first becomes
effective (but one (1) year if the Company is not able to use Form S-3 under the Securities Act (or
any successor form)), and (ii) the date on which all Registrable Shares covered by such
Registration Statement have been sold and the distribution contemplated thereby has been completed
or have become freely tradeable pursuant to Rule 144 without regard to volume restrictions or
limitations on volume or manner of sale.
(b) The Shelf Registration Statement pursuant to this Section 3 shall, to the extent
possible under applicable law, be effected to permit sales on a continuous basis pursuant to Rule
415 under the Securities Act.
(c) In the event of a request for a Shelf Registration pursuant to Section 3(a), the
Company shall give written notice of the proposed filing of the Registration Statement in
connection therewith to all Holders of Registrable Shares offering to each such Holder the
opportunity to have any or all of the Registrable Shares held by such Holder included in such
registration statement. Each Holder of Registrable Shares desiring to have its Registrable Shares
registered under this Section 3(c) shall so advise the Company in writing within fifteen
(15) days after the date of such notice from the Company (which request shall set forth the amount
of Registrable Shares for which registration is requested), and the Company shall include in such
Registration Statement all such Registrable Shares so requested to be included therein.
(d) The number, percentage, fraction or kind of shares referred to in this Section 3
shall be appropriately adjusted for any stock dividend, stock split, reverse stock split,
combination, recapitalization, reclassification, merger or consolidation, exchange or distribution
in respect of the shares of Common Stock.
(e) The Company, and any other holder of the Company’s securities who has registration rights,
may include its securities in any Shelf Registration effected pursuant to this Section 3.
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(f) So long as a Shelf Registration is in effect with respect to any Registrable Shares, a
Holder may not request a Demand Registration or Piggyback Registration with respect to those
shares.
| 4. | Piggyback Registrations. |
(a) Right to Piggyback. If at any time commencing 180 days following the closing of a
Qualifying IPO the Company proposes to register any of its common equity securities under the
Securities Act (other than a registration statement on Form S-8 or on Form S-4 or any similar
successor forms thereto, or a registration statement covering an offering of convertible
securities), whether for its own account or for the account of one or more stockholders of the
Company, and the registration form to be used may be used for any registration of Registrable
Shares (a “Piggyback Registration”), the Company shall give prompt written notice (in any
event within ten (10) days after its receipt of notice of any exercise of other demand registration
rights) to each Holder of Registrable Shares of its intention to effect such a registration and,
subject to Sections 4(b) and 4(c), shall include in such registration all
Registrable Shares with respect to which the Company has received written requests for inclusion
therein within five (5) days after issuance of the Company’s notice. The Company may postpone or
withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole
discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without having an adverse effect
on such offering, the Company shall include in such registration (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Shares requested to be included therein by
the Holders, pro rata among the Holders of such Registrable Shares on the basis of the number of
shares requested to be registered by such Holders, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company’s securities other than
Registrable Shares, and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration exceeds the number
which can be sold in such offering without having an adverse effect on such offering, the Company
shall include in such registration (i) first the securities requested to be included therein by the
holders requesting such registration and the Registrable Shares requested to be included in such
registration, pro rata among the holders of such securities on the basis of the number of shares
requested to be registered by such holders, and (ii) second, other securities requested to be
included in such registration pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders or as such holders may otherwise agree.
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(d) Selection of Underwriters. If any Piggyback Registration is an underwritten
primary or secondary offering, the Company shall have the right to select the managing underwriter
or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a Registration Statement
with respect to Registrable Shares, and if such previous registration has not been withdrawn or
abandoned, the Company shall not be obligated to cause to become effective any other registration
of any of its securities under the Securities Act, whether on its own behalf or at the request of
any holder or holders of such securities, until a period of at least ninety (90) days has elapsed
from the termination of the offering under the previous registration.
