REGISTRATION RIGHTS AGREEMENT
| Exhibit 4.3 | ||
| Execution Version |
This Registration Rights Agreement (this “Agreement”) is dated as of November 12, 2009,
by and between Bond Street Holdings LLC, a Delaware limited liability company (the “Company”), Bond
Street Investors LLC, for the benefit of holders of Eligible Co-Investment Interests (as defined
below) and Deutsche Bank Securities Inc. (the “Initial Purchaser/Placement Agent”), for the benefit
of the Holders (as defined below).
A. This Agreement is entered into in connection with (i) the Purchase/Placement Agreement
dated as of November 4, 2009 (the “Purchase Agreement”) between the Company and the Initial
Purchaser/Placement Agent, which provides for the offering and sale (the “Offering”) of up to
21,000,000 limited liability company interests (including the option granted to the Initial
Purchaser/Placement Agent) of the Company, consisting of Class A Interests and Class B
Non-Voting Interests (collectively, the “Common Interests”) and (ii) the concurrent issuance and
sale of the Eligible Co-Investment Interests to Bond Street Investors LLC.
B. In order to induce the investors who are purchasing the Common Interests in the Offering to
purchase such Common Interests and the Initial Purchaser/Placement Agent to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights provided for in this Agreement
for the holders of Registrable Interests (as defined below).
C. The execution and delivery of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties
hereto, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
Additional Mandatory Shelf Registration Statement: As defined in Section 2(b)(iv)
herein.
Additional Interests: Common Interests or other securities issued in respect of the
Interests by reason of or in connection with any dividend, distribution, equity split, or similar
issuance.
Agreement: As defined in the Introductory Paragraph of this Agreement.
Affiliate: As to any specified Person, (i) any Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control with, the
specified Person, (ii) any executive officer, director, trustee, managing member or general partner
of the specified Person and (iii) any legal entity for which the specified Person acts as an
executive officer, director, trustee, managing member or general partner. For purposes of this
definition, “control” (including the correlative meanings of the terms “controlled by” and “under
common control with”), as used with respect to any Person, shall mean the possession, directly, or
indirectly through one or more intermediaries, of the power to direct or cause the direction of the
management and policies of such Person, whether by contract, through the ownership of voting
securities, partnership interests, membership interests or other equity interests or otherwise.
best efforts: With respect to any action required to be taken herein that requires best
efforts, it is understood and agreed that complying with regulatory and accounting requirements
that are applicable to the Company shall be taken into account.
Business Day: With respect to any act to be performed hereunder, each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New
York are authorized or obligated by applicable law, regulation or executive order to close.
Commission: The Securities and Exchange Commission.
Common Interests: As defined in Recital A hereof.
Company: As defined in the Introductory Paragraph of this Agreement, and any successor
thereto.
Eligible Co-Investment Interests: The Common Interests purchased by Bond Street Investors LLC
concurrently with the consummation of the Offering, and that may be purchased by Bond Street
Investors LLC within 45 days of the date of the Company’s Offering Memorandum, dated November 4,
2009, relating to the Offering; provided, however, that any and all Common Interests beneficially
owned by any of the Founders shall not be considered Eligible Co-Investment Interests.
End of Suspension Notice: As defined in Section 5(b) hereof.
Escrow Account: As defined in the Company’s Offering Memorandum, dated November 4,
2009, relating to the Offering.
Escrow Agreement: The Escrow Agreement, dated as of November 12, 2009, by and between the
Company and Deutsche Bank Trust Company Americas.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission pursuant thereto.
FINRA: The Financial Industry Regulatory Authority, Inc.
Founders: Xxxxxx Xxxxx, Xxxxxxx Xxxx and Xxx Xxxxxxxxx, the managers and founding members of
Bond Street Management, LLC.
Holder: Each Participant and its direct or indirect transferees, so long as such Participant
or transferee owns any Registrable Interests.
Indemnified Party: As defined in Section 6(a) hereof.
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Interests: The Rule 144A Interests, the Regulation S Interests and the Regulation D Interests
sold pursuant to the terms and conditions of the Purchase Agreement or the Subscription Agreement
(as defined in the Purchase Agreement).
Investment Transaction Deadline: As defined in the Company’s Offering Memorandum, dated
November 4, 2009, relating to the Offering.
Mandatory IPO Registration Statement: As defined in Section 2(b) hereof.
Mandatory Shelf Registration Statement: The Primary Mandatory Shelf Registration Statement or
the Secondary Mandatory Shelf Registration Statement, as the case may be.
Offering: As defined in Recital A hereof.
Participants: The purchasers in the Offering of: (i) the Regulation D Interests from the
Company, and (ii) Rule 144A Interests and Regulation S Interests from the Initial
Purchaser/Placement Agent; and the purchasers of the Eligible Co-Investment Interests.
Person: An individual, partnership, corporation, limited liability company, trust,
unincorporated organization, government or agency or political subdivision thereof, or any other
legal entity.
Primary Mandatory Shelf Registration Statement: As defined in Section 2(a) hereof.
Prospectus: The prospectus included in any Registration Statement, including any preliminary
prospectus, and all other amendments and supplements to any such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be incorporated
by reference, if any, in such prospectus.
Purchase Agreement: As defined in Recital A of this Agreement, as amended from time to time.
Qualifying Investment Transaction: As defined in the Company’s Offering Memorandum,
dated November 4, 2009, relating to the Offering.
Qualified IPO: An initial public offering of Common Interests, or shares of common stock of
the Company (to the extent that the Company’s form of organization has been converted into a
corporation), in which (a) the public offering price is at least $20.00 per Common Interest and (b)
at least $100,000,000 of Common Interests are sold to the public.
