REGISTRATION RIGHTS AGREEMENT
Exhibit
10.8
This
Registration Rights Agreement (this “Agreement”)
is made
and entered into as of October 31, 2008, by Hyde Park Acquisition Corp., a
Delaware corporation (the “Company”),
in
favor of Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxxxxx X.
X’Xxxxxx (collectively, the “Investors.”).
A. The
Company and the Investors are parties to that certain Amended and Restated
Limited Liability Company Agreement (the “LLC
Agreement”)
of
Essex Holdings, dated as of even date herewith, pursuant to which the Investors
have the right to exchange limited liability company interests in Essex Holdings
LLC (the “LLC
Interests”)
for
shares of the Company’s Common Stock (each such transaction, an “Exchange”);
B. Each
of
the Investors are party to certain Lock-Up Agreements with the Company, pursuant
to which each of the Investors have agreed to certain restrictions on their
right to transfer the shares of Common Stock issuable upon an Exchange;
and
C. The
Company desires to provide the Investors certain registration rights with
respect to the shares of the Company’s Common Stock issuable upon an
Exchange.
| 1. |
REGISTRATION
RIGHTS.
|
1.1 Definitions.
For
purposes of this Agreement:
(a) Common
Stock.
The
term “Common
Stock”
means
the Company’s common stock, $0.0001 par value per share.
(b) Exchange
Act.
The term
“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.
(c) Holder.
The
term “Holder”
means
any person owning of record Registrable Securities or any assignee of record
of
such Registrable Securities to whom rights set forth herein have been duly
assigned in accordance with this Agreement.
(d) Reserved.
(e) Reserved.
(f) Maximum
Number of Shares.
The
“Maximum
Number of Shares”
means
the maximum dollar amount or maximum number of shares that can be sold in a
particular 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.
(g) Principals. The
term
“Principals”
means
Xxxxxxxx Xxxx and Xxxxxx Xxxx, and their respective affiliates.
(h) Principal
Rights Agreement.
The
term “Principal
Rights Agreement”
refers
to that certain Registration Rights Agreement, dated as of March 5 2007, by
and
among the Company, the Principals and Xxxxx Xxxx.
(i) Principal
Shares. The
term
“Principal
Shares” means
(i)
all of the shares of Common Stock owned or held by the Principals prior to
the
consummation of the Company’s initial public offering or (ii) all of the
warrants purchased privately by the Principals simultaneously with the
consummation of the Company’s initial public offering (and underlying shares of
Common Stock) and owned or held by the Principals upon consummation of the
Company’s initial public offering.
(j) Registrable
Securities.
The
term “Registrable
Securities”
means
(i) the
Common Stock issuable upon Exchange of the LLC Interests and (ii) any shares
of
Common Stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, any shares of Common Stock
described in clause (i). 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 transferred pursuant to Rule
144 of the Securities Act, 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 may be sold by the Holder without
restriction, or (d) such securities shall have ceased to be outstanding.
(k) Registration.
The
terms “register,” “registration”
and
“registered”
refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(l) SEC.
The
term “SEC”
or
“Commission”
means
the U.S. Securities and Exchange Commission.
(m) Securities
Act.
The
term “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.
(n) Underwriter.
The
term “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.
1.2 Reserved.
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1.3 Registrations
on behalf of Holders.
(a) Piggy-Back
Registration.
(1) In
the
event that, prior to the second anniversary of the date hereof, any of the
Principal Shares are to be registered for sale pursuant to a registration
statement under the Securities Act, or on or after the second anniversary of
the
date hereof, any shares of Common Stock are to be registered for sale pursuant
to a registration statement under the Securities Act 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, (x) the Company shall send notice thereof to the Holders
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 the opportunity to
register the sale of such number of shares of Registrable Securities as such
Holder may request in writing within five (5) days following receipt of such
notice (a “Piggy-Back
Registration”).
