EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into as of
______________, 2006, by and among Xxxxxxxx XxXxxxx Acquisition Corporation, a
Delaware corporation (the "COMPANY") and the undersigned parties listed under
Investor on the signature page hereto (each, an "INVESTOR" and collectively, the
"INVESTORS").
WHEREAS, the Investors currently hold all of the issued and outstanding
securities of the Company;
WHEREAS, Xxxxx X. XxXxxxx shall, concurrently with the Company's initial
public offering, purchase units of the Company and Warrants (as hereinafter
defined) in a private placement (the "PRIVATE PLACEMENT"); and
WHEREAS, the Investors and the Company desire to enter into this Agreement
to provide the Investors with certain rights relating to the registration of the
Company's securities held by them.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have the following
meanings:
"AGREEMENT" means this Agreement, as amended, restated, supplemented, or
otherwise modified from time to time.
"BOARD" means the board of directors of the Company.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act or the Exchange Act.
"COMMON STOCK" means the common stock, par value $0.0001 per share, of the
Company.
"COMPANY" is defined in the preamble to this Agreement.
"DEMANDING HOLDER" is defined in Section 2.1.1.
"DEMAND REGISTRATION" is defined in Section 2.1.1.
"DEUTSCHE BANK" means Deutsche Bank Securities Inc.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
"FORM S-3" is defined in Section 2.3.
"INDEMNIFIED PARTY" is defined in Section 4.3.
"INDEMNIFYING PARTY" is defined in Section 4.3.
"INVESTOR" is defined in the preamble to this Agreement.
"INVESTOR INDEMNIFIED PARTY" is defined in Section 4.1.
"IPO SIDE LETTERS" means those certain Side Letters, of even date herewith,
executed by each of the Investors and acknowledged by the Company.
"MAXIMUM NUMBER OF SHARES" is defined in Section 2.1.4.
"NOTICES" is defined in Section 6.3.
"OPTION SECURITIES" is defined in Section 2.1.4.
"PERSON" means an individual, a partnership, a limited liability company, a
joint venture, a corporation, a trust, an unincorporated organization, a
government or any department or agency thereof or any entity similar to any of
the foregoing.
"PIGGY-BACK REGISTRATION" is defined in Section 2.2.1.
"PRIVATE PLACEMENT AGREEMENT" means the Amended and Restated Placement Unit
and Warrant Purchase Agreement, dated _____ __, 2006, between the Company and
Xxxxx XxXxxxx.
"REGISTER," "REGISTERED" and "REGISTRATION" mean a registration effected by
preparing and filing a registration statement or similar document in compliance
with the requirements of the Securities Act, and such registration statement
becoming effective.
"REGISTRABLE SECURITIES" mean all of the shares of Common Stock and
Warrants or units composed of shares of Common Stock and Warrants owned or held
by Investors prior to the date hereof or purchased in the Private Placement.
Registrable Securities include any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of such shares of Common Stock.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding, or (d)
the Registrable Securities are salable under Rule 144(k).
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of Common
Stock (other than a registration statement
2
on Form S-4 or Form S-8, or their successors, or any registration statement
covering only securities proposed to be issued in exchange for securities or
assets of another entity).
"RELEASE DATE" means the date on which the lock up period (as described in
Section 10 of the IPO Side Letters or Section 5 of the Private Placement
Agreement, as applicable), applicable to the Registrable Securities is
terminated.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"UNIT PURCHASE OPTION" is defined in Section 2.1.4.
"WARRANT" means a warrant to purchase one share of the Common Stock for
$6.00.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION.
2.1.1. REQUEST FOR REGISTRATION. At any time commencing ninety (90)
days prior to, and from time to time on or after the Release Date, the holders
of at least 50.1% of the Registrable Securities, on an as-converted to Common
Stock basis, held by the Investors or the permitted transferees of the
Investors, may make a written demand for registration under the Securities Act
of all or part of their Registrable Securities (a "DEMAND REGISTRATION"). Any
demand for a Demand Registration shall specify the number of shares of
Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all holders of Registrable
Securities of the demand, and each holder of Registrable Securities who wishes
to include all or a portion of such holder's Registrable Securities in the
Demand Registration (each such holder including shares of Registrable Securities
in such registration, a "DEMANDING HOLDER") shall so notify the Company in
writing within fifteen (15) days after the receipt by the holder of the notice
from the Company. Upon any such request, the Demanding Holders shall be entitled
to have their Registrable Securities included in the Demand Registration,
subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The
Company shall not be obligated to effect more than an aggregate of two (2)
Demand Registrations under this Section 2.1.1 in respect of Registrable
Securities.
