FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This REGISTRATION RIGHTS AGREEMENT is dated as of February •, 2010 and is by and between Crude
Carriers Corp., a Xxxxxxxx Islands corporation (the “Company”), and Crude Carriers
Investments Corp., a Xxxxxxxx Islands corporation.
In consideration of the mutual covenants and agreements herein contained and other good and
valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:
1. Certain Definitions.
(a) In addition to the terms defined elsewhere in this Agreement, the following terms shall
have the following meanings:
(b) “Affiliate” of any Person means any other Person which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
such Person.
(c) “Agreement” means this Registration Rights Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at the time such reference
becomes operative.
(d) “Class B Stock” means shares of the Class B Stock, par value $0.0001 per share, of
the Company.
(e) “Common Stock” means shares of Common Stock, par value $0.0001 per share, of the
Company, including Common Stock issuable upon conversion of Class B Stock and any other shares into
which such shares are converted pursuant to a recapitalization or reorganization.
(f) “Company” has the meaning set forth in the introductory paragraph.
(g) “Control,” including the terms “controlling,” “controlled by” and “under common
control with,” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the ownership of voting
shares, by contract or otherwise. A person who is the owner of 20% or more of the outstanding
voting shares of any corporation, partnership, unincorporated association or other entity shall be
presumed to have control of such entity, in the absence of proof by a preponderance of the evidence
to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such
person holds voting shares, in good faith and not for the purpose of circumventing this provision,
as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not
individually or as a group have control of such entity.
(h) “Demand Registration” has the meaning set forth in Section 2(a) hereof.
(i) “Dissolution” has the meaning set forth in Section 9 hereof.
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(j) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(k) “Governmental Entity” means any national, federal, state, municipal, local,
territorial, foreign or other government or any department, commission, board, bureau, agency,
regulatory authority or instrumentality thereof, or any court, judicial, administrative or arbitral
body or public or private tribunal.
(l) “Holder” means any Person that owns Registrable Shares, including the Stockholder
and such successors and permitted assigns as acquire Registrable Shares, directly or indirectly,
from such Person. For purposes of this Agreement, the Company may deem and treat the registered
holder of Registrable Shares as the Holder and absolute owner thereof, and the Company shall not be
affected by any notice to the contrary.
(m) “Initiating Holders” has the meaning set forth in Section 2(a) hereof.
(n) “Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, incorporated or unincorporated organization, association,
corporation, institution, public benefit corporation, Governmental Entity or any other entity.
(o) “Piggyback Registration” has the meaning set forth in Section 4(a) hereof.
(p) “Prospectus” means the prospectus or prospectuses included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Shares covered by such Registration Statement and by
all other amendments and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
(q) “Qualifying IPO” means the sale in an underwritten initial public offering
registered under the Securities Act of shares of Common Stock of the Company.
(r) “Registrable Shares” means shares of Common Stock held by the Stockholder or any
Affiliate of the Stockholder, shares of Common Stock receivable upon the conversion of Class B
Stock held by the Stockholder or any Affiliate of the Stockholder or any shares of any successor or
acquiror of the Company issued in exchange or substitution for any of the foregoing in connection
with any acquisition, merger, combination or similar transaction involving the Company or any
successor of the Company; provided, however, that Registrable Shares shall not include any
securities sold by a Person to the public either pursuant to a Registration Statement or Rule 144
or any securities that may be sold pursuant to Rule 144 without restriction or limitation on volume
or manner of sale.
(s) “Registration Expenses” has the meaning set forth in Section 7(a) hereof.
(t) “Registration Statement” means any registration statement of the Company which
covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such Registration
Statement.
(u) “SEC” means the U.S. Securities and Exchange Commission.
(v) “Securities Act” means the Securities Act of 1933, as amended.
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(w) “Senior Management” means the Chief Executive Officer, President and/or Chief
Financial Officer of the Company.
(x) “Shelf Registration” has the meaning set forth in Section 3(a) hereof.
(y) “Stockholder” means Crude Carriers Investments Corp. and its successors and
permitted assigns.
(z) “Suspension Notice” has the meaning set forth in Section 6(f) hereof.
(aa) “underwritten registration” or “underwritten offering” means a
registration in which securities of the Company are sold to underwriters for reoffering to the
public.