| 5. | Holdback Agreements. The Company agrees not to effect any sale or distribution of any of its common equity securities during the ten (10) days prior to and during the 180 days beginning on the pricing date of any underwritten offering pursuant to any Demand Registration or any Piggyback Registration (except as part of such underwritten registration or pursuant to registrations on Form S-8 or S-4 or any successor forms thereto) unless the underwriters managing the offering otherwise agree to a shorter period. |
| 6. | Registration Procedures. |
(a) Whenever the Holders request that any Registrable Shares be registered pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the registration and the
sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and
pursuant thereto the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such
Registrable Shares and use its reasonable best efforts to cause such Registration Statement
to become effective as soon as practicable thereafter and before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, furnish to the Holders of
Registrable Shares covered by such Registration Statement and the underwriter or
underwriters, if any, copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders, the exhibits
incorporated by reference, and such Holders shall have the opportunity to object to any
information pertaining to such Holders that is contained therein and the Company will make
the corrections reasonably requested by such Holders with respect to such information prior
to filing any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for a period of not less than 180 days, in the case of a
Demand Registration or such shorter period as is necessary to complete the distribution of
the securities covered by such Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with
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the intended methods of disposition by the sellers thereof set forth in such
Registration Statement;
(iii) furnish to each seller of Registrable Shares such number of copies of such
Registration Statement, each amendment and supplement thereto, the Prospectus included in
such Registration Statement (including each preliminary Prospectus) and such other documents
as such seller may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such seller;
(iv) use its reasonable best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as any seller reasonably
requests and do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such jurisdictions of the
Registrable Shares owned by such seller (provided, however, that the Company
will not be required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph 6(a)(iv), (B) subject
itself to taxation in any such jurisdiction, or (C) consent to general service of process in
any such jurisdiction);
(v) notify each seller of such Registrable Shares, at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act, of the occurrence of
any event as a result of which the Prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the
purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the statements
therein not misleading;
(vi) in the case of an underwritten offering, enter into such customary agreements
(including underwriting agreements in customary form with customary indemnification
provisions) and take all such other actions as the Holders of a majority of the Registrable
Shares being sold or the underwriters reasonably request in order to expedite or facilitate
the disposition of such Registrable Shares (including, without limitation, making members of
Senior Management of the Company available to participate in, and cause them to cooperate
with the underwriters in connection with, “road-show” and other customary marketing
activities (including one-on-one meetings with prospective purchasers of the Registrable
Shares)) and cause to be delivered to the underwriters and the sellers, if any, opinions of
counsel to the Company in customary form, covering such matters as are customarily covered
by opinions for an underwritten public offering as the underwriters may request and
addressed to the underwriters and the sellers;
(vii) make available, for inspection by any seller of Registrable Shares, any
underwriter participating in any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
8
Company, and cause the Company’s officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such Registration Statement, subject to any
confidentiality restrictions which the Company reasonably deems necessary;
(viii) use its reasonable best efforts to cause all such Registrable Shares to be
listed on the principal securities exchange on which securities of the same class issued by
the Company are then listed;
(ix) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an underwritten offering,
at the time of delivery of any Registrable Shares sold pursuant thereto), letters from the
Company’s independent certified public accountants addressed to each selling Holder (unless
such selling Holder does not provide to such accountants the appropriate representation
letter required by rules governing the accounting profession) and each underwriter, if any,
stating that such accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and
otherwise in customary form and covering such financial and accounting matters as are
customarily covered by letters of the independent certified public accountants delivered in
connection with primary or secondary underwritten public offerings, as the case may be; and
(x) promptly notify each seller of Registrable Shares and the underwriter or
underwriters, if any:
(A) when the Registration Statement, any pre-effective amendment, the
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(B) of any comments of the SEC or of any written request by the SEC
for amendments or supplements to the Registration Statement or Prospectus;
(C) of the notification to the Company by the SEC of its initiation
of any proceeding with respect to the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement; and
(D) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Shares for sale under the
applicable securities or blue sky laws of any jurisdiction.
(b) The Company shall ensure that no Registration Statement (including any amendments or
supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or necessary to make
the statements therein not misleading (except, with respect to any Holder, for an untrue statement
or alleged untrue statement of a material fact or omission or alleged
9
omission of a material fact made in reliance on and in conformity with written information
furnished to the Company by or on behalf of such Holder specifically for use therein).
(c) The Company shall make available to each Holder and each underwriter whose Registrable
Shares are included in a Registration Statement (i) promptly after the same is prepared and
publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration
Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment
or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff
of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction,
including any domestic or foreign securities exchange), and each item of correspondence from the
SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body
having jurisdiction, including any domestic or foreign securities exchange), in each case relating
to such Registration Statement (other than any portion thereof which contains information for which
the Company has sought confidential treatment), and (ii) such number of copies of a Prospectus,
including a preliminary Prospectus, and all amendments and supplements thereto and such other
documents as such Holder or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such Holder. The Company will promptly notify each
Holder and each underwriter by facsimile of the effectiveness of each Registration Statement or any
post-effective amendment. The Company will promptly respond to any and all comments received from
the SEC, with a view towards causing each Registration Statement or any amendment thereto to be
declared effective by the SEC as soon as practicable and shall file an acceleration request as soon
as practicable following the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that any such Registration Statement or any amendment thereto
will not be subject to review.