2.1.2. EFFECTIVE REGISTRATION. A registration will not count as a
Demand Registration until the Registration Statement filed with the Commission
with respect to such Demand Registration has been declared effective and the
Company has complied with all of its material obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the
Registration Statement with respect to such Demand Registration will be deemed
not to have been declared effective, unless and
3
until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest, of the Demanding Holders thereafter
elects to continue the offering; provided, further, that the Company shall not
be obligated to file a second Registration Statement until a Registration
Statement that has been filed is counted as a Demand Registration or is
terminated.
2.1.3. UNDERWRITTEN OFFERING. If a majority-in-interest, of the
Demanding Holders so elects and such holders so advise the Company as part of
their written demand for a Demand Registration, the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering. In such event, the right of any holder to include its
Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting to the extent provided herein. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest, of the holders initiating the Demand Registration.
2.1.4. REDUCTION OF OFFERING. If the managing Underwriter or
Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount
or number of shares of Registrable Securities which the Demanding Holders desire
to sell, taken together with all other shares of Common Stock or other
securities which the Company desires to sell and the shares of Common Stock, if
any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights held by other stockholders of the Company who
desire to sell, exceeds the maximum dollar amount or maximum number of shares
that can be sold in such offering without adversely affecting the proposed
offering price, the timing, the distribution method, or the probability of
success of such offering (such maximum dollar amount or maximum number of
shares, as applicable, the "MAXIMUM NUMBER OF SHARES"), then the Company shall
include in such registration: (i) first, the Registrable Securities as to which
Demand Registration has been requested by the Demanding Holders (pro rata in
accordance with the number of shares of Registrable Securities which such
Demanding Holders have requested be included in such registration, regardless of
the number of shares held by each such Person (such proportion is referred to
herein as "PRO RATA")) that can be sold without exceeding the Maximum Number of
Shares; (ii) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (i), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clauses (i) and (ii), the
shares of Common Stock or other securities registrable pursuant to the terms of
the Unit Purchase Option issued to Deutsche Bank or its designees in connection
with the Company's initial public offering (the "UNIT PURCHASE OPTION" and such
registrable securities, the "OPTION SECURITIES") as to which "piggy-back"
registration has been requested by the holders thereof, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i), (ii), and (iii), the shares of Common Stock or other
securities for the account of other Persons that the Company is obligated to
register pursuant to written contractual arrangements with such Persons and that
can be sold without exceeding the Maximum Number
4
of Shares; and (v) fifth, to the extent that the Maximum Number of Shares have
not been reached under the foregoing clauses (i), (ii), (iii) and (iv), the
shares of Common Stock that other shareholders desire to sell that can be sold
without exceeding the Maximum Number of Shares to the extent that the Company,
in its sole discretion, wishes to permit such sales pursuant to this clause (v).
2.1.5. WITHDRAWAL. If a majority-in-interest of the Demanding Holders
disapprove of the terms of any underwriting or are not entitled to include all
of their Registrable Securities in any offering, such majority-in-interest of
the Demanding Holders may elect to withdraw from such offering by giving written
notice to the Company and the Underwriter or Underwriters of their request to
withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest
of the Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration
provided for in Section 2.1, provided that the majority-in-interest of the
Demanding Holders electing to so withdraw from the offering pays all costs and
expenses incurred by the Company in connection with such withdrawn Demand
Registration.
2.1.6. PERMITTED DELAYS. The Company shall be entitled to postpone,
for up to 60 days, the filing of any Registration Statement under this Section
2.1, if (a) at any time prior to the filing of such Registration Statement the
Company's Board of Directors determines, in its good faith business judgment,
that such registration and offering would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material transaction
involving the Company, and (b) the Company delivers to the Demanding Holders
written notice thereof within five (5) business days of the date of receipt of
such request for Demand Registration.