The
Company shall cause such Registrable Securities to be included in such
registration and shall use its best 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 being sold in such offering
and
to permit the sale or other disposition of such Registrable Securities in
accordance with the intended method(s) of distribution thereof. All Holders
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) 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 Principals or the Company desire 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 1.3(a), 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:
(i) 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 Principal Shares, as to which registration has been
requested pursuant to the applicable written contractual piggy-back registration
rights of such security holders, pro rata in accordance with the number of
Shares that each such person has requested be included in such registration,
regardless of the number of Shares held by such person (“Pro Rata”) that can be
sold without exceeding the Maximum Number of Shares (but without prejudice
to or
reduction of the rights of the holders of Option Securities (as defined in
the
Principal Rights Agreement) pursuant to that certain Unit Purchase Option,
dated
March 5, 2007 (the “Unit
Purchase Option”));
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;
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(iii)
If the registration is a “demand” registration undertaken at the demand of
persons other than either the holders of Registrable Securities or Principal
Shares, (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), the shares of Common Stock or other securities comprised of Registrable
Securities and Principal Shares, Pro Rata, as to which registration has been
requested pursuant to the applicable written contractual piggy-back registration
rights of such security holders, that can be sold without exceeding the Maximum
Number of Shares (but without prejudice to or reduction of the rights of the
holders of Option Securities pursuant to the Unit Purchase Option) 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.
(3) Any
Holder may elect to withdraw such Holders’ 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 Principals may withdraw a demand for registration
statement at any time prior to the effectiveness of such registration statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the Holders in connection with such Piggy-Back Registration as provided
in
Section 1.3(c).
(b) Request
for Registration.
(1) At
any
time and from time to time on or after the second anniversary of the date
hereof, the holders of at least 50% of the aggregate number of shares of Common
Stock held by all Holders, on an as-Exchanged basis, may make a written demand
for registration under the Securities Act of all or part of the Registrable
Securities held by such Holders (the “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 the demand, and
each Holder who wishes to include all or a portion of his 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 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 Sections 1.3(b)(2) and 1.3(b)(5). The Company shall
not
be obligated to effect more than one (1) Demand Registration under this Section
1.3(b) in respect of all Registrable Securities held by Holders. Notwithstanding
the foregoing, if, at the time the Company is required to file or effect a
Demand Registration, the Company is eligible to file a Registration Statement
on
Form S-3, then the Company shall have the right to use such form in satisfaction
of its obligations under this Section 1.3(b).
(2) Notwithstanding
the foregoing, if the Company shall, within the twenty day period immediately
following receipt of a written demand pursuant to Section 1.3(b)(1), furnish
to
the Demanding Holders a certificate signed by the Chairman of the Board of
Directors of the Company stating that in the good faith judgment of the Board
of
Directors of the Company it would be detrimental to the Company and its
shareholders to file the Demand Registration because such filing would (i)
materially interfere with a significant acquisition, corporate reorganization,
or other similar transaction involving the Company; (ii) require premature
disclosure of material information that the Company has a bona fide business
purpose for preserving as confidential; or (iii) render the Company unable
to
comply with requirements under the Securities Act or Exchange Act, then the
Company shall have the one-time right to defer such filing for a period of
not
more than forty-five (45) days after the date of delivery of such certificate;
provided, however, the Company shall not register any securities for its own
account or that of any other shareholder during such forty-five (45) day period
other than in connection with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company.
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(3) 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 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 until, (i) such
stop order or injunction is removed, rescinded or otherwise terminated, and
(ii)
a majority-in-interest of the Demanding Holders thereafter elect 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.
(4) If
a
majority-in-interest of the Demanding Holders so elect 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.
(5) 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 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, 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; and (iii) third, to the extent that the Maximum
Number of Shares have not been reached under the foregoing clauses (i) and
(ii),
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 of Shares.
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(6) 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 1.3(b)(1).
(c) Expenses.
All
expenses incurred in connection with a registration pursuant to this Section
1.3, including without limitation all registration, qualification, printers’,
accounting and Company counsel fees shall be borne by the Company. Fees and
expenses of counsel to the selling Holders and any other expenses exclusive
to
the selling Holders, including brokerage commissions or fees, shall be borne
by
the selling Holders. 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 pursuant to this Section 1.3,
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.
1.4 Obligations
of the Company.
When
required to effect the registration of any Registrable Securities under this
Agreement, the Company shall, subject to the provisions of Section
1.4(e)
below,
as expeditiously as reasonably possible:
(a) Use
its
best efforts to prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective as soon as
reasonably practicable, and to remain continuously effective for three years
from the date of effectiveness or until no Registrable Securities are
outstanding, whichever occurs earlier.