(bb) “Withdrawn Demand Registration” has the meaning set forth in Section 2(f)
hereof.
2. Demand Registrations.
(a) Right to Request Registration. At any time commencing 180 days following the
closing of a Qualifying IPO, any Holder or Holders (“Initiating Holders”) of either (i) a
number of Registrable Shares equal to at least 25% of the number of Registrable Shares as of the
date hereof or (ii) Registrable Shares having an aggregate market value of at least $10 million at
the time of request may request registration under the Securities Act (“Demand
Registration”) of all or part of the Registrable Shares; provided, however,
that each Demand Registration be for Registrable Shares.
Within ten (10) days after receipt of any such request for Demand Registration, the Company
shall give written notice of such request to all other Holders of Registrable Shares and shall,
subject to the provisions of Section 2(d) hereof, include in such registration all such
Registrable Shares with respect to which the Company has received written requests for inclusion
therein within fifteen (15) days after the receipt of the Company’s notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 2(a), the Initiating Holders of Registrable Shares shall collectively be entitled
to request an aggregate of two (2) Demand Registrations in any one twelve (12) month period and a
maximum of four (4) Demand Registrations. A registration shall not count as one of the permitted
Demand Registrations (i) until it has become effective, (ii) if the Initiating Holders requesting
such registration are not able to have registered and sold at least 50% of the Registrable Shares
requested by such Initiating Holders to be included in such registration or (iii) in the case of a
Demand Registration that would be the last permitted Demand Registration requested hereunder, if
the Initiating Holders requesting such registration are not able to have registered and sold all of
the Registrable Shares requested to be included by such Initiating Holders in such registration.
(c) Priority on Demand Registrations. The Company shall not include in any Demand
Registration any securities which are not Registrable Shares without the written consent of the
Holders of a majority of the Registrable Shares to be included in such registration, or, if such
Demand Registration is an underwritten offering, without the written consent of the managing
underwriters. If the managing underwriters of the requested Demand Registration advise the Company
in writing that in their opinion the number of Registrable Shares proposed to be included in any
such registration exceeds the number of securities which can be sold in such offering without
having an adverse affect on such offering, including the price at which such Registrable Shares can
be sold, the Company shall include in such registration only the number of Registrable Shares which
in the reasonable opinion of such managing underwriters can be sold without having the adverse
effect referred to above. If the number of shares which can be sold
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without having the adverse effect referred to above is less than the number of Registrable
Shares proposed to be registered, the amount of Registrable Shares to be so sold shall be allocated
pro rata among the Holders of Registrable Shares desiring to participate in such registration on
the basis of the amount of such Registrable Shares initially proposed to be registered by such
Holders. If the number of shares which can be sold exceeds the number of Registrable Shares
proposed to be sold, such excess shall be allocated pro rata among the other holders of securities,
if any, desiring to participate in such registration based on the amount of such securities
initially requested to be registered by such holders or as such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be obligated to
effect any Demand Registration within three (3) months after the termination of an offering under a
previous Demand Registration or a previous registration under which the Initiating Holder had
piggyback rights pursuant to Section 4 hereof where the Initiating Holder was permitted to
register and sell 50% or more of the Registrable Shares requested to be included therein. The
Company may postpone for up to ninety (90) days the filing or the effectiveness of a Registration
Statement for a Demand Registration if (i) the Company’s board of directors reasonably determines
that a Demand Registration would reasonably be expected to materially and adversely affect an
offering of securities of the Company, the preparation of which had then been commenced, (ii) the
Company is in possession of material non-public information the disclosure of which during the
period specified in such notice the Company’s board of directors reasonably believes would not be
in the best interests of the Company, or (iii) such Demand Registration would render the Company
unable to comply with the requirements of applicable securities laws; provided,
however, that in the event described above, the Initiating Holders requesting such Demand
Registration shall be entitled to withdraw such request prior to its effective date and, if such
request is withdrawn, such Demand Registration shall not count as one of the permitted Demand
Registrations. The Company shall provide written notice to the Initiating Holders requesting such
Demand Registration of (i) any postponement or withdrawal of the filing or effectiveness of a
Registration Statement pursuant to this Section 2(d), (ii) the Company’s decision to file or seek
effectiveness of such Registration Statement following such withdrawal or postponement and
(iii) the effectiveness of such Registration Statement. The Company may defer the filing of a
particular Registration Statement pursuant to this Section 2(d) only once during any twelve (12)
month period.