2.2. PIGGY-BACK REGISTRATION.
2.2.1. PIGGY-BACK RIGHTS. If at any time on or after the Release Date
the Company proposes to file a Registration Statement under the Securities Act
with respect to an offering of equity securities, or securities or other
obligations exercisable or exchangeable for, or convertible into, equity
securities, by the Company for its own account or for stockholders of the
Company for their account (or by the Company and by stockholders of the Company
including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company's existing stockholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan, then the Company shall (x) give written notice of such
proposed filing to the holders of Registrable Securities as soon as practicable
but in no event less than ten (10) days before the anticipated filing date,
which notice shall describe the amount and type of securities to be included in
such offering, the intended method(s) of distribution, and the name of the
proposed managing Underwriter or Underwriters, if any, of the offering, and (y)
offer to the holders of Registrable Securities in such notice the opportunity to
register the sale of such number of shares of Registrable Securities as such
holders may request in writing within five (5) days following receipt of such
notice (a "PIGGY-BACK REGISTRATION"). The Company shall cause such Registrable
5
Securities to be included in such registration and shall use commercially
reasonable efforts to cause the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to
be included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to
distribute their securities through a Piggy-Back Registration that involves an
Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2. REDUCTION OF OFFERING. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common Stock, if any, as
to which registration has been demanded pursuant to written contractual
arrangements with Persons other than the holders of Registrable Securities
hereunder, the Registrable Securities as to which registration has been
requested under this Section 2.2, and the shares of Common Stock, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(a) If the registration is undertaken for the Company's account: (A)
first, the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; (B) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (A), the shares of Common Stock or
other securities, if any, comprised of Registrable Securities and Option
Securities, as to which registration has been requested pursuant to the
applicable written contractual piggy-back registration rights of such
security holders, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; and (C) third, to the extent that the Maximum Number of
shares has not been reached under the foregoing clauses (A) and (B), the
shares of Common Stock or other securities for the account of other Persons
that the Company is obligated to register pursuant to written contractual
piggy-back registration rights with such Persons and that can be sold
without exceeding the Maximum Number of Shares;
(b) If the registration is a "demand" registration undertaken at the
demand of holders of Option Securities, (A) first, the shares of Common
Stock or other securities for the account of the demanding Persons, Pro
Rata, that can be sold without exceeding the Maximum Number of Shares; (B)
second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the shares of Registrable Securities, Pro Rata, as to which
registration has been requested pursuant to the terms hereof, that can be
sold without exceeding the Maximum Number of Shares; and (D) fourth, to the
extent that the Maximum Number of Shares has not been reached
6
under the foregoing clauses (A), (B) and (C), the shares of Common Stock or
other securities for the account of other Persons that the Company is
obligated to register pursuant to written contractual arrangements with
such Persons, that can be sold without exceeding the Maximum Number of
Shares; and
(c) If the registration is a "demand" registration undertaken at the
demand of Persons other than either the holders of Registrable Securities
or of Option Securities, (A) first, the shares of Common Stock or other
securities for the account of the demanding Persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; (C) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (A) and (B), collectively the
shares of Common Stock or other securities comprised of Registrable
Securities and Option Securities, Pro Rata, as to which registration has
been requested pursuant to the terms hereof and of the Unit Purchase
Option, as applicable, that can be sold without exceeding the Maximum
Number of Shares; and (D) fourth, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A), (B) and (C),
the shares of Common Stock or other securities for the account of other
Persons that the Company is obligated to register pursuant to written
contractual arrangements with such Persons, that can be sold without
exceeding the Maximum Number of Shares.
2.2.3. WITHDRAWAL. Any holder of Registrable Securities may elect to
withdraw such holder's request for inclusion of Registrable Securities in any
Piggy-Back Registration by giving written notice to the Company of such request
to withdraw prior to the effectiveness of the Registration Statement. The
Company (whether on its own determination or as the result of a withdrawal by
Persons making a demand pursuant to written contractual obligations) may
withdraw a registration statement at any time prior to the effectiveness of the
Registration Statement without thereby incurring any liability to the holders of
Registrable Securities. Notwithstanding any such withdrawal, the Company shall
pay all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 3.3.
2.2.4. PERMITTED DELAYS. The Company shall be entitled to postpone,
for up to 60 days, the filing of any Registration Statement under this Section
2.2, if (a) at any time prior to the filing of such Registration Statement the
Company's Board of Directors determines, in its good faith business judgment,
that such registration and offering would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material transaction
involving the Company, and (b) the Company delivers to the holder of Registrable
Securities requesting a Piggy-Back Registration written notice thereof within
five (5) business days of the date of receipt by the Company of such request for
Piggy-Back Registration.