(d) The Company may require each seller of Registrable Shares as to which any registration is
being effected to furnish to the Company any other information regarding such seller and the
distribution of such securities as the Company may from time to time reasonably request in writing.
(e) Each seller of Registrable Shares agrees by having its shares treated as Registrable
Shares hereunder that, upon notice that the Prospectus included in such Registration Statement (or
any document incorporated therein) contains an untrue statement of a material fact or omits any
material fact necessary to make the statements therein not misleading or that such Prospectus or
Registration Statement (or any document incorporated therein) must be amended or supplemented for
any other reason (a “Suspension Notice”), such seller will forthwith discontinue
disposition of Registrable Shares for a reasonable length of time not to exceed sixty (60) days
until such seller is advised in writing by the Company that the use of the Prospectus may be
resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section
6(a)(iv) hereof, and, if so directed by the Company, such seller will deliver to the Company
(at the Company’s expense) all copies, other than permanent file copies then in such seller’s
possession, of the Prospectus covering such Registrable Shares current at the time of receipt of
such notice; provided, however, that such postponement of sales of Registrable
Shares by the Holders shall not exceed ninety (90) days in the aggregate in any one (1) year. If
the Company shall give any notice to suspend the disposition of Registrable Shares pursuant to a
Prospectus, the Company shall extend the period of time during which the Company is required
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to maintain the Registration Statement effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice to and including
the date such seller either is advised by the Company that the use of the Prospectus may be resumed
or receives the copies of the supplemented or amended Prospectus contemplated by Section
6(a)(iv). In any event, the Company shall not be entitled to deliver more than three (3)
Suspension Notices in any one (1) year.
| 7. | Registration Expenses. |
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, listing application fees, printing expenses, transfer agent’s and
registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and all independent
certified public accountants and other Persons retained by the Company (all such expenses being
herein called “Registration Expenses”) (but not including any underwriting discounts or
commissions attributable to the sale of Registrable Shares or fees and expenses of more than one
counsel representing the Holders of Registrable Shares), shall be borne by the Company. In
addition, the Company shall pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance which the Company may
elect to obtain and the expenses and fees for listing the securities to be registered on each
securities exchange on which they are to be listed.
(b) In connection with each registration initiated hereunder (whether a Demand Registration or
a Piggyback Registration), the Company shall reimburse the Holders covered by such registration or
sale for the reasonable fees and disbursements of one law firm, plus local counsel as necessary,
chosen by the Holders of a majority of the Registrable Shares included in such registration or
sale.
(c) The obligation of the Company to bear the expenses described in Section 7(a) and
to reimburse the Holders for the expenses described in Section 7(b) shall apply
irrespective of whether a registration, once properly demanded, if applicable, becomes effective,
is withdrawn or suspended, is converted to another form of registration and irrespective of when
any of the foregoing shall occur; provided, however, that Registration Expenses for
any supplements or amendments to a Registration Statement or Prospectus resulting from a
misstatement furnished to the Company by a Holder shall be borne by such Holder. If any
Registration Statement for a Demand Registration is withdrawn solely at the request of a Holder of
Registrable Shares (unless withdrawn following postponement of filing by the Company in accordance
with Sections 2(d)(i) or (ii)) and such request is the second or subsequent such
withdrawal request by any Holder complied with by the Company, then at the election of the
requesting Holder, either such Holder shall bear the Registration Expenses for such Registration
Statement, or the number of Demand Registrations available to such Holder shall be reduced by one.
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| 8. | Indemnification. |
(a) The Company shall indemnify, to the fullest extent permitted by law, each Holder, each
underwriter for such Holder, their respective officers, directors and Affiliates and each Person
who controls such Holder or underwriter (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading or any violation or alleged violation by the Company of the Securities Act,
the Exchange Act or applicable “blue sky” laws, except insofar as the same are made in reliance and
in conformity with information relating to such Holder furnished in writing to the Company by such
Holder expressly for use therein or caused by such Holder’s failure to deliver to such Holder’s
immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or
supplements thereto (if the same was required by applicable law to be so delivered).
