EX-4.1 4 d291464dex41.htm EX-4.1 Execution Version REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
Execution Version
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of November 9, 2016, by and among Smart Sand, Inc., a Delaware corporation (the “Company”), and the Persons listed on Schedule A hereto (the “Stockholders”).
ARTICLE I.
Section 1.01 Definitions. The terms set forth below are used herein as so defined:
“Adverse Effect” has the meaning given to such term in Section 2.03(b).
“Affiliate” means, with respect to a specified Person, directly or indirectly controlling, controlled by, or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning given to such term in the introductory paragraph.
“Board” means the board of directors of the Company.
“Clearlake” means Clearlake Capital Partners II (Master), L.P., a Delaware limited partnership.
“Commission” has the meaning given to such term in Section 1.02.
“Common Stock” means the common stock of the Company, par value $0.001.
“Company” has the meaning given to such term in the introductory paragraph.
“Demand Holder” shall mean Clearlake and/or Keystone, as the context requires.
“Demand Notice” means a written request from a Demand Holder to the Company to (a) prepare and file with the Commission a Registration Statement pursuant to Section 2.01 or (b) effectuate an Underwritten Offering pursuant to Section 2.02(a), as applicable.
“Effectiveness Period” has the meaning given to such term in Section 2.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Holder” means each Stockholder for so long as such Person is a record holder of any Registrable Securities, including any transferee of Registrable Securities pursuant to Section 2.10.
“Keystone” means Keystone Cranberry, LLC, a Pennsylvania limited liability company.
“Long-Form Registration Statement” means a registration statement of the Company filed with the Commission on Form S-1 (or any successor form or other appropriate form under the Securities Act) covering the Registrable Securities.
“Losses” has the meaning given to such term in Section 1.01(a) of this Agreement.
“Managing Underwriter” means, with respect to any Underwritten Offering, the lead book-running manager of such Underwritten Offering.
“Person” means any individual, corporation, partnership, voluntary association, partnership, joint venture, trust, limited liability partnership, unincorporated organization, government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
“Piggyback Notice” has the meaning given to such term in Section 2.03(a).
“Piggyback Registration” has the meaning given to such term in Section 2.03(a).
“Registrable Securities” means the shares of Common Stock owned by the Stockholders, which Registrable Securities are subject to the rights provided herein until such rights terminate pursuant to the provisions hereof, and including any such shares of Common Stock transferred along with an assignment of rights hereunder pursuant to Section 2.10.
“Registration Expenses” has the meaning given to such term in Section 2.07(b).
“Registration Statement” has the meaning given to such term in Section 2.01.
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Expenses” has the meaning given to such term in Section 2.07(b).
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a registration statement.
“Shelf Registration Statement” has the meaning given to such term in Section 2.01(a).
“Short-Form Registration Statement” means a registration statement of the Company filed with the Commission on Form S-3 (or any successor form or other appropriate form under the Securities Act).
“Stockholders” has the meaning given to such term in the introductory paragraph.
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“Underwritten Offering” means an offering in which shares of Common Stock are sold to an underwriter on a firm commitment basis for reoffering to the public or an offering that is a “bought deal” with one or more investment banks.
ARTICLE II.
Section 2.01 Demand Registration.