(b) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement and comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities of the Company covered by such
registration statement until such time as all of such Registrable Securities
registered thereunder shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth
in
such registration statement. In the case of amendments and supplements to a
registration statement which are required to be filed pursuant to this Agreement
by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K
or
any analogous report under the Exchange Act, the Company shall have incorporated
such report by reference into such registration statement, if applicable, or
shall file such amendments or supplements with the SEC on the same day on which
the Exchange Act report is filed which created the requirement for the Company
to amend or supplement such registration statement.
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(c) Furnish
to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them that are included in
such registration statement.
(d) Use
reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that
the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such states or jurisdictions. The Company shall promptly notify each selling
Holder of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or "blue sky" laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
(e) Notify
each selling Holder of Registrable Securities covered by such registration
statement 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, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing
and
promptly prepare a supplement or amendment to such registration statement to
correct such untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to each selling Holder (or such other number of copies
as such Holder may reasonably request).
(f) Use
its
commercially reasonable efforts to (i) prevent the issuance of any stop order
or
other suspension of effectiveness of any registration statement prepared
hereunder, or the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction and, (ii) if such an order or suspension
is issued, to obtain the withdrawal of such order or suspension at the earliest
possible moment and to notify each Holder who holds Registrable Securities
being
sold of the issuance of such order and the resolution thereof or its receipt
of
actual notice of the initiation or threat of any proceeding for such
purpose.
(g) Use
its
commercially reasonable efforts either to cause all the Registrable Securities
covered by a registration statement prepared hereunder to be listed on each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange. The Company
shall
pay all fees and expenses in connection with satisfying its obligation under
this Section 1.4(g).
(h) Cooperate
with the Holders who hold Registrable Securities being offered and, to the
extent applicable, facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a registration statement filed hereunder
and enable such certificates to be in such denominations or amounts, as the
case
may be, as such Holders may reasonably request and registered in such names
as
such Holders may request.
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(i) If
requested by a selling Holder, use its commercially reasonable efforts to (i)
as
soon as practicable incorporate in a prospectus supplement or post-effective
amendment such information as a selling Holder reasonably requests to be
included therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being offered or sold, the purchase price
being
paid therefor and any other terms of the offering of the Registrable Securities
to be sold in such offering; (ii) as soon as practicable make all required
filings of such prospectus supplement or post-effective amendment after being
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment; and (iii) as soon as practicable, supplement or make
amendments to any registration statement if reasonably requested by a selling
Holder holding any Registrable Securities.
(j) Promptly
make available for inspection by the selling
Holders
and any Underwriter, attorney or accountant or other agent retained by such
Holders, all financial and other records, pertinent corporate documents, and
properties of the Company, and cause the Company’s officers, directors,
employees, and independent accountants to supply all information reasonably
requested by any such Holders
or any
Underwriters,
in each
case, as necessary or advisable to verify the accuracy of the information in
such registration statement and to conduct appropriate due diligence
in
connection therewith.
(k) Notify
each selling
Holder,
promptly after the Company receives notice thereof, of the time when such
registration statement has been declared effective or a supplement to any
prospectus forming a part of such registration statement has been
filed.
(l) After
such registration statement becomes effective, notify each selling
Holder
of
any request by the SEC that the Company amend or supplement such registration
statement or prospectus.
(m) Notwithstanding
any other provision of this Agreement, from and after the time a registration
statement filed under this Section 1 covering Registrable Securities is declared
effective, the Company shall have the right to suspend the registration
statement and the related prospectus in order to prevent premature disclosure
of
any material non-public information related to corporate developments by
delivering notice of such suspension to the Holders, provided,
however,
that the
Company may exercise the right to such suspension only once in any 12-month
period and for a period not to exceed forty-five (45) days. From and after
the
date of a notice of suspension under this Section 1.4(m), each selling Holder
agrees not to use the registration statement or the related prospectus for
resale of any Registrable Security until the earlier of (1) notice from the
Company that such suspension has been lifted or (2) the 60th
day
following the giving of the notice of suspension.
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1.5 Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to Section 1.3 that the selling Holders shall furnish to the
Company or the managing Underwriter, if any, such information regarding
themselves, the Registrable Securities held by them, and the intended method
of
disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
1.6 Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this
Section 1.
1.7 Indemnification.
In the
event any Registrable Securities are included in a registration statement under
Section 1.3:
(a) By
the
Company.