(b) In connection with any Registration Statement in which a Holder of Registrable Shares is
participating, each such Holder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company,
its officers, directors, Affiliates and each Person who controls the Company (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent that the same are made in
reliance and in conformity with information relating to such Holder furnished in writing to the
Company by such Holder expressly for use therein or caused by such Holder’s failure to deliver to
such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any
amendments or supplements thereto (if the same was required by applicable law to be so delivered)
after the Company has furnished such Holder with a sufficient number of copies of the same;
provided, however, that the obligation to indemnify shall be several, not joint and
several, among such Holders and the liability of each such Holder shall be in proportion to and
limited to the net amount received by such Holder from the sale of Registrable Shares pursuant to
such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification;
provided, however, that the failure to notify the indemnifying party shall not
relieve the indemnifying party from any liability that it may have under this Section 8
except to the extent that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve the indemnifying party from any liability that it
may have to an indemnified party otherwise than under this Section 8 and (ii) unless in
such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim
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with counsel reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable judgment of any
indemnified party there may be one or more legal or equitable defenses available to such
indemnified party which are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt written notice shall not
release the indemnifying party from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and shall survive the transfer of
securities.
(e) If the indemnification provided for in or pursuant to this Section 8 is due in
accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified Person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in connection with the
statements or omissions which result in such losses, claims, damages, liabilities or expenses as
well as any other relevant equitable considerations. The relative fault of the indemnifying party
on the one hand and of the indemnified Person on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. In no
event shall the liability of any selling Holder be greater in amount than the amount of net
proceeds received by such Holder upon such sale or the amount for which such indemnifying party
would have been obligated to pay by way of indemnification if the indemnification provided for
under Section 8(a) or 8(b) hereof had been available under the circumstances.
| 9. | Participation in Underwritten Registrations. |
No Person may participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
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| 10. | Miscellaneous. |
(a) Notices. All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by
registered or certified mail or by facsimile transmission (with immediate telephone confirmation
thereafter), each an “issuance” for the purposes of the notice requirements of this Agreement,
If to the Company:
If to the Stockholders:
Xxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Xxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
or if to another Holder, to the addresses set forth on the counterpart signature pages of this
Agreement signed by such Holders.
If to a transferee Holder, to the address of such Holder set forth in the transfer
documentation provided to the Company or at such other address as such party each may specify by
written notice to the others, and each such notice, request, consent and other communication shall
for all purposes of the Agreement be treated as being effective or having been given when delivered
personally or upon receipt of facsimile confirmation if transmitted by facsimile, or, if sent by
mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and postage prepaid as
aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
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(c) Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors in estate, it being
understood that such subsequent beneficiaries of the Registrable Shares are intended third party
beneficiaries of this Agreement.
(d) Governing Law. The laws of the State of New York shall govern the enforceability
and validity of this Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties, without regard to the principles of conflicts of laws thereof.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal or state court located in the County and State of
New York, and each of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided in this Section
10(e) shall be deemed effective service of process on such party.
(f) Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives any
and all right to trial by jury in any legal proceeding arising out of or related to this Agreement
or the transactions contemplated hereby.
(g) Counterparts; Effectiveness. This Agreement may be executed in any number of
counterparts (including by facsimile) and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All such counterparts shall
be deemed an original, shall be construed together and shall constitute one and the same
instrument. This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(h) Entire Agreement. This Agreement contains the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes and replaces all other prior
agreements, written or oral, among the parties hereto with respect to the subject matter hereof.
(i) Captions. The headings and other captions in this Agreement are for convenience
and reference only and shall not be used in interpreting, construing or enforcing any provision of
this Agreement.
(j) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in
15
good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Amendments. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the prior written consent of the holders of a
majority of the Registrable Shares (as constituted on the date hereof); provided,
however, that without a Holder’s written consent no such amendment, modification,
supplement or waiver shall affect adversely such Holder’s rights hereunder in a discriminatory
manner inconsistent with its adverse effects on rights of other Holders hereunder (other than as
reflected by the different number of shares held by such Holder); provided,
further, that the consent or agreement of the Company shall be required with regard to any
termination, amendment, modification or supplement of, or waivers or consents to departures from,
the terms hereof, which affect the Company’s obligations hereunder. This Agreement cannot be
changed, modified, discharged or terminated by oral agreement.
(l) Aggregation of Shares. All Registrable Shares held by or acquired by any
Affiliated Persons will be aggregated together for the purpose of determining the availability of
any rights under this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties hereto as of
the date first written above.
| RIDGEBURY TANKERS LTD |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | President and Chief Executive Officer | |||
| STOCKHOLDERS |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| By: | ||||
| Name: | Xxxxx X. Xxxxxxx | |||
17