(a) Upon receipt of a written request from a Demand Holder at any time following the 180th day after the date hereof, the Company shall prepare and file with the Commission a registration statement under the Securities Act (a “Registration Statement”) providing for the resale of the Registrable Securities, which may, at the option of the Demand Holder, be a registration statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”). Within five (5) business days of the receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders, and the Holders shall have three (3) business days following receipt of such notice of the Demand Notice from the Company to request in writing (including by electronic mail) to the Company to be included as a seller of Registrable Securities in such Registration Statement. The Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. The Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement (including those elected to be included in such Registration Statement following notice of a Demand Notice from the Company pursuant to this Section 2.01). The Company shall use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material
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respects with all applicable requirements of the Securities Act and shall not contain an 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. As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (2) business days of such date, the Company shall provide the Holders with written notice of the effectiveness of the Registration Statement. The Company shall only be obligated to effect two (2) demand registrations on a Long-Form Registration Statement under this Section 2.01 in any twelve-month period; provided, however, that a registration on a Long-Form Registration Statement shall not count as a registration under this Section 2.01 unless it has become effective. The Company shall be obligated to effect an unlimited number of registrations under this Section 2.01 on Short-Form Registration Statements. The Company shall not be obligated to file more than one (1) Registration Statement (including Short-Form Registration Statements) in response to requests pursuant to this Section 2.01 within 90 days after the effective date of any Registration Statement filed by the Company in response to requests pursuant to this Section 2.01. Once a Holder’s Registrable Securities become eligible for resale without restriction and without the need for current public information pursuant to any section of Rule 144 (or any similar provision then in effect) under the Securities Act, assuming the Holder of such Registrable Securities is not an affiliate (as defined in Rule 144(a)(1) under the Securities Act) of the Company, then such Holder may, at its option, at any time, request that the Company take such steps as are reasonably necessary to deregister such Holder’s Registrable Securities. In connection with such request, such Holder’s rights under this Agreement shall all be terminated, including without limitation the right to demand an Underwritten Offering and the right to participate in a Piggyback Registration, and such Holder, to the extent such Holder beneficially owns less than 0.5% of the Common Stock then outstanding, shall no longer be subject to any obligations under this Agreement, including without limitation the obligation to enter into letter agreements with underwriters pursuant to Section 2.13.
Section 2.02 Underwritten Offerings.
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underwriting agreement, in customary form, with the Managing Underwriter or underwriters, which shall include, among other provisions, such representations, covenants, indemnities and other rights and obligations as are customary and indemnities to the effect provided in Section 2.08 and taking all reasonable actions as requested by the Managing Underwriter or underwriters to expedite or facilitate the disposition of such Registrable Securities, including causing its management to participate in a “roadshow” or similar marketing efforts.
(e) Priority on Underwritten Offerings Pursuant to a Demand Notice. If in connection with an Underwritten Offering pursuant to Section 2.02, the Managing Underwriter shall advise the Company that, in its reasonable opinion, the number of securities requested and otherwise proposed to be included in such Underwritten Offering exceeds the number which can be sold in such offering without an adverse effect on the price, timing or distribution of the securities to be offered (an “Adverse Effect”), then in the case of any such registration pursuant to Section 2.02, the Company shall include in such Underwritten Offering prior to the inclusion of any securities that are not Registrable Securities, the number of Registrable Securities that
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such Managing Underwriter advises the Company can be sold without having such Adverse Effect, pro rata among the Holders that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner).
Section 2.03 Piggyback Rights.
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Underwritten Offering pro rata among the Holders that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), and (iii) third, if any, the number of other securities that, in the opinion of such Managing Underwriter, can be sold without having such Adverse Effect In connection with a secondary registration on behalf of holders of the Company’s securities (other than the Holders pursuant to Section 2.02), such number shall be allocated to the securities requested to be sold by the holders initially requesting such registration and the Registrable Securities requested to be included in such registration, pro rata among such persons based on the relative number of securities then held by each such person (provided that any securities thereby allocated to a person that exceed such person’s request shall be reallocated among the remaining requesting persons in like manner).
(a) prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement;
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(b) if a prospectus supplement, offering memorandum or similar marketing document will be used in connection with the marketing of an Underwritten Offering and the Managing Underwriter notifies the Company in writing that, in the sole judgment of such Managing Underwriter, inclusion of detailed information in such prospectus supplement is of material importance to the success of such offering, the Company shall use its commercially reasonable efforts to include such information in such prospectus supplement, offering memorandum or similar marketing document;
(c) furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing the Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission) or use of a similar marketing instrument, and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing the Registration Statement or such other registration statement or supplement or amendment thereto or use of a similar marketing instrument, and (ii) such number of copies of the Registration Statement or such other registration statement and the prospectus included therein and any supplements and amendments thereto or similar marketing instrument as such Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by the Registration Statement or other registration statement;
(d) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities covered by the Registration Statement under the securities or blue sky laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter, shall reasonably request; provided, however, that the Company will not be required to qualify generally to transact business in any jurisdiction where it is not then required to so qualify or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject;
(e) promptly notify each Selling Holder and each underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the filing of the Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement or any other registration statement contemplated by this Agreement or any post-effective amendment thereto, when the same has become effective; and (ii) any written comments from the Commission with respect to any filing referred to in clause (i) and any written request by the Commission for amendments or supplements to the Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement thereto;
(f) immediately notify each Selling Holder and/or the underwriters, at any time when a prospectus is required to be delivered under the Securities Act, of: (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in such Registration Statement or any other registration statement contemplated by this Agreement or
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any post-effective amendment thereto, as then in effect, includes an 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 (in the case of any prospectus contained therein, in the light of the circumstances under which a statement is made); (ii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (iii) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, the Company agrees to, as promptly as practicable, amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an 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 in the light of the circumstances then existing and to take such other reasonable action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(g) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to any offering of Registrable Securities;
(h) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel for the Company dated the date of the closing under the underwriting agreement or purchase agreement, as applicable and (ii) a “cold comfort” letter, dated the pricing date of such offering (to the extent available) and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference into the applicable registration statement, and each of the opinion and the “cold comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as have been customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters or placement agents in public offerings or private placements, as applicable, of securities by the Company and such other matters as the underwriters or Selling Holders, as applicable, may reasonably request;
(i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(j) make available to the appropriate representatives of the underwriters or Selling Holders, as applicable, access to such information and Company personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act;
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(k) cause all Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Company are then listed;
(l) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holders to consummate the disposition of the Registrable Securities;
(m) provide a transfer agent and registrar for all Registrable Securities covered by the Registration Statement or any other registration statement contemplated by this Agreement not later than the effective date of such registration statement;
(n) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of the Registrable Securities;
(o) at the request of the holders of a majority of the Registrable Securities covered by a Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an Automatic Shelf Registration Statement, any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the holders of a majority of the Registrable Securities to effect such Shelf Offering; and
(p) if the Company files any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities other than the holders of Registrable Securities, and the holders of Registrable Securities do not request that their Registrable Securities be included in such Shelf Registration Statement, the Company agrees that, at the request of the holders of a majority of the Registrable Securities, it shall include in such Automatic Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act in order to ensure that the holders of Registrable Securities may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
Each Selling Holder, upon receipt of notice from the Company of the happening of any event of the kind described in subsection (f) of this Section 2.05, shall forthwith discontinue disposition of the Registrable Securities by means of a prospectus or prospectus supplement until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by subsection (f) of this Section 2.05 or until it is advised in writing by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings incorporated by reference in the prospectus.
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(ii) No Person may participate in any Underwritten Offering unless such Person (i) 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 (including, without limitation, pursuant to any over-allotment or “green shoe” option requested by the underwriters; provided that no holder of Registrable Securities shall be required to sell more than the number of Registrable Securities such Holder has requested to include) and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. Each holder of Registrable Securities shall execute and deliver such other agreements as may be reasonably requested by the Company and the Managing Underwriter(s) that are consistent with such Holder’s obligations hereunder.
(iii) In the case of an Underwritten Offering in response to a Demand Notice, the price, underwriting discount and other financial terms of the related underwriting agreement for the Registrable Securities shall be determined by the Demand Holder holding the majority of the Registrable Securities included in such Underwritten Offering.
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chosen by the Demand Holder holding a majority of the Registrable Securities included in such registration or participating in such offering and disbursements of each additional counsel retained by any Holder of Registrable Securities for the purpose of rendering a legal opinion on behalf of such Holder in connection with any Underwritten Offering.