To the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, the partners, officers, directors, members, employees and agents of
each
Holder, any underwriter (as defined in the Securities Act) for such Holder
and
each person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act, against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively, the “Violations”
and,
individually, a “Violation”):
(1) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto;
or
(2) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading;
or
(3) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such registration
statement.
The
Company will promptly reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, after a request for reimbursement has been received by the
Company, in connection with investigating or defending any such loss, claim,
damage, liability or action; provided however,
that
the indemnity agreement contained in this Section 1.7(a)
shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation
which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration under this Agreement
by
such Holder, partner, officer, director, underwriter or controlling person
of
such Holder. The Company also shall indemnify any Underwriter of the Registrable
Securities, their officers, affiliates, directors, partners, members and agents
and each person who controls such Underwriter on substantially the same basis
as
that of the indemnification provided above in this Section 1.7.
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(b) By
Selling Holders.
To the
extent permitted by law, each selling Holder will be required severally and
not
jointly to indemnify and hold harmless the Company, each of its directors,
employees, agents, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning
of
the Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder’s partners,
directors or officers or any person who controls such Holder within the meaning
of the Securities Act or the Exchange Act, against any losses, claims, damages
or liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration under this Agreement. Each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company
or
any such director, officer, controlling person, underwriter or other Holder,
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action; promptly after a request for reimbursement has been
received by the indemnifying Holder, provided,
however,
that
the indemnity agreement contained in this Section 1.7(b)
shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
selling Holder, which consent shall not be unreasonably withheld; and
provided further,
that
the total amounts payable in indemnity by a selling Holder under this
Section 1.7(b)
in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation
arises.
(c) Notice.
Promptly after receipt by an indemnified party under this
Section 1.7
of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1.7,
deliver
to the indemnifying party a written notice of the commencement thereof. The
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided,
however,
that an
indemnified party shall have the right to retain its own counsel, with the
fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party
of
any liability to the indemnified party under this Section 1.7,
but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 1.7.
11
(d) Defect
Eliminated in Final Prospectus.
The
foregoing indemnity agreements of the Company and selling Holders are subject
to
the condition that, insofar as they relate to any Violation made in a
preliminary prospectus but eliminated or remedied in the amended prospectus
on
file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC
Rule 424(b) (the “Final
Prospectus”),
such
indemnity agreement shall not inure to the benefit of any person if a copy
of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Securities Act.
(e) Contribution.
If the
indemnification provided for in this Section 1.7
is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying the indemnified
party, shall contribute to the amount paid or payable by such indemnified party
with respect to such loss, liability, claim, damage or expense in the proportion
that is appropriate to reflect the relative fault of the indemnifying party
and
the indemnified party in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as any
other
relevant equitable considerations. The relative fault of the indemnifying party
and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or
the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party pursuant to a registration under
this Agreement, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
In
any such case, (A) no such Holder will be required to contribute any amount
in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(f) Survival.
The
obligations of the Company and selling Holders under this
Section 1.7
shall
survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
1.8 Rule 144
Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, the Company agrees to:
(a) Make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act;
(b) Use
reasonable efforts to file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
12
(c) So
long
as a Holder owns any Registrable Securities, to furnish to the Holder forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144, and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without
registration.
1.9 No
Net Cash Settlement Value.
In
connection with an Exchange, the Company will not be obligated to deliver
securities, and there are no contractual penalties for failure to deliver
securities, if a registration statement is not effective at the time of an
Exchange; however, the Company may satisfy its obligation by delivering
unregistered shares of Common Stock. In no event will be the Company be required
to net cash settle an Exchange of LLC Interests.
1.10 Additional
Shares.
The
Company, at its option, may register, under any registration statement and
any
filings with any state securities commissions filed pursuant to this Agreement,
any number of unissued shares of Common Stock of the Company or any shares
of
Common Stock or other securities of the Company owned by any other
securityholder(s) of the Company.
2. ASSIGNMENT
AND AMENDMENT.
2.1 Assignment.
The
registration rights of a Holder under Section 1
hereof
may be assigned only to an assignee of LLC Interests permitted under the LLC
Agreement; provided,
however
that no
party may assign any of the foregoing rights unless the Company is given written
notice by the assigning party at the time of such assignment stating the name
and address of the assignee and identifying the securities of the Company as
to
which the rights in question are being assigned; and provided further
that any
such assignee acknowledges in writing the terms and conditions of, and its
obligations as a Holder under, this Agreement.