(e) Selection of Underwriters. If any of the Registrable Shares covered by a Demand
Registration are to be sold in an underwritten offering, the Initiating Holders shall have the
right, but not the obligation, to select the managing underwriter(s) to administer the offering
subject to the approval of the Company, which approval shall not be unreasonably withheld or
delayed.
(f) Effective Period of Demand Registrations. After any Demand Registration filed
pursuant to this Agreement has become effective, the Company shall use its reasonable best efforts
to keep such Demand Registration effective for a period equal to 180 days from the date on which
the SEC declares such Demand Registration effective (or if such Demand Registration is not
effective during any period within such 180 days, such 180-day period shall be extended by the
number of days during such period when such Demand Registration is not effective), or such shorter
period which shall terminate when all of the Registrable Shares covered by such Demand Registration
have been sold pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to Section 2(d) (a “Withdrawn Demand Registration”), the Initiating Holders
of the Registrable Shares remaining unsold and originally covered by such Withdrawn Demand
Registration shall be entitled to a replacement Demand Registration which (subject to the
provisions of this Section 2) the Company shall use its reasonable best efforts to keep effective
for a period commencing on the effective date of such Demand Registration and ending on the earlier
to occur of the date (i) which is 180 days from the effective date of such Demand Registration and
(ii) on which all of the Registrable Shares covered by such Demand Registration have been sold.
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3. Shelf Registration.
(a) At such time as the Company is able to use Form F-3 under the Securities Act (or any
successor or similar form) for sales of Registrable Shares by a Holder, at the request of one or
more Holders of the lesser of (A) a number of Registrable Shares equal to at least 25% of the
number of Registrable Shares as of the date hereof or (B) Registrable Shares having an aggregate
market value of at least $10 million at the time of request, the Company shall use its reasonable
best efforts to effect, as expeditiously as possible, the registration under the Securities Act of
any number of Registrable Shares for which it receives requests in accordance with
Section 2(a) (the “Shelf Registration”). The Company shall use its reasonable best
efforts to cause such Registration Statement to become effective as promptly as practicable and
maintain the effectiveness of such Registration Statement (subject to the terms and conditions
herein) for a period ending on the earlier of (i) three (3) years following the date on which such
Registration Statement first becomes effective (but one (1) year if the Company is not able to
continue to use Form F-3 under the Securities Act (or any successor or similar form)), and (ii) the
date on which all Registrable Shares covered by such Registration Statement have been sold, and the
distribution contemplated thereby has been completed, or have become freely saleable pursuant to
Rule 144 without restriction or limitation on volume or manner of sale.
(b) The Shelf Registration Statement pursuant to this Section 3 shall, to the extent
possible under applicable law, be effected to permit sales on a continuous basis pursuant to
Rule 415 under the Securities Act. Any sale pursuant to the Shelf Registration pursuant to this
Section 3 may or may not be underwritten; provided, however, that
(i) Holders may request any underwritten takedown only to be effected as a Demand Registration (in
which event, unless such Demand Registration would not require representatives of the Company to
meet with prospective purchasers of the Company’s securities, a Demand Registration must be
available thereunder and the number of Demand Registrations available shall be reduced by one
subject to Section 2(b)) or (ii) Holders may request an unlimited number of underwritten
takedowns to be effected in accordance with the terms of Section 4.
(c) In the event of a request for a Shelf Registration pursuant to Section 3(a), the
Company shall give written notice of the proposed filing of the Registration Statement in
connection therewith to all Holders of Registrable Shares offering to each such Holder the
opportunity to have any or all of the Registrable Shares held by such Holder included in such
registration statement. Each Holder of Registrable Shares desiring to have its Registrable Shares
registered under this Section 3(c) shall so advise the Company in writing within fifteen
(15) days after the date of such notice from the Company (which request shall set forth the amount
of Registrable Shares for which registration is requested), and the Company shall include in such
Registration Statement all such Registrable Shares so requested to be included therein.
(d) The number, percentage, fraction or kind of shares referred to in this Section 3
shall be appropriately adjusted for any stock dividend, stock split, reverse stock split,
combination, recapitalization, reclassification, merger or consolidation, exchange or distribution
in respect of the shares of Common Stock.
(e) The Company, and any other holder of the Company’s securities who has registration rights,
may include its securities in any Shelf Registration effected pursuant to this Section 3.
4. Piggyback Registrations.
(a) Right to Piggyback. If at any time commencing 180 days following the closing of a
Qualifying IPO the Company proposes to register any of its common equity securities under the
Securities Act (other than a registration statement on Form F-8 or on Form F-4 or any similar
successor
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forms thereto or a registration statement covering an offering of convertible securities),
whether for its own account or for the account of one or more stockholders of the Company, and the
registration form to be used may be used for any registration of Registrable Shares (a
“Piggyback Registration”), the Company shall give prompt written notice to each Holder of
Registrable Shares having a market value at such time of at least $5 million of its intention to
effect such a registration and, subject to Sections 4(b) and 4(c), shall include in
such registration all Registrable Shares with respect to which the Company has received written
requests for inclusion therein within fifteen (15) days after the effectiveness of the Company’s
notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback
Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without having an adverse effect
on such offering, the Company shall include in such registration (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Shares requested to be included therein by
the Holders, pro rata among the Holders of such Registrable Shares on the basis of the number of
shares requested to be registered by such Holders, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company’s securities other than
Registrable Shares, and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration exceeds the number
which can be sold in such offering without having an adverse effect on such offering, the Company
shall include in such registration (i) first, the securities requested to be included therein by
the holders requesting such registration and the Registrable Shares requested to be included in
such registration, pro rata among the holders of such securities on the basis of the number of
shares requested to be registered by such holders, and (ii) second, other securities requested to
be included in such registration pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders or as such holders may otherwise agree.
(d) Selection of Underwriters. If any Piggyback Registration is an underwritten
primary offering, the Company shall have the right, but not the obligation, to select the managing
underwriter or underwriters to administer any such offering. If the Piggyback Registration is an
underwritten secondary offering, the holders of a majority (in value) of the securities to be
included in such offering shall have the right, but not the obligation, to select the managing
underwriter or underwriters to administer any such offering subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed, provided that, if holders of
a majority (in value) do not select such managing underwriter or underwriters within (15) days
after the effectiveness of the Company’s notice contemplated by Section 4(a), the Company shall
have the right, but not the obligation, to select such managing underwriter or underwriters.
(e) Other Registrations. If the Company has previously filed a Registration Statement
with respect to Registrable Shares, and if such previous registration has not been withdrawn or
abandoned, the Company shall not be obligated to cause to become effective any other registration
of any of its securities under the Securities Act, whether on its own behalf or at the request of
any holder or holders of such securities, until a period of at least ninety (90) days has elapsed
from the termination of the offering under the previous registration.
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5. Holdback Agreements.
The Company agrees not to effect any sale or distribution of any of its common equity
securities during the ten (10) days prior to and during the 90 days beginning on the pricing date
of any underwritten offering pursuant to any Demand Registration or any Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations on Form F-8 or F-4
or any successor forms thereto) unless the underwriters managing the offering otherwise agree to a
shorter period.
6. Registration Procedures.
(a) Whenever the Holders request that any Registrable Shares be registered pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the registration and the
sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such
Registrable Shares and use its reasonable best efforts to cause such Registration
Statement to become effective as soon as practicable thereafter; and before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
furnish to the Holders of Registrable Shares covered by such Registration Statement
and the underwriter or underwriters, if any, copies of all such documents proposed
to be filed, including documents incorporated by reference in the Prospectus and, if
requested by such Holders, the exhibits incorporated by reference, and such Holders
shall have the opportunity to object to any information pertaining to such Holders
that is contained therein and the Company will make the corrections reasonably
requested by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
(ii) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for a period of not less
than 180 days, in the case of a Demand Registration or such shorter period as is
necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement;
(iii) furnish to each seller of Registrable Shares such number of copies of
such Registration Statement, each amendment and supplement thereto, the Prospectus
included in such Registration Statement (including each preliminary Prospectus) and
such other documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Shares owned by such seller;
(iv) use its reasonable best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Shares owned by such seller;
provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph 6(a)(iv),
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(B) subject itself to taxation in any such jurisdiction, or (C) consent to
general service of process in any such jurisdiction;
(v) notify each seller of such Registrable Shares, at any time when a
Prospectus relating thereto is required to be delivered under the Securities Act, of
the occurrence of any event as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a material fact or omits any
fact necessary to make the statements therein not misleading, and, at the request of
any such seller, the Company shall prepare a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of such Registrable
Shares, such Prospectus shall not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading;
(vi) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form with customary
indemnification provisions) and take all such other actions as the Holders of a
majority of the Registrable Shares being sold or the underwriters reasonably request
in order to expedite or facilitate the disposition of such Registrable Shares
(including, without limitation, making members of Senior Management of the Company
available to participate in, and cause them to cooperate with the underwriters in
connection with, “road-show” and other customary marketing activities (including
one-on-one meetings with prospective purchasers of the Registrable Shares)) and
cause to be delivered to the underwriters and the sellers, if any, opinions of
counsel to the Company in customary form, covering such matters as are customarily
covered by opinions for an underwritten public offering as the underwriters may
request and addressed to the underwriters and the sellers;
(vii) make available, for inspection by any seller of Registrable Shares, any
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by any such seller
or underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company’s officers, directors, employees
and independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement, subject to any confidentiality restrictions which the
Company reasonably deems necessary;
(viii) use its reasonable best efforts to cause all such Registrable Shares to
be listed on the principal securities exchange on which securities of the same class
issued by the Company are then listed;
(ix) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an underwritten
offering, at the time of delivery of any Registrable Shares sold pursuant thereto),
letters from the Company’s independent certified public accountants addressed to
each selling Holder (unless such selling Holder does not provide to such accountants
the appropriate representation letter required by rules governing the accounting
profession) and each underwriter, if any, stating that such accountants are
independent public accountants within the meaning of the Securities Act and the
applicable rules and regulations adopted by the SEC thereunder, and otherwise in
customary form and covering such financial and accounting matters as are customarily
covered by letters of the independent certified public
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accountants delivered in connection with primary or secondary underwritten
public offerings, as the case may be;
(x) make generally available to its stockholders a consolidated earnings
statement (which need not be audited) for the twelve (12) months beginning after the
effective date of a Registration Statement as soon as reasonably practicable after
the end of such period, which earnings statement shall satisfy the requirements of
an earning statement under Section 11(a) of the Securities Act; and
(xi) promptly notify each seller of Registrable Shares and the underwriter or
underwriters, if any:
(A) when the Registration Statement, any pre-effective amendment, the
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective;
(B) of any comments of the SEC or of any written request by the SEC for
amendments or supplements to the Registration Statement or Prospectus;
(C) of the notification to the Company by the SEC of its initiation of
any proceeding with respect to the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement; and
(D) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Shares for sale under
the applicable securities or blue sky laws of any jurisdiction.
(b) The Company shall ensure that no Registration Statement (including any amendments or
supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or necessary to make
the statements therein not misleading (except, with respect to any Holder, for an untrue statement
or alleged untrue statement of a material fact or omission or alleged omission of a material fact
made in reliance on and in conformity with written information furnished to the Company by or on
behalf of such Holder specifically for use therein).
(c) The Company shall make available to each Holder whose Registrable Shares are included in a
Registration Statement (i) promptly after the same is prepared and publicly distributed, filed with
the SEC, or received by the Company, one copy of each Registration Statement and any amendment
thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each
letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other
governmental agency or self-regulatory body or other body having jurisdiction, including any
domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff
of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction,
including any domestic or foreign securities exchange), in each case relating to such Registration
Statement (other than any portion thereof which contains information for which the Company has
sought confidential treatment), and (ii) such number of copies of a Prospectus, including a
preliminary Prospectus, and all amendments and supplements thereto and such other documents as such
Holder may reasonably request in order to facilitate the disposition of the Registrable Shares
owned by such Holder. The Company will promptly notify each Holder by facsimile of the
effectiveness of each Registration Statement or any post-effective
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amendment. The Company will promptly respond to any and all comments received from the SEC,
with a view towards causing each Registration Statement or any amendment thereto to be declared
effective by the SEC as soon as practicable and shall file an acceleration request as soon as
practicable following the resolution or clearance of all SEC comments or, if applicable, following
notification by the SEC that any such Registration Statement or any amendment thereto will not be
subject to review.