(a) By the Company. In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company will indemnify and hold harmless each Selling Holder participating therein, its directors, officers, employees and agents, and each Person, if any, who controls such Selling Holder within the meaning of the Securities Act and the Exchange Act, and its directors, officers, employees or agents, against any losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or several, to which such Selling Holder, director, officer, employee, agent or controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in the Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free writing prospectus or final prospectus contained therein, or any amendment or supplement thereof, 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 (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and will reimburse each such Selling Holder, its directors, officers, employee and agents, and each such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings as such expenses are incurred; provided, however, that the Company will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Selling Holder, its directors, officers, employees and agents or such controlling Person in writing specifically for use in the Registration Statement or any other registration statement contemplated by this Agreement, or prospectus or any amendment or supplement thereto, as applicable. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder or any such directors, officers, employees agents or controlling Person, and shall survive the transfer of such securities by such Selling Holder.
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following an offering giving rise to such indemnification. The relative fault of the indemnifying party on the one hand and the indemnified party 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 has been made by, or relates to, information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to herein. The amount paid by an indemnified party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such indemnified party in connection with investigating or defending any Loss that is the subject of this paragraph. 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 is not guilty of fraudulent misrepresentation.
(a) make and keep public information regarding the Company available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after the date hereof;
(b) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act at all times from and after the date hereof; and
(c) so long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed as such Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing such Holder to sell any such securities without registration.
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Registrable Securities; provided, however, that (a) unless such transferee or assignee is an Affiliate of the Holder, each such transferee or assignee holds Registrable Securities representing at least $2.0 million of Registrable Securities (based on the last sales price of the shares of Common Stock as of the trading date prior to the time of such transfer or assignment), subject to adjustment pursuant to Section 3.04, (b) the Company is given written notice prior to any said transfer or assignment, stating the name and address of each such transferee or assignee and identifying the Registrable Securities with respect to which such registration rights are being transferred or assigned and (c) each such transferee or assignee agrees to be bound by this Agreement.
In the event any Demand Holder elects to transfer or assigns its rights hereunder as a Demand Holder to a transferee or assignee of all or a portion of its Registrable Securities, such Demand Holder’s Registrable Securities and the Registrable Securities so transferred or assigned shall be aggregated for purposes of exercising the rights of any Demand Holder hereunder and any rights exercisable by Clearlake or Keystone as a Demand Holder hereunder will thereafter be exercisable by the holder of a majority of the Registrable Securities held by Clearlake and its assignees or transferees in aggregate or by the holder of a majority of the Registrable Securities held by Keystone and its assignees or transferees in aggregate, as applicable.
(ii) The Company (i) shall not file any registration statement for a Public Offering or cause any such registration statement to become effective, or effect any public sale or distribution of its equity securities, or any securities, options or rights convertible into or exchangeable or exercisable for such securities during any Holdback Period, (ii) (A) shall use its
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best efforts to cause each holder of at least one percent (1%) (on a fully-diluted basis) of its Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a Public Offering) to agree not to effect any of the foregoing transaction during any Holdback Period and (B) shall cause each of its directors and executive officers to agree not to effect any such transactions during any Holdback Period, in each case, except as part of such underwritten registration, if otherwise permitted, unless the underwriters managing the Public Offering otherwise agree in writing.
ARTICLE III.
(a) if to Clearlake:
Clearlake Capital Partners II (Master), L.P.
c/o Clearlake Capital Group
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx and Xxxx Xxxxxxxx
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 X. XxXxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxx Xxxx and Xxxxx Xxxxxx
(b) if to Keystone:
Keystone Cranberry, LLC
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
Fox Rothschild LLP
Princeton Pike Corporate Center
000 Xxxxx Xxxxx, Xxxxxxxx 0
Xxxxxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx
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(c) if to any Holder, or except as permitted by Section 2.10, if to a transferee of any Holder, to the contact information listed on Schedule A hereto; and
(d) if to the Company:
Smart Sand, Inc.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxxxxxx
Email: xxxxxxxxxx@xxxxxxxxx.xxx
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
All such notices and communications shall be deemed to have been received at the time delivered by hand, if personally delivered; when receipt acknowledged, if sent via facsimile or sent via electronic mail; and when actually received, if sent by courier service or any other means.
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of the parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such party from pursuing any other rights and remedies at law or in equity that such party may have.