2.2 Amendment
and Waiver of Rights.
Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and the Holders
(and/or any of their permitted successors and assignors) holding LLC Interests
representing and/or exchangeable for a majority of all of the Holders’ Shares,
or , following such exchange, holding a majority of all of the Holders’ Shares,
provided that the consent of the Holders shall not be required after such time
as the Holders shall not hold any LLC Interests exchangeable for Holders’ Shares
or any Holders’ Shares. As used herein, the term “Holders’
Shares”
shall
mean the shares of Common Stock then issuable upon Exchange of all then
outstanding LLC Interests held by the Holders. Any amendment or waiver effected
in accordance with this Section 2.2
shall be
binding upon each Holder, each permitted successor or assignee of such Holder
and the Company.
13
3. GENERAL
PROVISIONS.
3.1 Notices.
Any and
all notices required or permitted to be given to a party pursuant to the
provisions of this Agreement will be in writing and will be effective and deemed
to provide such party sufficient notice under this Agreement on the earliest
of
the following: (i) at the time of personal delivery, if delivery is in
person; (ii) at the time of transmission by facsimile, addressed to the
other party at its facsimile number specified herein (or hereafter modified
by
subsequent notice to the parties hereto), with confirmation of receipt made
by
both telephone and printed confirmation sheet verifying successful transmission
of the facsimile; (iii) one
(1) business day after deposit with an express overnight courier for United
States deliveries, or two (2) business days after such deposit for deliveries
outside of the United States, with proof of delivery from the courier requested;
or (iv) three (3) business days after deposit in the United States mail by
certified mail (return receipt requested) for United States
deliveries.
All
notices not delivered personally or by facsimile will be sent with postage
and/or other charges prepaid and properly addressed to the party to be notified
at the address or facsimile number as follows, or at such other address or
facsimile number as such other party may designate by one of the indicated
means
of notice herein to the other parties hereto as follows:
(a) if
to a
Holder, at such Holder’s address as set forth on Exhibit A
hereto.
(b) if
to the
Company, marked “Attention: President”, at Hyde Park Acquisition Corp., 000
Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
3.2 Entire
Agreement.
This
Agreement and the documents referred to herein, together with all the Exhibits
hereto, constitute the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement, and supersede any and all
prior
understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof.
3.3 Governing
Law; Jurisdiction.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York , without giving effect to that body of laws pertaining to
conflict of laws. Each of the parties hereto hereby irrevocably consents to
the
exclusive jurisdiction of the courts of the Second Department of the Supreme
Court of the State of New York and the United States District Court for the
Southern District of New York and waives trial by jury in any action or
proceeding with respect to this Agreement.
3.4 Severability.
If any
provision of this Agreement is determined by any court or arbitrator of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given the intent
of the parties hereto. If such clause or provision cannot be so enforced, such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained in this
Agreement. Notwithstanding the forgoing, if the value of this Agreement based
upon the substantial benefit of the bargain for any party is materially
impaired, which determination as made by the presiding court or arbitrator
of
competent jurisdiction shall be binding, then both parties agree to substitute
such provision(s) through good faith negotiations.
14
3.5 Third
Parties.
Nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights
or
remedies under or by reason of this Agreement.
3.6 Successors
And Assigns.
Subject
to the provisions of Section 2.1,
this
Agreement, and the rights and obligations of the parties hereunder, will be
binding upon and inure to the benefit of their respective successors, assigns,
heirs, executors, administrators and legal representatives.
3.7 Titles
and Headings.
The
titles, captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this
Agreement.
3.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered will be deemed an original, and all of which together
shall constitute one and the same agreement.
3.9 Further
Assurances.
The
parties agree to execute such further documents and instruments and to take
such
further actions as may be reasonably necessary to carry out the purposes and
intent of this Agreement.
[Signature
Page Follows]
15
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date and year first
written above.
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By:
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/s/ Xxxxxxxx Xxxx |
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Name:
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Xxxxxxxx Xxxx |
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Title:
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Chief Executive Officer |
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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/s/
Xxxxxxx X. X’Xxxxxx
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Xxxxxxx
X. X’Xxxxxx
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[Signature
page to Registration Rights Agreement]
EXHIBIT
A
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Xxxxxx
X. Xxxxx
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Xxxxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx
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Xxxxxxx
X. X’Xxxxxx
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