(d) At all times after the Company has filed a registration statement with the SEC pursuant to
the requirements of either the Securities Act or the Exchange Act, the Company shall file all
reports required to be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and take such further action as any Holders may
reasonably request, all to the extent required to enable such Holders to be eligible to sell
Registrable Shares pursuant to Rule 144 (or any similar rule then in effect).
(e) The Company may require each seller of Registrable Shares as to which any registration is
being effected to furnish to the Company any other information regarding such seller and the
distribution of such securities as the Company may from time to time reasonably request in writing.
(f) Each seller of Registrable Shares agrees by having its shares treated as Registrable
Shares hereunder that, upon notice that the Prospectus included in such Registration Statement (or
any document incorporated therein) contains an untrue statement of a material fact or omits any
material fact necessary to make the statements therein not misleading or that such Prospectus or
Registration Statement (or any document incorporated therein) must be amended or supplemented for
any other reason (a “Suspension Notice”), such seller will forthwith discontinue
disposition of Registrable Shares for a reasonable length of time not to exceed sixty (60) days
until such seller is advised in writing by the Company that the use of the Prospectus may be
resumed and is furnished with a supplemented or amended Prospectus as contemplated by
Section 6(a)(v) hereof, and, if so directed by the Company, such seller will deliver to the
Company (at the Company’s expense) all copies, other than permanent file copies then in such
seller’s possession, of the Prospectus covering such Registrable Shares current at the time of
receipt of such notice; provided, however, that such postponement of sales of
Registrable Shares by the Holders shall not exceed ninety (90) days in the aggregate in any one
(1) year. If the Company shall give any notice to suspend the disposition of Registrable Shares
pursuant to a Prospectus, the Company shall extend the period of time during which the Company is
required to maintain the Registration Statement effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such notice to and including
the date such seller either is advised by the Company that the use of the Prospectus may be resumed
or receives the copies of the supplemented or amended Prospectus contemplated by
Section 6(a)(v). In any event, the Company shall not be entitled to deliver more than three
(3) Suspension Notices in any one (1) year.
7. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, listing application fees, printing expenses, transfer agent’s and
registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and all independent
certified public accountants and other Persons retained by the Company (all such expenses being
herein called “Registration Expenses”) (but not including any underwriting discounts or
commissions attributable to the sale of Registrable Shares or fees and expenses of more than one
counsel representing the Holders of Registrable Shares), shall be borne by the Company. In
addition, the Company shall pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability
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insurance which the Company may elect to obtain and the expenses and fees for listing the
securities to be registered on each securities exchange on which they are to be listed.
(b) In connection with each registration initiated hereunder (whether a Demand Registration or
a Piggyback Registration), the Company shall reimburse the Holders covered by such registration or
sale for the reasonable fees and disbursements of one law firm, plus local counsel as necessary,
chosen by the Holders of a majority of the Registrable Shares included in such registration or
sale.
(c) The obligation of the Company to bear the expenses described in Section 7(a) and
to reimburse the Holders for the expenses described in Section 7(b) shall apply
irrespective of whether a registration, once properly demanded, if applicable, becomes effective,
is withdrawn or suspended, is converted to another form of registration and irrespective of when
any of the foregoing shall occur; provided, however, that Registration Expenses for
any supplements or amendments to a Registration Statement or Prospectus resulting from a
misstatement furnished to the Company by a Holder shall be borne by such Holder. If any
Registration Statement for a Demand Registration is withdrawn solely at the request of a Holder of
Registrable Shares (unless withdrawn following postponement of filing by the Company in accordance
with Sections 2(d)(i) or (ii)) and such request is the second or subsequent such
withdrawal request by any Holder complied with by the Company, then at the election of the
requesting Holder, either such Holder shall bear the Registration Expenses for such Registration
Statement, or the number of Demand Registrations available to such Holder shall be reduced by one.
8. Best Available Rights Terms.
The Company shall not grant to any Person the right to request the Company to register any
common equity securities of the Company except such rights as are not materially more favorable
than or inconsistent with the rights granted to the Holders herein. In the event the Company grants
rights which are materially more favorable, the Company will make such provisions available to the
Holders and will enter into any amendments necessary to confer such rights on the Holders.
9. Distribution of Rights upon Dissolution of the Stockholder.
If at any time after the execution date of this Agreement, the Stockholder shall cease to
exist for any reason as a legal entity (a “Dissolution”) and prior to such Dissolution the
Stockholder distributed its shares in the Company to its members or if the Stockholder has
otherwise distributed such shares to its members, then such members shall have the same rights and
obligations under this Agreement as granted to the Stockholder as if such Dissolution had not
occurred.
10. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by law, each Holder, each
underwriter for such Holder, their respective officers, directors and Affiliates and each Person
who controls such Holder or underwriter (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading or any violation or alleged violation by the Company of the Securities Act,
the Exchange Act or applicable “blue sky” laws, except insofar as the same are made in reliance and
in conformity with information relating to such Holder furnished in writing to the Company by such
Holder expressly for use therein or caused by such Holder’s failure to deliver to such Holder’s
immediate purchaser a copy of the Registration Statement or
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Prospectus or any amendments or supplements thereto (if the same was required by applicable
law to be so delivered).
(b) In connection with any Registration Statement in which a Holder of Registrable Shares is
participating, each such Holder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company,
its officers, directors Affiliates, and each Person who controls the Company (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent that the same are made in
reliance and in conformity with information relating to such Holder furnished in writing to the
Company by such Holder expressly for use therein or caused by such Holder’s failure to deliver to
such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any
amendments or supplements thereto (if the same was required by applicable law to be so delivered)
after the Company has furnished such Holder with a sufficient number of copies of the same;
provided, however, that the obligation to indemnify shall be several, not joint and
several, among such Holders and the liability of each such Holder shall be in proportion to and
limited to the net amount received by such Holder from the sale of Registrable Shares pursuant to
such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification;
provided, however, that the failure to notify the indemnifying party shall not
relieve the indemnifying party from any liability that it may have under this Section 10
except to the extent that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve the indemnifying party from any liability that it
may have to an indemnified party otherwise than under this Section 10 and (ii) unless in
such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party there may be one or more legal or equitable defenses available to
such indemnified party which are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt written notice shall not
release the indemnifying party from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and shall survive the transfer of
securities.
(e) If the indemnification provided for in or pursuant to this Section 10 is due in
accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified Person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the
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indemnified party on the other in connection with the statements or omissions which result in
such losses, claims, damages, liabilities or expenses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand and of the indemnified
Person on the other shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party or by the indemnified party, and by
such party’s relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. In no event shall the liability of any selling Holder be
greater in amount than the amount of net proceeds received by such Holder upon such sale or the
amount for which such indemnifying party would have been obligated to pay by way of indemnification
if the indemnification provided for under Section 10(a) or 10(b) hereof had been
available under the circumstances.
11. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
12. Rule 144.
The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as any Holder may reasonably request to make available
adequate current public information with respect to the Company meeting the current public
information requirements of Rule 144 under the Securities Act, to the extent required to enable
such Holder to sell Registrable Shares without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of any Holder, the Company will deliver to such Holder a written statement as
to whether it has complied with such information and requirements.
13. Miscellaneous.
(a) Notices. All notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by registered
or certified mail or by facsimile transmission (with immediate telephone confirmation thereafter),
If to the Company:
Attn: Chief Financial Officer
If to the Stockholder:
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Crude Carriers Investments Corp.
0 Xxxxxxxx Xxxxxx
Xxxxxxx 000 00
Xxxxxx
Fax: x00 000 000 0000
0 Xxxxxxxx Xxxxxx
Xxxxxxx 000 00
Xxxxxx
Fax: x00 000 000 0000
or if to another Holder, to the addresses set forth on the counterpart signature pages of this
Agreement signed by such Holders.