Registrable Interests: Each of the Eligible Co-Investment Interests, the Interests and any
Additional Interests, upon original issuance thereof, and at all times subsequent thereto,
including upon the transfer thereof by the original holder or any subsequent holder, until the
earliest to occur of:
(i) the date on which such Eligible Co-Investment Interests, Interests or
Additional Interests have been sold pursuant to a Registration Statement or
distributed to the public pursuant to Rule 144;
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(ii) the date on which, in the opinion of counsel to the Company, such Eligible
Co-Investment Interests, Interests or Additional Interests not held by “affiliates”
(as defined in Rule 144) of the Company are sellable pursuant to Rule 144; or
(iii) the date on which such Eligible Co-Investment Interests, Interests or
Additional Interests are sold to the Company or any of its subsidiaries.
Registration Expenses: Any and all expenses incident to the performance of or compliance with
this Agreement, including, without limitation: (i) all Commission, securities exchange, FINRA
registration, listing, inclusion and filing fees including, if applicable, the fees and expenses of
any “qualified independent underwriter” (and its counsel) that is required to be retained by any
holder of Registrable Interests in accordance with the rules and regulations of FINRA (ii) all fees
and expenses incurred in connection with compliance with international, federal or state securities
or blue sky laws (including, without limitation, any registration, listing and filing fees and
reasonable fees and disbursements of counsel in connection with blue sky qualification of any of
the Registrable Interests and the preparation of a blue sky memorandum and compliance with the
rules of FINRA), (iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, duplicating, printing, delivering and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales
agreements, certificates and any other documents relating to the performance under and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the listing or
inclusion of any of the Registrable Interests on any securities exchange pursuant to Section 4(m)
of this Agreement, (v) the fees and disbursements of counsel for the Company and of the independent
public accountants of the Company (including, without limitation, the expenses of any special audit
and “cold comfort” letters required by or incident to such performance), and reasonable fees and
disbursements of one counsel for the selling Holders to review the Mandatory Shelf Registration
Statement, any Subsequent Shelf Registration Statement, and, if the Company notifies the Holders
pursuant to Section 2 (b) hereof of its intent to file an IPO Registration Statement within one
year of the date of this Agreement, the IPO Registration Statement, and (vi) any fees and
disbursements customarily paid by issuers in issues and sales of securities (including the fees and
expenses of any experts retained by the Company in connection with any Registration Statement),
provided, however, that Registration Expenses shall exclude brokers’ or underwriters’ discounts and
commissions and transfer taxes or transfer fees, if any, relating to the sale or disposition of
Registrable Interests by a Holder and the fees and disbursements of any counsel to the Holders
other than as provided for in subparagraph (v) above.
Registration Statement: Any Shelf Registration Statement or the IPO Registration Statement (to
the extent that it covers the resale of any Registrable Interests), including the Prospectus,
amendments and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Regulation D: Regulation D (Rules 501-508) promulgated by the Commission under the Securities
Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission as a replacement thereto having substantially the same effect as such
regulation.
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Regulation D Interests: Common Interests initially sold by the Company in accordance with the
Purchase Agreement in accordance with Regulation D and pursuant to the Subscription Agreement (as
defined in the Purchase Agreement).
Regulation S: Regulation S (Rules 901-905) promulgated by the Commission under the Securities
Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission as a replacement thereto having substantially the same effect as such
regulation.
Regulation S Interests: Common Interests initially sold by the Company to the Initial
Purchaser/Placement Agent and resold by the Initial Purchaser/Placement Agent to “non U.S. persons”
in accordance with Regulation S in an “offshore transaction” in accordance with Regulation S.
Rule 144: Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 144A Interests: Common Interests initially sold by the Company to the Initial
Purchaser/Placement Agent and resold by the Initial Purchaser/Placement Agent to “qualified
institutional buyers” (as such term is defined in Rule 144A).
Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 429: Rule 429 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Secondary Mandatory Shelf Registration Statement: As defined in Section 2(c) hereof.
Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.
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Shelf Registration Statement: The Mandatory Shelf Registration Statement, any
Subsequent Shelf Registration Statement or any short-form registration statement filed pursuant to
Section 4(a) hereof.
Subsequent Shelf Registration Statement: As defined in Section 2(d) hereof.
Suspension Event: As defined in Section 5(a) hereof.
Suspension Notice: As defined in Section 5(b) hereof.
Trigger Date: As defined in Section 2(a) hereof.
Underwritten Offering: A sale of securities of the Company to an underwriter or
underwriters for reoffering to the public.
2. Registration Rights.
(a) Primary Mandatory Shelf Registration. As set forth in Section 4 hereof, the Company
agrees to use its best efforts to file with the Commission within forty five (45) days from the
effective date of the IPO Registration Statement as provided in Section 2(b), a registration
statement on Form S-1 or such other form under the Securities Act then available to the Company
providing for the resale pursuant to Rule 415 from time to time by the Holders of any and all
Registrable Interests (including for the avoidance of doubt any Additional Interests that are
issued prior to the effectiveness of such registration statement) (such registration statement,
including the Prospectus, amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and, if the form of registration
statement then in use pursuant to Section 4(a) so allows, all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement, the “Primary
Mandatory Shelf Registration Statement”). The Company shall use its reasonable best efforts to
cause such Primary Mandatory Shelf Registration Statement to be declared effective by the
Commission as promptly as practicable following such filing. Any Primary Mandatory Shelf
Registration Statement shall provide for the resale from time to time, and pursuant to any method
or combination of methods legally available (including, without limitation, an Underwritten
Offering or a sale through brokers or agents), by the Holders of any and all Registrable Interests.
(b) Mandatory IPO Registration. The Company agrees to use its best efforts to file with the
Commission no later than 180 days after the consummation of a Qualifying Investment Transaction, a
registration statement on Form S-1 or such other form under the Securities Act then available to
the Company in order to effect a Qualified IPO (such registration statement, including the
Prospectus, amendments and supplements to such registration statement or Prospectus, including pre-
and post-effective amendments and all exhibits thereto, the “IPO Registration Statement”). If the
Company proposes to file an IPO Registration Statement, the Company shall notify each Holder of the
filing (including notifying each Holder of the identity of the managing underwriters of such
initial public offering), within ten (10) Business Days after such filing, and afford each Holder
an opportunity to include in such IPO Registration Statement all or any part of the Registrable
Interests then held by such Holder, subject to compliance with the terms of this Agreement, the
cutback rights described below and other conditions and limitations that may be
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imposed by the managing underwriters for such offering. Each Holder desiring to include in any
such IPO Registration Statement all or part of the Registrable Interests held by such Holder shall,
within twenty (20) days after receipt of the above-described notice by the Company, so notify the
Company in writing, and in such notice shall inform the Company of the number of Registrable
Interests such Holder wishes to include in such IPO Registration Statement. Any election by any
Holder to include any Registrable Interests in such IPO Registration Statement will not affect the
inclusion of such Registrable Interests in the Mandatory Shelf Registration Statement until such
Registrable Interests have been sold under the IPO Registration Statement; provided, however, that
at such time, the Company shall have the right to remove from the Mandatory Shelf Registration
Statement the Registrable Interests sold pursuant to the IPO Registration Statement.
(i) Right to Terminate IPO Registration. At any time, the Company shall
have the right to terminate or withdraw any IPO Registration Statement referred to in
this Section 2(b) prior to its effectiveness, whether or not any Holder has elected to
include Registrable Interests in such registration; provided, however, the Company must
provide each Holder that elected to include any Registrable Interests in such IPO
Registration Statement prompt written notice of such termination. Furthermore, in the event
the IPO Registration Statement is not declared effective within ninety (90) days following
the initial filing of the IPO Registration Statement, the Company shall promptly provide a
new written notice to all Holders giving them another opportunity to elect to include
Registrable Interests in the pending IPO Registration Statement. Each Holder receiving such
notice shall have the same election rights afforded such Holder as described in clause (b)
above.
(ii) Underwriting. The Company shall notify the Holders of the identity of
the managing underwriters for the Underwritten Offering proposed under the IPO Registration
Statement as provided above. The right of any such Holder’s Registrable Interests to be
included in any IPO Registration Statement pursuant to this Section 2(b) shall be
conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion
of such Holder’s Registrable Interests in the Underwritten Offering to the extent provided
herein. All Holders proposing to distribute their Registrable Interests through such
Underwritten Offering shall enter into an underwriting agreement in customary form with the
managing underwriters selected by the Company for such underwriting and complete and execute
any questionnaires, powers of attorney, indemnities, securities escrow agreements and other
documents reasonably required under the terms of such underwriting, and furnish to the
Company such information in writing as the Company may reasonably request for inclusion in
the Registration Statement; provided, however, that no Holder shall be required to make any
representations or warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements as are customary and reasonably requested by
the underwriters or as otherwise customary in this type of transaction. Notwithstanding any
other provision of this Agreement, if the managing underwriters determine in good faith that
marketing factors require a limitation on the number of shares to be included, then the
managing underwriters may exclude shares (including Registrable Interests) from the IPO
Registration Statement and the Underwritten Offering and any Common Interests included in
the IPO Registration Statement and the Underwritten Offering shall be allocated, first, to
the Company, and second, to each of the Holders requesting inclusion of
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their Registrable Interests in such IPO Registration Statement on a pro rata basis based on the
total number of Registrable Interests then held by each such Holder which is requesting inclusion.
If any Holder disapproves of the terms of any Underwritten Offering, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten
(10) Business Days prior to the effective date of the IPO Registration Statement, provided, that
if, in the opinion of counsel for the Company, such withdrawal would necessitate a re-circulation
of the Prospectus to investors, such Holder shall be required to have delivered such written notice
at least twenty (20) Business Days prior to the effective date of the IPO Registration Statement.
Any Registrable Interests excluded or withdrawn from such Underwritten Offering shall be excluded
and withdrawn from the IPO Registration Statement but shall still be eligible to be included in the
Mandatory Shelf Registration Statement.
(iii) Hold-Back Agreement. Holders of Registrable Interests who elect to
include any such Registrable Interests for resale in the IPO Registration Statement and the
Underwritten Offering shall agree not to sell any of their Registrable Interests that are not
included in such offering during such periods as reasonably requested by the underwriters of the
Underwritten Offering contemplated thereby (but in no event for a period longer than (a) 90 days
following the effective date of the IPO Registration Statement with respect to Holders of
Registrable Interests sold in the Offering and (b) 180 days following the effective date of the IPO
Registration Statement with respect to Holders of Eligible Co-Investment Interests). All Holders,
whether or not electing to include Registrable Interests in the IPO Registration Statement shall be
bound by the provisions of Section 7.
(iv) Registrable Interests Not Sold Under IPO Registration Statement. If
(w) the Company terminates or withdraws the IPO Registration Statement prior to its effectiveness
or the distribution of all Registrable Interests, if any, registered thereunder, (x) the
underwriters exercise their right pursuant to Section 2(b)(ii) of this Agreement to exclude any
Registrable Interests from the IPO Registration Statement, (y) any Holder elects to withdraw or not
to include any Registrable Interests in the IPO Registration Statement, or (z) any Registrable
Interests are otherwise not registered under and distributed pursuant to the IPO Registration
Statement, then the Company shall file the Mandatory Shelf Registration Statement (if not
previously filed) or an additional shelf registration statement (including the Prospectus,
amendments and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement) (an “Additional
Mandatory Shelf Registration Statement) relating to any Registrable Interests not registered under
and distributed pursuant to an IPO Registration Statement shall use its best efforts to file no
later than (a) in the case of the withdrawal or abandonment of the offering pursuant to the IPO
Registration Statement, the date which is forty five (45) days after the earlier of the withdrawal
or abandonment of the offering pursuant to the IPO Registration Statement or (b) the date which is
forty five (45) days after the consummation of the offering pursuant to the IPO Registration
Statement.
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(c) Secondary Mandatory Shelf Registration. If the Company does not consummate a
Qualifying Investment Transaction prior to the Investment Transaction Deadline, liquidates the
funds remaining in the Escrow Account and such funds are subsequently distributed in accordance
with the terms of the Escrow Agreement, but the Company is not dissolved, then, as set forth in
Section 4 hereof, the Company agrees to use its best efforts to file with the Commission within one
hundred eighty (180) days from the date of such liquidation, a
registration statement on Form S-1
or such other form under the Securities Act then available to the Company providing for the resale
pursuant to Rule 415 from time to time by the Holders of any and all Registrable Interests
(including for the avoidance of doubt any Additional Interests that are issued prior to the
effectiveness of such registration statement) (such registration statement, including the
Prospectus, amendments and supplements to such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto and, if the form of registration statement then
in use pursuant to Section 4(a) so allows, all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement, the “Secondary Mandatory Shelf
Registration Statement”). The Company shall use its reasonable best efforts to cause such Secondary
Mandatory Shelf Registration Statement to be declared effective by the Commission as promptly as
practicable following such filing. Any Secondary Mandatory Shelf Registration Statement shall
provide for the resale from time to time, and pursuant to any method or combination of methods
legally available (including, without limitation, an Underwritten Offering or a sale through
brokers or agents), by the Holders of any and all Registrable Interests.
(d) Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registrable Interests pursuant to this Agreement. Each Holder participating in
a registration pursuant to this Section 2 shall bear such Holder’s proportionate share (based on
the total number of Registrable Interests sold in such registration) of all discounts and
commissions payable to underwriters or brokers and all transfer taxes and transfer fees in
connection with a registration of Registrable Interests pursuant to this Agreement and any other
expense of the Holders not specifically allocated to the Company pursuant to this Agreement
relating to the sale or disposition of such Holder’s Registrable Interests pursuant to any
Registration Statement.
(e) Subsequent Shelf Registration for Additional Interests Issued after Effectiveness of the
Mandatory Shelf Registration Statement. If any Additional Interests are issued or distributed to
Holders after the effectiveness of the Mandatory Shelf Registration Statement, or such Additional
Interests were otherwise not included in a prior Registration Statement, then the Company shall as
soon as reasonably practicable file an additional shelf registration statement (including the
Prospectus, amendments and supplements to such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement, a “Subsequent Shelf
Registration Statement”) covering such Additional Interests on behalf of the Holders thereof in the
same manner, and subject to the same provisions in this Agreement as the Mandatory Shelf
Registration Statement, provided that the provisions of Section 2(a) or 2(b) hereof will not apply
to any such Subsequent Shelf Registration Statement.
3. Rules 144 and 144A Reporting.
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With a view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Interests to the public without
registration, the Company agrees to, so long as any Holder owns any Registrable Interests:
(a) at all times after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public, use its commercially
reasonable efforts to make and keep public information available, as those terms are understood and
defined in Rule 144(c) under the Securities Act;
(b) use its commercially reasonable efforts to file with the Commission in a timely manner all
reports and other documents required to be filed by the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting requirements); and
(c) if the Company is not required to file reports and other documents under the Securities
Act and the Exchange Act, it will use its best efforts to make available other information as
required by, and so long as necessary to permit sales of Registrable Interests pursuant to, Rule
144A and in any event shall provide to each Holder a copy of:
(i) the Company’s annual consolidated financial statements (including at
least balance sheets, statements of profit and loss, statements of stockholders’ equity and
statements of cash flows) prepared in accordance with U.S. generally accepted accounting
principles, accompanied by an audit report of the Company’s independent accountants, no
later than ninety (90) days after the end of each fiscal year of the Company, and
(ii) the Company’s unaudited quarterly financial statements (including at
least balance sheets, statements of profit and loss, statements of stockholders’ equity and
statements of cash flows) prepared in a manner consistent with the preparation of the
Company’s annual financial statements, no later than forty-five (45) days after the end of
each fiscal quarter of the Company.
4. Registration Procedures.
In connection with the obligations of the Company with respect to any registration
pursuant to this Agreement, the Company shall use its reasonable best efforts to effect or cause to
be effected the registration of the Registrable Interests under the Securities Act to permit the
resale of such Registrable Interests by the Holder or Holders in accordance with the Holders’
intended method or methods of resale and distribution (which methods shall be commercially
reasonable), and the Company shall:
(a) prepare and file with the Commission, as specified in this Agreement, a Shelf
Registration Statement, which Shelf Registration Statement shall comply in all material respects as
to form with the requirements of the applicable form and include all financial statements required
by the Commission to be filed therewith, and use its reasonable best efforts to cause such Shelf
Registration Statement to become effective as promptly as practicable following such filing and to
remain effective, subject to Section 5 hereof, until the earlier
to occur of: (1) such time as all
of the Registrable Interests have been sold in accordance with the intended distribution of such
Interests,
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(2) such time as all of the Registrable Interests are eligible for sale without any volume or
manner of sale restrictions or compliance by the Company with any current public information
requirements pursuant to Rule 144, (3) there are no Registrable Interests outstanding, or (4) the
second anniversary of the initial effective date of the Shelf Registration Statement (subject to
the certain extension periods and conditions, as applicable, set forth herein); provided, however,
that if the Company has an effective Shelf Registration Statement on Form S-l under the Securities
Act and becomes eligible to use Form S-3 or such other short-form registration statement under the
Securities Act, the Company may, upon 30 Business Days’ prior written notice to all Holders of
Registrable Interests, register any Registrable Interests registered but not yet distributed under
the effective Shelf Registration Statement on such a short-form shelf registration statement (which
shall thereupon constitute a Shelf Registration Statement hereunder) and, once such short-form
Shelf Registration Statement is declared effective, de-register such Registrable Interests under
the previous Registration Statement or transfer filing fees from the previous Registration
Statement pursuant to Rule 429;
(b) subject to Section 4(i) hereof, (i) prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement effective for the period described in Section 4(a) hereof, (ii) cause
each Prospectus contained therein to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424, and (iii) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the method or methods of distribution set
forth in the “Plan of Distribution” section of the Prospectus;
(c) furnish to the Holders, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other documents as such
Holder may reasonably request, in order to facilitate the public sale or other disposition of the
Registrable Interests; the Company consents, subject to Section 5, to the lawful use of such
Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the
offering and sale of the Registrable Interests covered by any such Prospectus;
(d) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Interests by the time the applicable
Registration Statement is declared effective by the Commission under all applicable state
securities or “blue sky” laws of such domestic United States jurisdictions as the representative of
the underwriters, if any, or any Holder covered by a Registration Statement shall reasonably
request in writing, keep each such registration or qualification or exemption effective during the
period such Registration Statement is required to be kept effective pursuant to Section 4(a) and do
any and all other acts and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such Registrable Interests
covered by the Registration Statement; provided, however, that the Company shall not be required
to take any action to comply with this Section 4(d) if it would require the Company or any of its
subsidiaries to (i) qualify generally to do business in any jurisdiction or to register as a broker
or dealer in such jurisdiction where it would not otherwise be required to qualify but for this
Section 4(d) and except as may be required by the Securities Act, (ii) subject itself to taxation
in any such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
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(e) use its commercially reasonable efforts to cause all Registrable Interests covered by such
Registration Statement to be registered and approved by such other domestic governmental agencies
or authorities, if any, as may be necessary to enable the Holders thereof to consummate the
disposition of such Registrable Interests; provided, however, that the Company shall not be
required to take any action to comply with this Section 4(e) if it would require the Company or any
of its subsidiaries to (i) qualify generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for
this Section 4(e) and except as may be required by the Securities Act, (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(f) notify the representative of the underwriters, if any, and each Holder with Registrable
Interests covered by a Registration Statement promptly and, if requested by the representative of
the underwriters, if any, or any such Holder, confirm such advice in writing at the address
determined in accordance with Section 9(b), (i) when such Registration Statement has become
effective and when any post-effective amendments thereto become effective or upon the filing of a
supplement to any prospectus, (ii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of such Registration Statement or the
initiation of any proceedings for that purpose, and (iii) of the happening of any event during the
period such Registration Statement is effective as a result of which such Registration Statement or
the related Prospectus or any document incorporated by reference therein contains any untrue
statement of a material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or, in the case of the Prospectus, contains
any untrue statement of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading (which information shall be accompanied by an instruction to suspend the
use of the Registration Statement and the Prospectus (such instruction to be provided in the same
manner as a Suspension Notice) until the requisite changes have been made, at which time notice of
the end of suspension shall be delivered in the same manner as an End of Suspension Notice);
(g) during the period of time referred to in Section 4(a) above, use its commercially
reasonable efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order
enjoining or suspending the use or effectiveness of the Shelf Registration Statement or suspending
the qualification (or exemption from qualification) of any of the Registrable Interests for sale in
any jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder with Registrable Interests covered by
a Registration Statement, without charge, at least one (1) conformed copy of such Registration
Statement and any post-effective amendment or supplement thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(i) except as provided in Section 5, upon the occurrence of any event contemplated by
Section 4(f)(iii) hereof, use its commercially reasonable efforts to promptly prepare a supplement
or post-effective amendment to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Interests, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein
12
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, and, upon request, promptly furnish to each requesting Holder a
reasonable number of copies each such supplement or post-effective amendment;
(j) if requested by any Holders of Registrable Interests being sold in connection with
an Underwritten Offering, (i) as promptly as practicable incorporate in a Prospectus supplement or
post-effective amendment such material information as such Holders indicate in writing relates to
them and (ii) use its commercially reasonable efforts to make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable after the Company has
received written notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(k) use its commercially reasonable efforts to make available for inspection by one
representative appointed by the Holders of a majority of the Registrable Interests covered by a
Registration Statement and one law firm retained by each representative of such Holders during
normal business hours and upon reasonable notice, all financial and other records, pertinent
corporate documents and properties of the Company and cause the respective officers, directors and
employees of the Company to supply all information reasonably requested by any such representative
of the Holders, the representative of the underwriters or counsel thereto in connection with a
Registration Statement; provided, however, that such records, documents or information that the
Company determines, in good faith, to be confidential and notifies such representative of the
Holders, representative of the underwriters or counsel thereto are confidential shall not be
disclosed by the representative of the Holders, representative of the underwriters or counsel
thereto unless (i) the disclosure of such records, documents or information is necessary to avoid
or correct a material misstatement or omission in a Registration Statement or Prospectus, (ii) the
release of such records, documents or information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, or (iii) such records, documents or information have been
generally made available to the public by the Company; provided, further, that to the extent
practicable, the foregoing inspection and information gathering shall be coordinated on behalf of
the Holders and the other parties entitled thereto by one law firm designated by and on behalf of
the Holders and the other parties, which counsel the Company reasonably determines to be
acceptable; and provided, further that any such party shall enter into any confidentiality
agreement reasonably requested by the Company;
(1) use its commercially reasonable efforts (including, without limitation, seeking to
cure in the Company’s listing or inclusion application any deficiencies cited by the exchange or
market) to list or include all Registrable Interests on the New York Stock Exchange or the Nasdaq
Stock Market;
(m) use its commercially reasonable efforts to prepare and file in a timely manner all
documents and reports required by the Exchange Act and, to the extent the Company’s obligation to
file such reports pursuant to Section 15(d) of the Exchange Act expires prior to the expiration of
the effectiveness period of the Registration Statement as required by Section 4(a) hereof, the
Company shall register the Registrable Interests under the Exchange Act and shall maintain such
registration through the effectiveness period required by Section 4(a) hereof;
13
(n) provide a CUSIP number for all Registrable Interests, not later than the effective
date of the Registration Statement;
(o) (i) otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, (ii) make generally available to its stockholders, as soon
as reasonably practicable, earnings statements covering at least twelve (12) months that satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 (or any similar rule
promulgated under the Securities Act) thereunder, no later than ninety (90) days after the end of
each fiscal year of the Company and (iii) delay the effectiveness of any Registration Statement to
which any Holder of Registrable Interests covered by such Registration Statement shall have, based
upon the written opinion of counsel, objected on the grounds that such Registration Statement does
not comply in all material respects with the requirements of the Securities Act, such Holder having
been furnished with a copy thereof at least two (2) Business Days prior to the effectiveness
thereof, provided that the Company may request effectiveness of such Registration Statement
following such time as the Company shall have used its commercially reasonable efforts to resolve
any such issue with the objecting Holder and shall have advised the Holder in writing of its
reasonable belief that such filing complies with the requirements of the Securities Act;
(p) provide and cause to be maintained a registrar and transfer agent for all Registrable
Interests covered by any Registration Statement from and after a date not later than the effective
date of such Registration Statement;
(q) in connection with any sale or transfer of the Registrable Interests (whether or not
pursuant to a Registration Statement) that will result in the security being delivered no longer
being Registrable Interests, cooperate with the Holders and the representative of the underwriters,
if any, to facilitate the timely preparation and delivery of certificates representing the
Registrable Interests to be sold, which certificates shall not bear any transfer restrictive
legends (other than as required by the Company’s charter or applicable law) and to enable such
Registrable Interests to be in such denominations and registered in such names as the Holders may
reasonably request at least two (2) Business Days prior to any sale of the Registrable Interests;
(r) upon effectiveness of the first Registration Statement filed by the Company, the
Company will take such actions and make such filings as are necessary to effect the registration of
the Common Interests under the Exchange Act simultaneously with or as soon as practicable following
the effectiveness of the Registration Statement;
(s) in the case of an Underwritten Offering, use its commercially reasonable efforts to
furnish or cause to be furnished to each Holder (to the extent customary in transactions of this
type), addressed to the Holders of: (i) an opinion of counsel for the Company, dated the date of
each closing under the underwriting agreement, in customary form reasonably acceptable to the
Company and counsel for the Company; and (ii) a “comfort” letter, dated the effective date of such
Registration Statement and the date of each closing under the underwriting agreement, signed by the
independent public accountants who have certified the Company’s financial statements included in
such Registration Statement, covering substantially the same matters with respect to such
Registration Statement (and the Prospectus included therein) and with respect to events subsequent
to the date of such financial statements, as are customarily covered in accountants’ letters
delivered to underwriters in Underwritten Offerings of securities and such other financial
14
matters as such Holder and the underwriters may reasonably request and customarily obtained by
underwriters in Underwritten Offerings;
(t) in the case of an Underwritten Offering, use its commercially reasonable efforts to
cooperate and assist in any filings required to be made with FINRA and in the performance of any
due diligence investigation by any underwriter and its counsel (including any “qualified
independent underwriter,” if applicable) that is required to be retained in accordance with the
rules and regulations of FINRA).
The Company may require the Holders to furnish to the Company such information regarding the
proposed distribution by such Holder as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of the Registrable Interests and no
Holder shall be entitled to be named as a selling stockholder in any Registration Statement and no
Holder shall be entitled to use the Prospectus forming a part thereof if such Holder does not
provide such information to the Company. Any Holder that sells Registrable Interests pursuant to a
Registration Statement or as a selling stockholder pursuant to an Underwritten Offering shall be
required to be named as a selling stockholder in the related prospectus and to deliver a prospectus
to purchasers. Each Holder further agrees to furnish promptly to the Company in writing all
information required from time to time to make the information previously furnished by such Holder
not misleading.
Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(f)(ii) or 4(f)(iii) hereof, such Holder will immediately
discontinue disposition of Registrable Interests pursuant to a Registration Statement until such
Holder’s receipt of copies of the supplemented or amended Prospectus. If so directed by the
Company, such Holder will deliver to the Company (at the reasonable expense of the Company) all
copies in its possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Interests current at the time of receipt of such notice.
5. Black-Out Period.
(a) Subject to the provisions of this Section 5, the Company shall have the right, but
not the obligation, from time to time to suspend the use of the Registration Statement following
the effectiveness of a Registration Statement (and the filings with any international, federal or
state securities commissions), if any of the following occurs (each, a “Suspension Event”): (i) the
representative of the underwriters of an Underwritten Offering of Common Interests by the Company
has advised the Company that the sale of Interests under the Registration Statement would have a
material adverse effect on such Underwritten Offering; (ii) the Company determines in good faith
that (1) the offer or sale of any Interests under Registration Statement would materially impede,
delay or interfere with any proposed financing, offer or sale of securities, acquisition, merger,
tender offer, business combination, corporate reorganization or other significant transaction
involving the Company, (2) after the advice of counsel, the sale of Registrable Interests pursuant
to the Registration Statement would require disclosure of non-public material information not
otherwise required to be disclosed under applicable law, and (3) either (x) the Company has a bona
fide business purpose for preserving the confidentiality of the proposed transaction or
information, (y) disclosure would have a material adverse effect on the Company or its ability to
consummate the proposed transaction, or (z) the proposed transaction
15
renders the Company unable to comply with the requirements of the Commission, in each case under
circumstances that would make it impractical or inadvisable to cause the Registration Statement (or
such filings) to become effective or to promptly amend or supplement the Registration Statement on
a post-effective basis, as applicable; or (iii) the Company determines in good faith, after the
advice of counsel, that it is required by law, rule or regulation, or that it is in its best
interests, to supplement Registration Statement or file a post-effective amendment to the
Registration Statement in order to incorporate information into the Registration Statement for the
purpose of: (1) including in the Registration Statement any Prospectus required under Section
10(a)(3) of the Securities Act; (2) reflecting in the Prospectus any facts or events arising after
the effective date of Registration Statement or any misstatement or omission in the Prospectus (or
of the most recent post-effective amendment) that, individually or in the aggregate, represents a
fundamental change in the information set forth in the Prospectus; or (3) including in the
Prospectus any material information with respect to the plan of distribution not disclosed in the
Registration Statement or any material change to such information. Upon the occurrence of any
Suspension Event, the Company shall use its commercially reasonable efforts to cause the
Registration Statement to become effective or to promptly amend or supplement the Registration
Statement or to take such action as is necessary to make resumed use of the Registration Statement
compatible with the Company’s best interests, as applicable, so as to permit the Holders to resume
sales of the Registrable Interests as soon as practicable. In no event shall the Company be
permitted to suspend the use of a Registration Statement in any twelve (12) month period for more
than an aggregate of one hundred twenty (120) days, and, furthermore, not more than ninety (90)
days in any rolling 120-day period, except as a result of a refusal by the Commission to declare
any post-effective amendment to the Registration Statement effective after the Company has used all
commercially reasonable efforts to cause such post-effective amendment to be declared effective, in
which case the Company shall terminate the suspension of the use of the Registration Statement
immediately following the effective date of the post-effective amendment. If the Company elects to
suspend the effectiveness and/or use of a Registration Statement following the occurrence of a
Suspension Event, the Company, by written notice to the Holders as provided for herein (a
“Suspension Notice”), shall notify the Holders, that the effectiveness of the Registration
Statement has been suspended and shall direct the Holders to suspend sales of the Registrable
Interests pursuant to the Registration Statement until the Suspension Event has ended.
(b) If the Company gives a Suspension Notice to the Holders to suspend sales of the
Registrable Interests following a Suspension Event, the Holders shall not effect any sales of the
Registrable Interests pursuant to such Registration Statement (or such filings) at any time after
it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension
Notice (as defined below). If so directed by the Company, each Holder will deliver to the Company
(at the expense of the Company) all copies other than permanent file copies then in such Holder’s
possession of the Prospectus covering the Registrable Interests at the time of receipt of the
Suspension Notice. The Holders may recommence effecting sales of the Registrable Interests pursuant
to the Registration Statement (or such filings) upon delivery by the Company of notice that the
Suspension Event or its potential effects are no longer continuing (an “End of Suspension Notice”),
which End of Suspension Notice shall be given by the Company to the Holders and the representative
of the underwriters, if any, in the same manner as the Suspension Notice promptly following the
conclusion of any Suspension Event and its effect.
16
(c) Notwithstanding any provision herein to the contrary, if the Company shall give a
Suspension Notice pursuant to this Section 5 (or a suspension instruction pursuant to Section
4(f)), the Company agrees that it shall extend the period of time during which the applicable
Registration Statement shall be maintained effective pursuant to this Agreement by the number of
days during the period from the date of the giving of the Suspension Notice to and including the
date when Holders shall have received the End of Suspension Notice (or similar notice pursuant to
Section 4(f)) and copies of the supplemented or amended Prospectus necessary to resume sales;
provided that such period of time shall not be extended beyond the date that securities are no
longer Registrable Interests.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless (i) the Initial
Purchaser/Placement Agent and each Holder, (ii) each person, if any, who controls the Initial
Purchaser/Placement Agent or a Holder within the meaning of the Securities Act or the Exchange Act
and (iii) the respective officers, directors, partners, employees, representatives and agents of
the Initial Purchaser/Placement Agent and each Holder or any person who controls any of the
foregoing (each person referred to in clause (i), (ii) or (iii) are referred to collectively as the
“Indemnified Parties”), from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any losses, claims,
damages, judgments, expenses, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, judgments, expenses,
liabilities or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement or Prospectus including any
document incorporated by reference therein, or in any amendment or supplement thereto or in any
preliminary Prospectus relating to such Registration Statement, or arise out of, or are based upon,
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, and shall reimburse, as incurred, the
Indemnified Parties for any reasonably documented legal or reasonably documented other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however, that (i) the Company shall not
be liable in any such case to the extent that such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or Prospectus or in any amendment or supplement thereto or in
any preliminary Prospectus relating to such Registration Statement in reliance upon and in
conformity with written information pertaining to such Holder or furnished to the Company by or on
behalf of such Holder or any participating underwriter specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged untrue statement or omission made in
any preliminary Prospectus relating to such Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person
asserting any such losses, claims, damages or liabilities purchased the Interests or Additional
Interests concerned, to the extent that a prospectus relating to such Interests or Additional
Interests was required to be delivered by such Holder under the Securities Act in connection with
such purchase and any such loss, claim, damage or liability results from the fact that there was
not sent or given to such person, at or prior to the written confirmation of the sale of such
Interests or Additional Interests to such
17
person, a copy of the final Prospectus if the Company had previously furnished copies thereof to
such Holder, and (iii) in the case of a Suspension Event, the Company shall not be liable for any
loss, claim, damage or liability resulting from a sale of Interests or Additional Interests by any
Holder occurring prior to delivery by the Company of an End of Suspension Notice; provided,
further, however, that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party.
(b) In connection with any Registration Statement in which a Holder is participating and as a
condition to such participation, each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers, directors, partners, employees, representatives, agents and
investment advisers and each person, if any, who controls any of the foregoing within the meaning
of the Securities Act or the Exchange Act (the “Company Indemnified Persons”) from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact contained in such
Registration Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus relating to such Registration Statement, or arise out of or are based upon
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, but in each case only to the extent that
the untrue statement or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with written information pertaining to such Holder or furnished to the Company by
or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the Company or any Company
Indemnified Person for any reasonably documented legal or reasonably documented other expenses
reasonably incurred by the Company or such Company Indemnified Person in connection with
investigating or defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may otherwise have to
the Company or any Company Indemnified Person. Notwithstanding any other provision of this Section
6(b), the Holders shall not be required to contribute any amount in excess of the amount of the net
proceeds received by such Holders from the sale of the Interests or Additional Interests pursuant
to such Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above 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 it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who may, unless
18
in the reasonable judgment of counsel to the indemnifying party a potential conflict of interest
exists, be counsel to the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs and expenses incurred at the request of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes any unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the indemnifying party
or parties on the one hand and the indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative fault of the parties
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 Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d). Notwithstanding any other provision of
this Section 6(d), the Holders shall not be required to contribute any amount in excess of the
amount of the net proceeds received by such Holders from the sale of the Interests or Additional
Interests pursuant to such Registration Statement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph
(d), each person, if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such indemnified party and
each person, if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 shall survive the sale of the Interests or
Additional Interests pursuant to such Registration Statement and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.
7. Market Stand-off Agreement.
19
Each Holder hereby agrees that it shall not, to the extent requested by the Company or an
underwriter of securities of the Company, directly or indirectly, sell, offer to sell (including
without limitation any short sale), grant any option or otherwise transfer or dispose of any
Registrable Interests or other Common Interests of the Company or any securities convertible into
or exchangeable or exercisable for Common Interests of the Company then owned by such Holder (other
than to donees, partners or other transferees of the Holder who agree to be similarly bound) for a
period of up to 90 days (or 180 days with respect to Holders of Eligible Co-Investment Interests)
following the effective date of the IPO Registration Statement of the Company filed under the
Securities Act or up to 90 days (or 180 days with respect to Holders of Eligible Co-Investment
Interests) following the date of an Underwritten Offering by the Company pursuant to a Shelf
Registration Statement of the Company filed under the Securities Act; provided, however, that such
agreement shall not be applicable to Registrable Interests sold pursuant to such IPO Registration
Statement or such Shelf Registration Statement, as the case may be.
In order to enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the securities subject to this Section 7 and
to impose stop transfer instructions with respect to the Registrable Interests and such other
securities of each Holder (and the securities of every other Person subject to the foregoing
restriction) until the end of such period.
8. Termination of the Company’s Obligations.
The Company shall have no further obligations pursuant to this Agreement at such time as
no Registrable Interests are outstanding, provided, however, that the Company’s obligations under
Sections 3, 6 and 9 of this Agreement shall remain in full force and effect following such time.
9. Miscellaneous.
(a) Amendments and Waivers. Other than as expressly set forth herein, the provisions of
this Agreement, including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given,
without the written consent of the Company and Holders beneficially owning not less than fifty
percent (50%) of the then outstanding Registrable Interests. Notwithstanding the foregoing, a
waiver or consent to or departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of a Holder whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders may be given by such Holder; provided that the provisions of this sentence may not
be amended, modified or supplemented except in accordance with the provisions of the immediately
preceding sentence.
(b) Notices. All notices and other communications, provided for or permitted hereunder shall
be made in writing and delivered by facsimile (with receipt confirmed), overnight courier or
registered or certified mail, return receipt requested, or by telegram:
(i) if to a Holder, at the most current address given by the transfer agent and
registrar of the Common Interests to the Company;
20
(ii) if to the Company, at the offices of the Company at 0 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
(iii) if to the Initial Purchaser/Placement Agent, Deutsche Bank Securities
Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, attention: Equity Capital Markets.
(c) Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties hereto and shall
inure to the benefit of each Holder. The Company agrees that the Holders shall be third-party
beneficiaries to the agreements made hereunder by the Initial Purchaser/Placement Agent and the
Company, and each Holder shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights hereunder; provided, however,
that no Holder shall have the right to enforce such agreements unless and until such Holder
fulfills all of its obligations hereunder.
(d) Legend. In addition to any other legend that may appear on the stock certificates
evidencing the Registrable Interests, for so long as any Interests or Additional Interests remain
Registrable Interests, each certificate evidencing such Registrable Interests shall contain a
legend to the following effect: “THE INTERESTS EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
ENTITLED TO THE BENEFITS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED NOVEMBER 12, 2009.”
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(g) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
hereto that they would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(h) Entire Agreement. This Agreement, together with the Purchase Agreement, is intended
by the parties hereto as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein.
(i) Registrable Interests Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Interests is required hereunder,
21
Registrable Interests held by the Company or its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such required percentage.
(j) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the provisions of this Agreement. All references made in this
Agreement to “Section” refer to such Section of this Agreement, unless expressly stated otherwise.
(k) Attorneys’ Fees. In any action or proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover its reasonable attorneys’ fees in
addition to any other available remedy.
[Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| BOND STREET HOLDINGS LLC | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
|
|
||||||
| Title: Executive Vice Chairman | ||||||
| BOND STREET INVESTORS LLC | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
|
|
||||||
| Title: Manager | ||||||
| DEUTSCHE BANK SECURITIES INC. | ||||||
| By: | /s/ Xxxx Xxxxxxxxxx
|
|||||
| Title: Director | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
|||||
| Title: Director | ||||||
Signature Page to Registration Rights Agreement