2.3. REGISTRATIONS ON FORM S-3. The holders of Registrable Securities may
at any time and from time to time, request in writing that the Company register
the resale of any or all of such Registrable Securities on Form S-3 or any
similar short-form registration which may be
7
available at such time ("FORM S-3"); PROVIDED, however, that the Company shall
not be obligated to effect such request through an underwritten offering. Upon
receipt of such written request, the Company will promptly give written notice
of the proposed registration to all other holders of Registrable Securities,
and, as soon as practicable thereafter, effect the registration of all or such
portion of such holder's or holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other holder or holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; PROVIDED, however, that the Company shall not be
obligated to effect any such registration pursuant to this Section 2.3: (i) if
Form S-3 is not available for such offering; or (ii) if the holders of the
Registrable Securities, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the
public of less than $500,000. Registrations effected pursuant to this Section
2.3 shall not be counted as Demand Registrations effected pursuant to Section
2.1.
3. REGISTRATION PROCEDURES.
3.1. FILINGS; INFORMATION. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company
shall use commercially reasonable efforts to effect the registration and sale of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection with any
such request:
3.1.1. FILING REGISTRATION STATEMENT. The Company shall, as
expeditiously as possible and in any event within sixty (60) days after receipt
of a request for a Demand Registration pursuant to Section 2.1, prepare and file
with the Commission a Registration Statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of all Registrable Securities to be
registered thereunder in accordance with the intended method(s) of distribution
thereof, and shall use commercially reasonable efforts to cause such
Registration Statement to become and remain effective for the period required by
Section 3.1.3; PROVIDED, however, that the Company shall have the right to defer
any Demand Registration for up to sixty (60) days, and any Piggy-Back
Registration for such period as may be applicable to deferment of any demand
registration to which such Piggy-Back Registration relates, in each case if the
Company shall furnish to the holders a certificate signed by the Chief Executive
Officer or Chairman of the Company stating that, in the good faith judgment of
the Board, it would be materially detrimental to the Company and its
stockholders for such Registration Statement to be effected at such time;
PROVIDED further, however, that the Company shall not have the right to exercise
the right set forth in the immediately preceding proviso more than once in any
365-day period in respect of a Demand Registration hereunder.
3.1.2. COPIES. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Registrable Securities included in such registration,
and such holders' legal counsel, copies of such Registration Statement as
proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents
incorporated
8
by reference therein), the prospectus included in such Registration Statement
(including each preliminary prospectus), and such other documents as the holders
of Registrable Securities included in such registration or legal counsel for any
such holders may request in order to facilitate the disposition of the
Registrable Securities owned by such holders.
3.1.3. AMENDMENTS AND SUPPLEMENTS. The Company shall prepare and file
with the Commission such amendments, including post-effective amendments, and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
in compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement (which period shall not exceed the sum of one
hundred eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been withdrawn.
3.1.4. NOTIFICATION. After the filing of a Registration Statement, the
Company shall promptly, and in no event more than two (2) business days after
such filing, notify the holders of Registrable Securities included in such
Registration Statement of such filing, and shall further notify such holders
within two (2) business days of the occurrence of any of the following: (i) when
such Registration Statement becomes effective; (ii) when any post-effective
amendment to such Registration Statement becomes effective; (iii) the issuance
or threatened issuance by the Commission of any stop order (and the Company
shall take all commercially reasonable actions required to prevent the entry of
such stop order or to remove it if entered); and (iv) any request by the
Commission for any amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of
filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
3.1.5. STATE SECURITIES LAWS COMPLIANCE. The Company shall use
commercially reasonable efforts to (i) register or qualify the Registrable
Securities covered by the Registration Statement under such securities or "blue
sky" laws of such jurisdictions in the United States as the holders of
Registrable Securities included in such Registration Statement (in light of
their intended plan of distribution) may request and (ii) take such action
necessary to cause such
9
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; PROVIDED,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph or subject itself to taxation in any such jurisdiction.
3.1.6. AGREEMENTS FOR DISPOSITION. The Company shall enter into
customary agreements (including, if applicable, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities. The
representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters, to the
extent applicable, shall also be made to and for the benefit of the holders of
Registrable Securities included in such registration statement. No holder of
Registrable Securities included in such registration statement shall be required
to make any representations or warranties in the underwriting agreement except,
if applicable, with respect to such holder's organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder's material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished in
writing expressly for inclusion in such Registration Statement.