If to a transferee Holder, to the address of such Holder set forth in the transfer
documentation provided to the Company or at such other address as such party each may specify by
written notice to the others, and each such notice, request, consent and other communication shall
for all purposes of the Agreement be treated as being effective or having been given when delivered
personally or upon receipt of facsimile confirmation if transmitted by facsimile, or, if sent by
mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and postage prepaid as
aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns, it being understood that subsequent Holders of the Registrable Shares are intended third
party beneficiaries of this Agreement. Any purported assignment of rights under this agreement to
a Person other than the Stockholder, a successor of the Stockholder or affiliate of the Stockholder
shall be void unless made in a duly-executed writing signed by the assignor.
(d) Other Registration Rights. The Company shall not grant to any Person the right,
to request the Company to register any securities of the Company except such rights as are not more
favorable than or inconsistent with the rights granted to the Holders herein. In the event the
Company grants rights which are more favorable, the Company will make such provisions available to
the Holders and will enter into any amendments necessary to confer such rights on the Holders.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(f) Jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction and venue of the United States District Court for
the Southern District of New York and in the courts hearing appeals therefrom unless no basis for
federal jurisdiction exists, in which event each party hereto irrevocably consents to the exclusive
jurisdiction and venue of the Supreme Court of the State of New York, New York County, and the
courts hearing appeals therefrom, for any action, suit or proceeding arising out of or relating to
this Agreement and the transactions contemplated hereby. Each of the parties hereto irrevocably and
unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any such action, suit or proceeding, any claim that such party is not personally
subject to the jurisdiction of the aforesaid courts for any reason, other than the failure to serve
process in accordance with this Section 13(f), that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution of
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judgment, execution of judgment or otherwise), and to the fullest extent permitted by
applicable law, that the action, suit or proceeding in any such court is brought in an inconvenient
forum, that the venue of such action, suit or proceeding is improper, or that this Agreement, or
the subject matter hereof, may not be enforced in or by such courts and further irrevocably waives,
to the fullest extent permitted by applicable law, the benefit of any defense that would hinder,
xxxxxx or delay the levy, execution or collection of any amount to which the party is entitled
pursuant to the final judgment of any court having jurisdiction. Each of the parties hereto
expressly acknowledges that the foregoing waivers are intended to be irrevocable under the laws of
the State of New York and of the United States of America; provided, that consent by the parties
hereto to jurisdiction and service contained in this Section 13(f) is solely for the purpose
referred to in this Section 13(f) and shall not be deemed to be a general submission to said courts
or in the State of New York other than for such purpose.
(g) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY, OR OTHERWISE.
(h) Counterparts. This Agreement may be executed in any number of counterparts with
the same effect as if all signatory parties had signed the same document. All counterparts shall be
construed together and shall constitute one and the same instrument.
(i) Entire Agreement. This Agreement constitutes the entire agreement of the parties
relating to the matters contained herein, superseding all prior contracts or agreements, whether
oral or written, relating to the matters contained herein.
(j) Captions. The headings and other captions in this Agreement are for convenience
and reference only; they are not part of this Agreement and shall not be used in interpreting,
construing or enforcing any provision of this Agreement.
(k) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(l) Amendments. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the prior written consent of the holders of a
majority of the Registrable Shares (as constituted on the date hereof); provided,
however, that without a Holder’s written consent no such amendment, modification,
supplement or waiver shall affect adversely such Holder’s rights hereunder in a discriminatory
manner inconsistent with its adverse effects on rights of other Holders hereunder (other than as
reflected by the different number of shares held by such Holder); and provided,
further, that the consent or agreement of the Company shall be required with regard to any
termination, amendment, modification or supplement of, or waivers or consents to departures from,
the
- 15 -
terms hereof, which affect the Company’s obligations hereunder. This Agreement cannot be
changed, modified, discharged or terminated by oral agreement.
(m) Aggregation of Shares. All Registrable Shares held by or acquired by any
Affiliated Persons will be aggregated together for the purpose of determining the availability of
any rights under this Agreement.
(n) Equitable Relief. Without limiting the remedies available, the parties hereto
acknowledge that any failure by the Company to comply with its obligations under this Agreement
will result in material irreparable injury to the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder shall have the right to obtain such relief as may be required
to specifically enforce the Company’s obligations under this Agreement.
[Remainder of Page Intentionally Left Blank]
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