Section 3.08 Governing Law. The laws of the State of Delaware shall govern this Agreement.
(ii) Subject to the prior written consent of the holders of a majority of the Registrable Securities, the Company may permit any Person who acquires Common Stock or rights to acquire Common Stock from the Company after the date of this Agreement (the “Acquired Common”) to become a party to this Agreement and to succeed to all of the rights and obligations of a holder of Registrable Securities under this Agreement, if applicable, by obtaining an executed joinder to this Agreement from such Person in the form of Exhibit A attached hereto (a “Joinder”). Upon the execution and delivery of a Joinder by such Person, the Acquired Common Stock shall constitute Registrable Securities and such Person shall be a holder of Registrable Securities under this Agreement with respect to the Acquired Common, and the Company shall add such Person’s name and address to Schedule A hereto and circulate such information to the holders of Registrable Securities.
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[Signature page follows]
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SMART SAND, INC. | ||
By: | /s/ Xxx Xxxxxxxxx | |
Name: Xxx Xxxxxxxxx | ||
Title: Chief Financial Officer |
Signature Page to Registration Rights Agreement
KEYSTONE CRANBERRY, LLC | ||
By: | /s/ Xxxxxxx X. Xxxxx | |
Name: Xxxxxxx X. Xxxxx | ||
Title: Managing Member |
Signature Page to Registration Rights Agreement
CLEARLAKE CAPITAL PARTNERS II (MASTER), L.P. | ||
By: Clearlake Capital Partners II GP, L.P., its General Partner | ||
By: Clearlake Capital Partners, LLC, its General Partner | ||
By: | /s/ Xxxx X. Xxxxxxxxx | |
Name: Xxxx X. Xxxxxxxxx | ||
Title: Co-President |
Signature Page to Registration Rights Agreement
Xxxxx Xxxxxxxx | ||
By: | /s/ Xxxxx Xxxxxxxx |
Signature Page to Registration Rights Agreement
Xxxxxx Xxxxxxx | ||
By: | /s/ Xxxxxx Xxxxxxx |
Signature Page to Registration Rights Agreement
Speaker Children 2012 Irrevocable Trusts | ||
By: | /s/ Xxxxxx Speaker | |
Name: Xxxxxx Speaker | ||
Title: Trustee |
Signature Page to Registration Rights Agreement
BAMK Associates, LLC | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: Xxxxxx Xxxxxx | ||
Title: Sole Member |
Signature Page to Registration Rights Agreement
Xxxxx Trust U/A/D dated January 26, 2001 | ||
By: | /s/ F. Xxxxxx Xxxxx | |
Name: F. Xxxxxx Xxxxx | ||
Title: Trustee |
Signature Page to Registration Rights Agreement
SCHEDULE A
1. | Clearlake Capital Partners II (Master), L.P., a Delaware limited partnership |
2. | Keystone Cranberry, LLC, a Pennsylvania limited liability company |
3. | Xxxxx Xxxxxxxx |
4. | Xxxxxx Xxxxxxx |
5. | Speaker Children 2012 Irrevocable Trusts |
6. | BAMK Associates, LLC, a Pennsylvania limited liability company |
7. | Xxxxxx Trust U/A/D dated January 26, 2001 |
EXHIBIT A
JOINDER TO REGISTRATION RIGHTS AGREEMENT
The undersigned is executing and delivering this Joinder pursuant to the Registration Rights Agreement dated as of November 9, 2016 (as the same may hereafter be amended, the “Registration Rights Agreement”), by and among Smart Sand, Inc., a Delaware corporation (the “Company”) and the Persons listed on Schedule A thereto.
By executing and delivering this Joinder to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Registration Rights Agreement as a holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s shares of Common Stock shall be included as Registrable Securities under the Registration Rights Agreement.
Accordingly, the undersigned has executed and delivered this Joinder as of the day of , .
Signature of Stockholder | ||
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Print Name of Stockholder | ||
Address: |
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Agreed and Accepted as of | ||
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SMART SAND, INC., |
By: |
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Its: |
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A-1