3.1.7. COOPERATION. The principal executive officer of the Company,
the principal financial officer of the Company, the principal accounting officer
of the Company and all other officers and members of the management of the
Company shall cooperate fully in any offering of Registrable Securities
hereunder, which cooperation shall include, without limitation, the preparation
of the Registration Statement with respect to such offering and all other
offering materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants and potential investors.
3.1.8. RECORDS. The Company shall make available for inspection by the
holders of Registrable Securities included in such Registration Statement, any
Underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by any
holder of Registrable Securities included in such Registration Statement or any
Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers, directors
and employees to supply all information requested by any of them in connection
with such Registration Statement.
3.1.9. OPINIONS AND COMFORT LETTERS. The Company shall furnish to each
holder of Registrable Securities included in any Registration Statement a signed
counterpart, addressed to such holder, of (i) any opinion of counsel to the
Company delivered to any Underwriter and (ii) any comfort letter from the
Company's independent public accountants delivered to any Underwriter. In the
event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any
10
time that such holder elects to use a prospectus, an opinion of counsel to the
Company to the effect that the Registration Statement containing such prospectus
has been declared effective and that no stop order is in effect.
3.1.10. EARNINGS STATEMENT. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities Act, and
make available to its stockholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months 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.
3.1.11. LISTING. The Company shall use commercially reasonable efforts
to cause all Registrable Securities included in any registration to be listed on
such exchanges or otherwise designated for trading in the same manner as similar
securities issued by the Company are then listed or designated or, if no such
similar securities are then listed or designated, in a manner satisfactory to
the majority-in-interest of the holders of Registrable Securities included in
such registration.
3.2. OBLIGATION TO SUSPEND DISTRIBUTION. Upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to
Section 2.3 hereof, upon any suspension by the Company, pursuant to a written
xxxxxxx xxxxxxx compliance program adopted by the Board, of the ability of all
"insiders" covered by such program to transact in the Company's securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of "insiders" to transact in the
Company's securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3. REGISTRATION EXPENSES. The Company shall bear all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1, any
Piggy-Back Registration pursuant to Section 2.2, and any registration on Form
S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or "blue sky" laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable
Securities as required by Section 3.1.11; (vi) National Association of
Securities Dealers, Inc. fees; (vii) fees and disbursements of counsel for the
Company and fees and expenses for independent certified public accountants
retained by the Company (including the expenses or costs associated with the
delivery of any opinions or comfort letters requested pursuant to Section
3.1.9); (viii) the fees
11
and expenses of any special experts retained by the Company in connection with
such registration and (ix) the fees and expenses of one legal counsel selected
by the holders of a majority-in-interest of the Registrable Securities included
in such registration. The Company shall have no obligation to pay any
underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the holders thereof, which underwriting discounts or
selling commissions shall be borne by such holders. Additionally, in an
underwritten offering, all selling stockholders and the Company shall bear the
expenses of the underwriter pro rata in proportion to the respective amount of
shares each is selling in such offering.
3.4. INFORMATION. The holders of Registrable Securities shall provide such
information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration
Statement, including amendments and supplements thereto, in order to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Section 2 and in connection with the Company's obligation to comply with federal
and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless each Investor and each other holder of Registrable Securities, and
each of their respective officers, employees, affiliates, directors, partners,
members, attorneys and agents, and each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) an Investor and each other holder of Registrable Securities (each, an
"INVESTOR INDEMNIFIED PARTY"), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material
fact contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Investor
Indemnified Party for any legal and any other expenses reasonably incurred by
such Investor Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action; PROVIDED,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or allegedly untrue statement or omission or alleged
omission made in such Registration Statement, preliminary prospectus, final
prospectus, or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by such selling holder expressly for use therein.
4.2. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each selling
holder of Registrable Securities will, in the event that any registration is
being effected under the
12
Securities Act pursuant to this Agreement of any Registrable Securities held by
such selling holder, indemnify and hold harmless the Company, each of its
directors and officers and each underwriter (if any), and each other selling
holder and each other Person, if any, who controls another selling holder or
such underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or
controlling Person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder's indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any net
proceeds actually received by such selling holder.
4.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by any
Person of any notice of any loss, claim, damage or liability or any action in
respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such
Person (the "INDEMNIFIED PARTY") shall, if a claim in respect thereof is to be
made against any other Person for indemnification hereunder, notify such other
Person (the "INDEMNIFYING PARTY") in writing of the loss, claim, judgment,
damage, liability or action; PROVIDED, however, that the failure by the
Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to
such Indemnified Party hereunder, except and solely to the extent the
Indemnifying Party is actually prejudiced by such failure. If the Indemnified
Party is seeking indemnification with respect to any claim or action brought
against the Indemnified Party, then the Indemnifying Party shall be entitled to
participate in such claim or action, and, to the extent that it wishes, jointly
with all other Indemnifying Parties, to assume control of the defense thereof
with counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling Persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
13
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding.
4.4. CONTRIBUTION.
4.4.1. If the indemnification provided for in the foregoing Sections
4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss,
claim, damage, liability or action referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party 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 such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding Section
4.4.1.
4.4.3. The amount paid or payable by an Indemnified Party as a result
of any loss, claim, damage, liability or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no holder of Registrable
Securities shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such holder from the sale of
Registrable Securities which gave rise to such contribution obligation. 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.
5. UNDERWRITING AND DISTRIBUTION.
5.1. RULE 144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
14
6. MISCELLANEOUS.
6.1. OTHER REGISTRATION RIGHTS. Except with respect to those securities
issued or issuable upon exercise of that certain Unit Purchase Option to be
issued to Deutsche Bank or its designees in connection with the Company's
initial public offering on [__] 2006, the Company represents and warrants that
no Person, other than a holder of the Registrable Securities, has any right to
require the Company to register any shares of the Company's capital stock for
sale or to include shares of the Company's capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other Person.
6.2. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. This Agreement and the rights,
duties and obligations of the holders of Registrable Securities hereunder may be
freely assigned or delegated by such holder of Registrable Securities in
conjunction with and to the extent of any transfer of Registrable Securities
held by any such holder. This Agreement and the provisions hereof shall be
binding upon and shall inure to the benefit of each of the parties, to Deutsche
Bank and its successors and the permitted assigns of the Investor or holder of
Registrable Securities or of any assignee of the Investor or holder of
Registrable Securities. This Agreement is not intended to confer any rights or
benefits on any Persons that are not party hereto other than as expressly set
forth in Article 4 and this Section 6.2.
6.3. NOTICES. All notices, demands, requests, consents, approvals or other
communications (collectively, "NOTICES") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable overnight courier service
with charges prepaid, or transmitted by hand delivery or facsimile, addressed as
set forth below, or to such other address as such party shall have specified
most recently by written notice. Notice shall be deemed given on the date of
service or transmission if personally served or transmitted by facsimile;
PROVIDED, that if such service or transmission is not on a business day or is
after normal business hours, then such notice shall be deemed given on the next
business day. Notice otherwise sent as provided herein shall be deemed given on
the next business day following timely delivery of such notice to a reputable
overnight courier service with an order for next-day delivery.
To the Company:
Xxxxxxxx XxXxxxx Acquisition Corporation
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxx-Xxxxx
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
15
To an Investor, to the address for such Investor specified on the signature
pages hereto.
6.4. SEVERABILITY. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible that is valid and enforceable.
6.5. COUNTERPARTS. This Agreement may be executed by facsimile and in
multiple counterparts, and all of which taken together shall constitute one and
the same instrument.
6.6. ENTIRE AGREEMENT. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.7. MODIFICATIONS AND AMENDMENTS. No amendment, modification or
termination of this Agreement shall be binding upon any party unless executed in
writing by such party. This Agreement cannot be amended or modified in any way
that would adversely affect Deutsche Bank without the prior written consent of
Deutsche Bank.
6.8. TITLES AND HEADINGS. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
6.9. WAIVERS AND EXTENSIONS. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, PROVIDED that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10. REMEDIES CUMULATIVE. In the event that the Company fails to observe
or perform any covenant or agreement to be observed or performed under this
Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under this
Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
16
6.11. GOVERNING LAW. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the State of
New York, without giving effect to conflicts of law principles that would result
in the application of the substantive laws of another jurisdiction. The parties
hereto agree that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive. The parties hereby waive any objection to
such exclusive jurisdiction and that such courts represent an inconvenient
forum.
6.12. WAIVER OF TRIAL BY JURY. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
By: ____________________________________
Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive
Officer
INVESTORS
By: ____________________________________
Name:
Address:
By: ____________________________________
Name:
Address:
By: ____________________________________
Name:
Address:
By: ____________________________________
Name:
Address:
By: ____________________________________
Name:
Address:
