FIRST AMENDED AND RESTATED REGISTRATION AND INVESTOR RIGHTS AGREEMENT
Exhibit 10.1
FIRST AMENDED AND RESTATED REGISTRATION
AND INVESTOR RIGHTS AGREEMENT
AND INVESTOR RIGHTS AGREEMENT
This First Amended and Restated Registration and Investor Rights Agreement (this
“Agreement”) is made and entered into as of August 8, 2011, by and among PostRock Energy
Corporation, a Delaware corporation (together with any successor entity thereto, the
“Corporation”), White Deer Energy L.P., White Deer Energy TE L.P., White Deer Energy FI
L.P., each a Cayman Islands exempted limited partnership (together, the “White Deer
Stockholders”) and Constellation Energy Commodities Group, Inc., a Delaware corporation
(“CECG” and, together with the White Deer Stockholders, the “Stockholders”).
RECITALS
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as of September 2,
2010, between the Corporation and the White Deer Stockholders (the “White Deer Purchase
Agreement”) the Corporation agreed to issue and sell to the White Deer Stockholders and the
White Deer Stockholders agreed to purchase from the Corporation, 6,000 shares of Series A
Cumulative Redeemable Preferred Stock (the “Series A Shares”), 190,476.19 shares of Series
B Voting Preferred Stock (the “Series B Shares”) and warrants (the “White Deer
Warrants”) to purchase 19,047,619 shares of common stock, par value $0.01 per share, of the
Corporation (the “Common Stock”);
WHEREAS, to induce the White Deer Stockholders to enter into the White Deer Purchase Agreement
and to consummate the transactions contemplated therein, the Corporation agreed to provide the
registration and other rights set forth in that certain Registration Rights Agreement, dated as of
September 21, 2010 (the “Original Registration Rights Agreement”), for the benefit of the
White Deer Stockholders;
WHEREAS, pursuant to that certain Purchase Agreement, dated as of August 8, 2011, between the
Corporation, CECG and Constellation Energy Partners Holdings, LLC, a Delaware limited liability
company (the “Constellation Purchase Agreement”), the Corporation agreed to issue and sell
to CECG and CECG agreed to purchase from the Corporation, 1,000,000 shares of Common Stock (the
“Common Stock Shares”) and warrants (together with the White Deer Warrants, the
“Warrants”) to purchase 673,822 shares of Common Stock (such Warrants, together with the
Common Stock Shares, Series A Shares and Series B Shares, the “Purchased Securities”); and
WHEREAS, to induce CECG to enter into the Constellation Purchase Agreement and to consummate
the transactions contemplated therein, the Corporation and the White Deer Stockholders agreed to
provide the registration and other rights set forth in this First Amended and Restated Registration
and Investor Rights Agreement for the benefit of CECG and the White Deer Stockholders;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following meanings:
Affiliate: As to any specified Person, (i) any Person beneficially owning ten percent or more
of the outstanding voting securities of such other Person, (ii) any Person ten percent or more of
whose outstanding voting securities are beneficially owned by such other Person, or (iii) any
Person directly or indirectly controlling, controlled by or under common control with such other
Person.
Agreement: As defined in the preamble.
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 or other applicable places where such act is to occur are authorized or obligated by
applicable law, regulation or executive order to close.
Buyer: As defined in Section 8(a).
CECG: As defined in the preamble.
Closing Date: With respect to the White Deer Stockholders, September 21, 2010, the date on
which the transactions contemplated by the White Deer Purchase Agreement were consummated and, with
respect to CECG, August 8, 2011, the date on which the transactions contemplated by the
Constellation Purchase Agreement were consummated.
Constellation Purchase Agreement: As defined in the preamble.
Commission: The Securities and Exchange Commission.
Common Stock: As defined in the preamble.
Common Stock Equivalent: Any security or obligation which is by its terms convertible into or
exercisable for shares of Common Stock.
Common Stock Shares: As defined in the preamble.
Constellation Purchase Agreement: As defined in the preamble.
Corporation: As defined in the preamble.
Controlling Person: As defined in Section 6(a).
Conversion Securities: As defined in Section 9(e).
Custodian: As defined in Section 8(b).
Effectiveness Period: As defined in Section 2(a)(i).
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End of Suspension Notice: As defined in Section 5(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission pursuant thereto.
Holder: Each Stockholder or assignee thereof in accordance with Section 9(d) who is a record
owner of any Registrable Securities.
Indemnified Party: As defined in Section 6(c).
Indemnifying Party: As defined in Section 6(c).
Issuer Free Writing Prospectus: As defined in Section 4(d).
Liabilities: As defined in Section 6(a).
Lien: Any charge, mortgage, pledge, security interest, restriction, claim, lien or encumbrance
of any type whatsoever.
Liquidated Damages Amount: With respect to a Holder, an amount equal to 0.25% of the product
of the lowest exercise price per share of Common Stock underlying the Warrants held by such Holder
(the “Applicable Exercise Price”) times the number of shares of Common Stock and Common Stock
underlying such Holder’s Warrants held by such Holder per 30-day period for the first sixty (60)
days, with such payment amount increasing by an additional 0.25% of the product of the Applicable
Exercise Price times the number of shares of Common Stock and Common Stock underlying such Holder’s
Warrants held per 30-day period for each subsequent sixty (60) days, up to a maximum of 1.00% of
the product of the Applicable Exercise Price times the number of shares of Commom Stock and Common
Stock underlying the Warrants held by such Holder per 30-day period. The Liquidated Damages Amount
for any period of less than 30-days shall be prorated by multiplying the Liquidated Damages Amount
to be paid in a full 30-day period by a fraction, the numerator of which is the number of days for
which such liquidated damages are owed, and the denominator of which is 30.
Notice: As defined in Section 2(a)(i).
Original Registration Rights Agreement: As defined in the preamble.
Person: An individual, partnership, corporation, limited liability company, trust,
unincorporated organization, government or agency or political subdivision thereof, or any other
legal entity.
Piggyback Registration Statement: As defined in Section 2(b).
Proceeding: An action, claim, suit or proceeding (including without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or, to the knowledge
of the Person subject thereto, threatened.
Proportionate Percentage: The fraction, expressed as a percentage, (i) the numerator of which
is the total number of shares of Common Stock or Common Stock Equivalents held by
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CECG that also constitute Registrable Securities and (ii) the denominator of which is the
number of shares of Common Stock or Common Stock Equivalents held by all Holders that also
constitute Registrable Securities, calculated on an as converted and as exercised basis.
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.
Purchased Securities: As defined in the preamble.
Purchaser Indemnitee: As defined in Section 6(a).
Registrable Securities: The Series A Shares issued to the White Deer Stockholders pursuant to
the White Deer Purchase Agreement, the Common Stock Shares issued to CECG pursuant to the
Constellation Purchase Agreement and the shares of Common Stock that may be issued to the
Stockholders upon exercise of the Warrants issued to such Stockholders pursuant to the White Deer
Purchase Agreement and the Constellation Purchase Agreement, as applicable, and any securities
issued in respect of such Registrable Securities by reason of or in connection with any dividend,
distribution, split, purchase in any rights offering or in connection with any exchange for or
replacement of such Registrable Securities or any combination of securities, recapitalization,
merger or consolidation, or any other equity securities issued pursuant to the anti-dillution
provisions in the Warrants or any other pro rata distribution with respect to the Series A Shares
or the Common Stock until, with respect to such Registrable Security, the earliest to occur of (i)
the date on which it has been first registered effectively pursuant to the Securities Act and
disposed of in accordance with the Registration Statement relating to it, (ii) the date on which
either it is distributed to the public pursuant to Rule 144 (or any similar provision then in
effect) or, in the opinion of counsel to the Corporation, is eligible for sale pursuant to Rule 144
in a single sale without any limitation as to volume, manner of sale or current public information
with respect to the Corporation, (iii) the date on which the Holder of such Registrable Securities
no longer beneficially owns at least one percent of the total number of shares of Common Stock
outstanding or the total number of Series A Shares outstanding, or (iv) the date on which such
Registrable Security is redeemed by the Corporation.
Registration Expenses: Any and all expenses incident to the performance of or compliance by
the Corporation with this Agreement, including, without limitation: (i) all Commission, securities
exchange, listing, inclusion and filing fees, (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 Securities and the
preparation of a blue sky memorandum), (iii) all expenses 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 Securities on any securities exchange or inter-dealer quotation
system pursuant to Section 4(a)(xi) of this Agreement, (v) the fees and disbursements of counsel
for the Corporation and of the independent
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public accountants of the Corporation (including, without limitation, the expenses of any
special audit and “comfort” letters required by or incident to such performance), and (vi) all
“road show” expenses; provided, however, that Registration Expenses shall exclude brokers’ or
underwriters’ discounts and commissions, if any, fees and expenses of counsel for the Holders, and
all transfer taxes relating to the sale or disposition of Registrable Securities by a Holder.
Registration Statement: Any registration statement of the Corporation that covers the resale
of Registrable Securities pursuant to the provisions of this Agreement, 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.
Resale Registration Statement: As defined in Section 2(a)(i).
Rule 144: Rule 144, and any of its referenced paragraphs, 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 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 457: Rule 457 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.
Sale Notice: As defined in Section 8(a).
Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.
Series A Shares: As defined in the preamble.
Series B Shares: As defined in the preamble.
Stockholder or Stockholders: As defined in the preamble.
Suspension Event: As defined in Section 5(b).
Suspension Notice: As defined in Section 5(b).
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Tag-Along Notice: As defined in Section 8(a).
Underwritten Offering: A sale of securities of the Corporation to an underwriter or
underwriters for reoffering to the public.
WKSI: As defined in Section 2(b)(i).
Warrants: As defined in the preamble.
White Deer Purchase Agreement: As defined in the preamble.
White Deer Stockholders: As defined in the preamble.
White Deer Warrants: As defined in the preamble.
2. REGISTRATION RIGHTS
(a) Mandatory Resale Registration.
(i) Upon (x) the written request (a “Notice”) of one or more of the White Deer
Stockholders or their respective assigns, holding individually or collectively at least a majority
of the then outstanding Registrable Securities held by the White Deer Stockholders and their
assigns or (y) a Notice of CECG or its assigns, the Corporation shall file under the Securities
Act, within 30 days after receiving such Notice, a registration statement on an appropriate form
providing for the resale of any Registrable Securities pursuant to Rule 415 from time to time by
the Holders (a “Resale Registration Statement”). The Company shall use its commercially
reasonable efforts to cause such Resale Registration Statement to be declared effective by the
Commission within 120 days after the filing thereof, provided that sales pursuant to the Resale
Registration Statement shall be subject to the restrictions in Section 2(d)(iv) to the extent
applicable. Any Resale Registration Statement shall provide for the resale from time to time, and
pursuant to any method or combination of methods legally available by the Holders of any and all
Registrable Securities. Subject to the other provisions of this Agreement, the Corporation shall
cause the Resale Registration Statement filed pursuant to this Section 2(a)(i) 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 and that it conforms in all material respects
to the requirements of the Securities Act during the entire period beginning on the date the Resale
Registration Statement is first declared effective under the Securities Act and ending on the date
on which all Registrable Securities have ceased to be Registrable Securities (the
“Effectiveness Period”).
(ii) Amendment on Form S-3 to Registration Statement on Form S-1. If a Resale
Registration Statement filed pursuant to Section 2(a)(i) is on Form S-1, the Corporation may, at
any time it is eligible to do so, file a post-effective amendment on Form S-3 to the Resale
Registration Statement on Form S-1 for the resale of any then existing Registrable Securities or in
any such other manner as is preferred or permitted by the Commission to convert the Resale
Registration Statement on Form S-1 to a Resale Registration Statement on Form S-3. Upon the
effectiveness of the Resale Registration Statement on Form
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X-0, all references to the Resale Registration Statement in this Agreement shall then
automatically be deemed to be a reference to the Resale Registration Statement on Form S-3.
(iii) Notice to Other Holders. If the Corporation receives a Notice from any Holder
requesting that it file a Resale Registration Statement pursuant to this Section 2(a), it shall
promptly give notice thereof to the other Holders, and such other Holders may request that any
Registrable Securities held by them be included in such Resale Registration Statement. Any such
other Holder requesting that its Registrable Securities be included in such Resale Registration
Statement shall be considered a requesting Holder for purposes of Section 2(b) hereof.
(iv) CECG Maximum Registration Requests. Notwithstanding anything to the contrary in
this Agreement, the Corporation shall not be obligated to file or effect more than one Resale
Registration Statement pursuant to Section 2(a)(i)(y) upon the delivery of a Notice by CECG or its
assigns.
(b) Delay in Filing or Effectiveness of Resale Registration Statement.
(i) If the Company fails to file a Resale Registration Statement with the Commission within
the period specified in Section 2(a)(i), then each Holder requesting the filing of such
Registration Statement will be entitled to a payment, as liquidated damages and not a penalty, of
the Liquidated Damages Amount but only with respect to shares of Common Stock and Common Stock
underlying the Warrants then held by such Holder and not included in an effective Registration
Statement, for a period beginning on the day after the deadline for filing the Resale Registration
Statement and lasting until such time as the Resale Registration Statement is filed.
(ii) If a Resale Registration Statement does not become or is not declared effective within
the period specified in Section 2(a)(i), then each Holder requesting the filing of such
Registration Statement will be entitled to a payment, as liquidated damages and not a penalty, of
the Liquidated Damages Amount but only with respect to shares of Common Stock and Common Stock
underlying the Warrants then held by such Holder and not included in an effective Registration
Statement, for the period beginning on the day after such deadline for effectiveness of the Resale
Registration Statement and lasting until such time as the Resale Registration Statement is declared
effective.
(iii) The aggregate Liquidated Damages Amount payable to each Holder shall be paid to each
Holder in immediately available funds within 10 Business Days after the end of each applicable
30-day period. Any payments pursuant to this Section 2(b) shall constitute the Holders’ exclusive
remedy for such events; provided, however, if the Corporation certifies that it is unable to pay
aggregate Liquidated Damages Amount in cash or immediately available funds because such payment
would result in a breach under any of the Corporation’s credit facilities or other indebtedness
filed as exhibits to the Corporation’s reports filed under the Securities Act or the Exchange Act,
then the Corporation may pay the aggregate Liquidated Damages Amount in kind in the form of the
issuance of additional shares of Common Stock. Upon any issuance of shares of Common Stock as
liquidated damages, the Corporation shall promptly prepare and file an amendment to the Resale
Registration Statement prior to its effectiveness to include such shares of Common Stock issued as
liquidated damages as
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additional Registrable Securities. If shares of Common Stock are issued as liquidated damages
after the Resale Registration Statement has been declared effective, the Corporation shall have no
obligation to prepare and file a post-effective amendment to the Resale Registration Statement to
include such shares nor shall the Corporation be obligated in any way to file a new registration
statement for such shares; however if the Corporation is a well-known seasoned issuer (as defined
in the rules and regulations of the Commission) (a “WKSI”), the Corporation shall be obligated to
provide the Holder notice and offer to include such shares in any Piggyback Registration Statement.
All shares of Common Stock issued as Liquidated Damages Amounts shall be considered in the
calculation of any subsequent Liquidated Damages Amounts. The determination of the number of shares
of Common Stock to be issued as the aggregate Liquidated Damages Amount shall be equal to the
aggregate Liquidated Damages Amount divided by the average of the closing sale price per share for
the Common Stock (or if the Common Stock is not listed or traded on a national securities exchange,
the average of the last reported bid and ask prices per share) for each of the 10 consecutive
trading days ending on the trading day immediately preceding such date of determination.
(c) Public Offering.
(i) If the Corporation proposes to file
(A) a registration statement under the Securities Act, providing for
the public offering of Common Stock, for its own account or for the account
of a selling stockholder, for sale to the public in an Underwritten
Offering, excluding a Resale Registration Statement, a registration
statement on Form S-4 or Form S-8 promulgated under the Securities Act (or
any successor forms thereto), a registration statement for the sale of
Common Stock issued upon conversion of debt securities or any other form not
available for registering the Registrable Securities for sale to the public,
or
(B) a prospectus supplement to an effective shelf Registration
Statement, so long as the Corporation is a WKSI at such time or, whether or
not the Corporation is a WKSI, so long as the Registrable Securities were
previously included in the underlying shelf Registration Statement or are
included on an effective Resale Registration Statement, then, in each case
with respect to an Underwritten Offering of Common Stock, the Corporation
will notify each Holder of the proposed filing and afford each Holder an
opportunity to include in such Registration Statement (the “Piggyback
Registration Statement”) all or any part of the shares of Common Stock
that constitute Registrable Securities then held by such Holder that may
properly be offered on such Piggyback Registration Statement. Each Holder
desiring to include in the Piggyback Registration Statement all or part of
such shares of Common Stock held by such Holder that may be included in the
Piggyback Registration Statement shall, within ten (10) days after receipt
of the above-described notice from the Corporation in the case of a filing
of a Registration Statement and within two (2) Business Days after the day
of receipt of the above-described notice from the Corporation in the case of
a filing of a prospectus
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supplement to an effective shelf Piggyback Registration Statement with
respect to an Underwritten Offering, so notify the Corporation in writing,
and in such notice shall inform the Corporation of the number of shares of
Common Stock such Holder wishes to include in the Piggyback Registration
Statement and provide the Corporation with such information with respect to
such Holder as shall be reasonably necessary in order to assure compliance
with federal and applicable state securities laws. Any election by any
Holder to include any shares of Common Stock that constitute Registrable
Securities in the Piggyback Registration Statement will not affect the
inclusion of such Registrable Securities in the Resale Registration
Statement until such Registrable Securities have been sold under the
Piggyback Registration Statement.
(ii) Right to Terminate Registration. The Corporation shall have the right, in its
sole discretion, to terminate or withdraw the Piggyback Registration Statement initiated by it
referred to in this Section 2(c) prior to the effectiveness of such registration (or pricing in the
event of an Underwritten Offering pursuant to an effective shelf Registration Statement) whether or
not any Holder has elected to include Registrable Securities in such registration.
(iii) Resale Registration not Impacted by Piggyback Registration Statement. The
Corporation’s obligation to file the Resale Registration Statement pursuant to Section 2(a)(i)
shall not be affected by the filing or effectiveness of the Piggyback Registration Statement.
(iv) Existing Registration Statements Not Covered. For the avoidance of doubt, nothing in
this Agreement shall obligate the Corporation to take any action or refrain from taking any action
with respect to its existing Registration Statement on Form S-3 (File No. 333-173896), declared
effective by the Commission on May 13, 2011, or any amendments thereto.
(d) Underwriting.
(i) Resale Registration. In the event that one or more Holders elect to dispose of
shares of Common Stock that constitute Registrable Securities under a Resale Registration Statement
pursuant to an Underwritten Offering and such Holders reasonably anticipate gross proceeds from
such Underwritten Offering of at least $20,000,000, in the aggregate, the Corporation shall take
all such reasonable actions as are requested by the managing underwriter in order to expedite and
facilitate the registration and disposition of such shares of Common Stock, including the
Corporation causing appropriate officers of the Corporation or its Affiliates to participate in a
“road show” or similar marketing effort being conducted by such managing underwriter with respect
to such Underwritten Offering, provided that the Corporation shall not be required to cause
appropriate officers of the Corporation or its Affiliates to participate in a “road show” or
similar marketing effort being conducted by such managing underwriter with respect to such
Underwritten Offering unless such Holders reasonably anticipate gross proceeds from such
Underwritten Offering of at least $30,000,000, and provided, further, that the Corporation shall
not be required to cause appropriate officers of the Corporation or its Affiliates to participate
in a “road show” with respect to Underwritten
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Offerings under Resale Registration Statements more than once in any six-month period.
Notwithstanding the foregoing, the Corporation shall provide the cooperation provided by this
subsection (d)(i) to CECG or its assigns and its managing underwriter, including causing the
appropriate officers and directors of the Corporation or its Affiliates to participate in a “road
show” or similar marketing efforts, in a single Underwritten Offering pursuant to a Resale
Registration Statement requested by CECG if the anticipated gross proceeds of such Underwritten
Offering are at least $10,000,000.
(ii) Piggyback Registration. If the Registration Statement (or prospectus supplement
with respect to an Underwritten Offering pursuant to an effective shelf Registration Statement)
under which the Corporation gives notice under Section 2(c) is for an Underwritten Offering, the
Corporation shall so advise the Holders of shares of Common Stock that constitute Registrable
Securities. Notwithstanding any other provision of this Agreement, if the managing underwriter(s)
determine(s) in good faith that marketing factors require a limitation on the number of securities
to be included, then the managing underwriter(s) may exclude securities (including such shares of
Common Stock) from the Piggyback Registration Statement and Underwritten Offering, and any
securities included in such Piggyback Registration Statement and Underwritten Offering shall be
allocated first, to the Corporation, and second, to each of the Holders requesting inclusion of
their eligible shares of Common Stock in such Piggyback Registration Statement (on a pro rata basis
based on the total number of shares of Common Stock then held by each such Holder of Common Stock
who is requesting inclusion).
(iii) General Procedures. Any Holder’s right to include its shares of Common Stock
that constitute Registrable Securities in a Resale Registration Statement pursuant to Section
2(a)(i) or a Piggyback Registration Statement pursuant to Section 2(c)(i) shall be conditioned upon
such Holder’s participation in such underwriting and the inclusion of such Holder’s eligible shares
of Common Stock in the underwriting to the extent provided herein. All Holders proposing to
distribute their eligible shares of Common Stock through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter(s) selected 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 Corporation such information as the Corporation may reasonably
request in writing for inclusion in the Piggyback Registration Statement or Resale Registration
Statement, as the case may be; provided, however, that no Holder shall be required to make any
representations or warranties to or agreements with the Corporation or the underwriters other than
representations, warranties or agreements regarding such Holder, its holdings and such Holder’s
intended method of distribution and any other representation required by law.
(iv) Market Stand-Off. Regardless of whether a Holder elects to include shares of
Common Stock that constitute Registrable Securities in an Underwritten Offering, each Holder of
Registrable Securities hereby agrees that it shall not, to the extent requested by the Corporation
or an underwriter of securities of the Corporation, directly or indirectly sell, offer to sell
(including without limitation any short sale or hedging or similar transaction with the same
economic effect as a sale), grant any option or otherwise transfer or dispose of any Registrable
Securities or other securities of the Corporation or any securities convertible into or
exchangeable or exercisable for Common Stock of the Corporation then
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owned by such Holder (other than to Affiliates, donees, partners or members of the Holder who
agree to be similarly bound) for a period not to exceed 90 days following the effective date of a
registration statement for an Underwritten Offering or the date of a prospectus supplement filed
with the Commission with respect to the pricing of an Underwritten Offering, other than the sale or
distribution of shares of Common Stock that constitute Registrable Securities in such Underwritten
Offering; provided, however, that:
(A) such period shall in no event be greater than that which applies to
executive officers and directors of the Corporation;
(B) the Holders shall be allowed any concession or proportionate
release allowed to any of the Corporation’s officers or directors that
entered into similar agreements (with such proportion being determined by
dividing the number of shares of Common Stock being released with respect to
such officer or director by the total number of issued and outstanding
shares of Common Stock held by such officer or director);
(C) this Section 2(c)(iv) shall not apply to Underwritten Offerings
solely for the account of another selling stockholder (other than a Holder)
or in the event the Corporation is not selling at least $20,000,000 worth of
Common Stock; and
(D) in the case of CECG and its assigns, such Holder shall have
received written notice from the Corporation advising it of the imposition
of the transfer restrictions imposed by this subsection (d)(iv), which
notice shall specify the date of which such restrictions no longer apply.
In order to enforce the foregoing covenant, the Corporation shall have the right to impose
stop transfer instructions with respect to the Registrable Securities 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.
(v) Withdrawal. If any Holder disapproves of the terms of an Underwritten Offering,
such Holder may elect to withdraw therefrom by written notice to the Corporation and the managing
underwriter delivered (i) prior to the commencement of any marketing efforts for the Underwritten
Offering or (ii) at any time up to and including the time of pricing of the Underwritten Offering
if the price to the public at which the Registrable Securities are proposed to be sold is less than
95% of the average of the closing sale price per share for the Common Stock (or if the Common Stock
is not listed or traded on a national securities exchange, the average of the last reported bid and
ask prices per share) for each of the 10 consecutive trading days ending on the trading day
immediately preceding the fourth trading day prior to commencement of the marketing efforts for the
Underwritten Offering. The Holder may agree to waive this right to withdraw with the Corporation,
the underwriters or any custodial agent in any custody agreement and/or power of attorney executed
by such Holder in connection with the underwriting. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from such Registration Statement.
No such withdrawal shall affect the Corporation’s obligation to pay all Registration Expenses, as
described in Section 2(d) below.
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(vi) Selection of Underwriter. In connection with any Underwritten Offering initiated
by the Corporation, the Board of Directors of the Corporation shall have the sole right to select
the managing underwriter(s) for such Underwritten Offering. In connection with any Underwritten
Offering initiated by a Holder, the Holders the majority of whose shares are being included in such
Underwritten Offering shall have the sole right to select the managing underwriter(s) for such
Underwritten Offering. Any such underwriters shall all be nationally recognized firms.
(e) Expenses. The Corporation shall pay all Registration Expenses in connection with
the registration of the Registrable Securities pursuant to this Agreement. Each Holder
participating in a registration pursuant to this Section 2 shall pay all transfer taxes payable by
such Holder and bear such Holder’s proportionate share (based on the total number of Registrable
Securities sold in such registration) of all discounts and commissions payable to underwriters or
brokers in connection with a registration of Registrable Securities pursuant to this Agreement.
3. RULE 144 REPORTING
With a view to making available the benefits of certain rules and regulations of the
Commission that may at any time permit the sale of the Registrable Securities to the public without
registration, the Corporation agrees to:
(a) use commercially reasonable efforts to make and keep available adequate current public
information, as those terms are understood and defined in Rule 144, at all times after the Closing
Date;
(b) use commercially reasonable efforts to file with the Commission in a timely manner all
reports and other documents required to be filed by the Corporation under the Securities Act and
the Exchange Act (at any time that it is subject to such reporting requirements); and
(c) so long as a Holder owns any Registrable Securities, to furnish to the Holder promptly
upon request (i) a written statement by the Corporation as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, and (ii) such other
reports and documents of the Corporation as a Holder may reasonably request and that are not
otherwise publicly filed with the Commission or available on the Corporation’s website in availing
itself of any rule or regulation of the Commission allowing a Holder to sell any such Registrable
Securities without registration.
4. REGISTRATION PROCEDURES
(a) In connection with the obligations of the Corporation with respect to any registration
pursuant to this Agreement, (x) the Corporation shall use its commercially reasonable efforts to
effect or cause to be effected the registration of the Registrable Securities under the Securities
Act to permit the sale of such Registrable Securities by the Holder or Holders in accordance with
the Holder’s or Holders’ intended method or methods of distribution, and (y) the Corporation shall:
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(i) Prepare and file with the Commission a Registration Statement and use its commercially
reasonable efforts to cause such Registration Statement to become effective as soon as practicable
after filing and to remain effective, subject to Section 2(b)(ii) and Section 5, until there are no
Registrable Securities outstanding;
(ii) subject to Section 4(a)(vii), and Section 5, (1) prepare and file with the Commission
such amendments and post-effective amendments to each such Registration Statement as may be
necessary to keep such Registration Statement effective for the period described in Section
4(a)(i); (2) cause each Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be
adopted under the Securities Act; and (3) amend or supplement each such Registration Statement to
include the Corporation’s quarterly and annual financial information and other material
developments (to the extent the Corporation is not eligible to incorporate such information by
reference into the Registration Statement), during which time sales of the Registrable Securities
under the Registration Statement will be suspended until such amendment or supplement is filed and,
in the case of an amendment, is effective;
(iii) furnish to the Holders, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, if any, 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 Securities;
(iv) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Securities by the time the applicable
Registration Statement is declared effective by the Commission under all applicable state
securities or blue sky laws of such jurisdictions in the United States as any Holder of Registrable
Securities 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)(i) 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 Securities owned by such Holder;
provided, however, that the Corporation shall not be required to (1) 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(a)(iv) and except as may be
required by the Securities Act, (2) subject itself to taxation in any such jurisdiction, or (3)
submit to the general service of process in any such jurisdiction;
(v) notify each Holder promptly and, if requested by any Holder, confirm such advice in
writing (1) when a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (2) of the issuance by the Commission or any
state securities authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (3) of any request by the
Commission or any other federal, state or foreign governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional information, and
(4) of the happening of any event during the period a 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
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therein not misleading (which notice may be in the form of a Suspension Notice under Section
5(b));
(vi) except as provided in Section 5, use commercially reasonable efforts to obtain the
withdrawal of any order enjoining or suspending the use or effectiveness of a Registration
Statement or suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable;
(vii) except as provided in Section 5, upon the occurrence of any event contemplated by
Section 4(a)(v)(4), use its commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to a 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 Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(viii) in the case of an Underwritten Offering, use its commercially reasonable efforts to
furnish to the underwriters a signed counterpart, addressed to the underwriters, of: (1) an opinion
of counsel for the Corporation, dated the date of each closing under the underwriting agreement, in
customary form and reasonably satisfactory to the underwriters, and (2) a “comfort” letter, dated
the date of the final prospectus supplement for such offering or, if there is no prospectus
supplement, the effective date of such Registration Statement and the date of each closing under
the underwriting agreement, signed by the independent registered public accounting firm that has
certified the Corporation’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 public
offerings of securities and such other financial matters as the underwriters may reasonably
request;
(ix) in the case of an Underwritten Offering, enter into an underwriting agreement in
customary form with the underwriters and take all other action required thereunder in order to
expedite or facilitate the distribution of the Registrable Securities included in such Registration
Statement and make representations and warranties to the underwriters in such form and scope as are
customarily made by issuers to underwriters in such underwritten offerings and confirm the same to
the extent customary if and when requested;
(x) make available for inspection by representatives of the Holders and the representative of
any underwriters participating in any disposition pursuant to a Registration Statement and any
special counsel or accountants retained by such Holders or underwriters, all financial and other
records, pertinent corporate documents and properties of the Corporation and cause the respective
officers, directors and employees of the Corporation to supply all information reasonably requested
by any such representatives, the representative of the underwriters, counsel thereto or accountants
in connection with a Registration Statement; provided, however, that such records, documents or
information that the Corporation determines, in good faith, to be confidential and notifies such
representatives, representative of the
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underwriters, counsel thereto or accountants are confidential shall not be disclosed by the
representatives, representative of the underwriters, counsel thereto or accountants unless (1) the
disclosure of such records, documents or information is necessary to avoid or correct a
misstatement or omission in a Registration Statement or Prospectus, (2) the release of such
records, documents or information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (3) such records, documents or information have been generally made
available to the public;
(xi) if the Corporation is then publicly listed or traded, use its commercially reasonable
efforts to list or include shares of Common Stock that constitute Registrable Securities on the
primary national securities exchange or inter-dealer quotation system on which similar securities
issued by the Corporation are then listed or traded, or if the Corporation is not then publicly
listed but the Corporation meets the criteria for listing on such exchange or market, use its
commercially reasonable efforts to list or include the Common Stock on the New York Stock Exchange,
the Nasdaq Global Market or the Nasdaq Global Select Market (as soon as practicable), as selected
by the Corporation, including seeking to cure in its listing or inclusion application any
deficiencies cited by the exchange or market, and thereafter maintain the listing on such exchange;
(xii) prepare and file all documents and reports required by the Exchange Act and, to the
extent the Corporation’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)(i), the Corporation shall voluntarily file such reports pursuant to
Section 15(d) of the Exchange Act through the effectiveness period required by Section 4(a)(i);
(xiii) provide a CUSIP number for all Registrable Securities, not later than the effective
date of the Registration Statement;
(xiv) (1) otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and (2) make generally available to its securityholders,
as soon as reasonably practicable, earnings statements covering at least 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;
(xv) provide and cause to be maintained a registrar and transfer agent for all Registrable
Securities; and
(xvi) in connection with any sale or transfer of the Registrable Securities (whether or not
pursuant to a Registration Statement) that will result in the securities being delivered no longer
being Registrable Securities, cooperate with the Holders and the representative of the
underwriters, if any, to facilitate the timely preparation and delivery of any certificates
representing the Registrable Securities to be sold and to enable such Registrable Securities to be
in such denominations and registered in such names as the representative of the underwriters, if
any, or the Holders may request at least two (2) Business Days prior to any sale of the Registrable
Securities, provided that such Holder shall have provided the Corporation with any documents that
are reasonably requested by the Corporation.
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(b) The Corporation may require, and it shall be a condition precedent to the obligations of
the Corporation to take any action pursuant to Section 2, with respect to the Registrable
Securities of any selling Holder, that each selling Holder furnish to the Corporation such
information regarding itself, the Registrable Securities held by it and the intended method of
disposition of such securities as shall be required to effect the registration of its Registrable
Securities. In addition, if requested by the Corporation or the representative of the underwriters
of securities of the Corporation, each Holder shall provide, within ten (10) days of such request,
such information as may be required by the Corporation or such representative in connection with
the completion of any public offering of the Corporation’s securities pursuant to a Registration
Statement filed under the Securities Act. Each Holder further agrees to furnish promptly to the
Corporation in writing all information required from time to time to make the information
previously furnished by such Holder not misleading. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or implementation of this
Agreement.
(c) Each Holder agrees that, upon receipt of any notice from the Corporation of the happening
of any event of the kind described in Sections 4(a)(v)(3) or 4(a)(v)(4), such Holder will
immediately discontinue disposition of Registrable Securities pursuant to a Registration Statement
until such Holder’s receipt of the copies of the supplemented or amended Prospectus. If so directed
by the Corporation, such Holder will deliver to the Corporation (at the expense of the Corporation)
all copies in its possession, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Registrable Securities current at the time of receipt of such notice.
(d) The Corporation agrees that, unless it obtains the prior consent of Holders of a majority
of the Registrable Securities that are registered under a Registration Statement at such time or
the consent of the managing underwriter in connection with any Underwritten Offering of shares of
Common Stock that constitute Registrable Securities, it will not make any offer relating to the
Common Stock that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or
that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 (an “Issuer
Free Writing Prospectus”), required to be filed with the Commission. Each Holder represents and
agrees that, unless it obtains the prior consent of the Corporation and any such underwriter, it
will not make any offer relating to the Registrable Securities that would constitute an Issuer Free
Writing Prospectus.
5. BLACK-OUT PERIOD
(a) Anything in this Agreement to the contrary notwithstanding, subject to the provisions of
this Section 5, following the effectiveness of a Registration Statement, the Corporation may direct
the Holders in accordance with Section 5(b) to suspend sales of the Registrable Securities pursuant
to a Registration Statement for such times as the Corporation reasonably may determine is necessary
and advisable (but for no more than an aggregate of one-hundred (120) days in any rolling twelve
(12)-month period (provided that no more than sixty (60) days of such one hundred twenty (120) days
may be as a result of the following events (after excluding the days between the filing of any
post-effective amendment to a registration statement with the Commission as a result of such events
through the day such post-effective amendment is declared effective)) or for more than sixty (60)
days in any rolling 90-day period
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as a result of such events (after excluding the days between the filing of any post-effective
amendment to a registration statement with the Commission as a result of such events through the
day such post-effective amendment is declared effective), if any of the following events shall
occur: (i) a majority of the members of the Board of Directors of the Corporation shall have
determined in good faith that (1) the offer or sale of any Registrable Securities would materially
impede, delay or interfere with any proposed acquisition, merger, tender offer, business
combination, corporate reorganization, consolidation or other significant transaction involving the
Corporation, (2) after the advice of counsel, the sale of Registrable Securities pursuant to the
Registration Statement would require disclosure of material non-public information not otherwise
required to be disclosed under applicable law, and (3) either (x) the Corporation has a bona fide
business purpose for preserving the confidentiality of such transaction, (y) disclosure would have
a material adverse effect on the Corporation or the Corporation’s ability to consummate such
transaction, or (z) the proposed transaction renders the Corporation unable to comply with
Commission requirements; (ii) a majority of the members of the Board of Directors of the
Corporation shall have determined in good faith that (1) the Prospectus included in the
Registration Statement contains a material misstatement or omission as a result of an event that
has occurred subsequent to the date of such Prospectus and is continuing; and (2) the disclosure of
this material non-public information would be detrimental to the Corporation; (iii) a majority of
the members of the Board of Directors of the Corporation shall have determined in good faith, after
the advice of counsel, that it is required by law, rule or regulation to supplement the
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 included in the Registration Statement any facts or events arising
after the effective date of the Registration Statement (or of the most-recent post-effective
amendment) that, individually or in the aggregate, represents a fundamental change in the
information set forth therein, or (3) including in the Prospectus included in the Registration
Statement any material information with respect to the plan of distribution not disclosed in the
Registration Statement or any material change to such information; or (iv) a majority of the
members of the Board of Directors of the Corporation shall have determined to convert the Resale
Registration Statement on Form S-1 to a Resale Registration Statement on Form S-3. In addition,
the Corporation may direct the Holders in accordance with Section 5(b) to suspend sales of the
Registrable Securities pursuant to a Registration Statement from time to time under Section
4(a)(ii) and Section 4(c). Upon the occurrence of any such suspension under clause (iii) or (iv),
the Corporation shall use its commercially reasonable efforts to cause the Registration Statement
to become effective or to promptly amend or supplement the Registration Statement on a
post-effective basis or to take such action as is necessary to make resumed use of the Registration
Statement compatible with the Corporation’s best interests, as applicable, so as to permit the
Holders to resume sales of the Registrable Securities as soon as reasonably practicable.
(b) In the case of an event that causes the Corporation to suspend the use of a Registration
Statement (a “Suspension Event”), the Corporation shall give written notice (a
“Suspension Notice”) to the Holders to suspend sales of the Registrable Securities. The
Holders shall not effect any sales of the Registrable Securities pursuant to such Registration
Statement (or such filings) at any time after they have received a Suspension Notice from the
Corporation and prior to receipt of an End of Suspension Notice (as defined below). If so directed
by the
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Corporation, each Holder will deliver to the Corporation (at the expense of the Corporation)
all copies other than permanent file copies then in such Holder’s possession of the Prospectus
covering the Registrable Securities at the time of receipt of the Suspension Notice. The Holders
may recommence effecting sales of the Registrable Securities pursuant to the Registration Statement
(or such filings) following further notice to such effect (an “End of Suspension Notice”)
from the Corporation, which End of Suspension Notice shall be given by the Corporation to the
Holders in the manner described above promptly following the conclusion of any Suspension Event and
its effect. The Corporation shall not be required to specify in the written notice to the Holders
the nature of the event giving rise to the suspension period. Holders hereby agree to hold in
confidence any communications in response to a notice of, or the existence of any fact or any event
giving rise to the suspension period.
(c) Notwithstanding any provision herein to the contrary, if the Corporation shall give a
Suspension Notice pursuant to this Section 5, the Corporation 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 receipt by the
Holders of the Suspension Notice to and including the date of receipt by the Holders of the End of
Suspension Notice and copies of the supplemented and amended Prospectus necessary to resume sales.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Corporation agrees to indemnify and hold harmless (i) each Holder of Registrable
Securities and any underwriter (as determined in the Securities Act) for such Holder, (ii) each
Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act), any such Person described in clause (i) (any of the Persons referred to
in this clause (ii) being hereinafter referred to as a “Controlling Person”), and (iii) the
respective officers, directors, partners, members, employees, representatives and agents of any
such Person or any Controlling Person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as a “Purchaser Indemnitee”), to the fullest extent lawful, from
and against any and all losses, claims, damages, judgments, actions, reasonable out-of-pocket
expenses, and other liabilities (the “Liabilities”), including without limitation and as
incurred, reimbursement of all reasonable out-of-pocket costs of investigating, preparing, pursuing
or defending any claim or action, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of counsel to any
Purchaser Indemnitee to the extent provided herein, joint or several, directly or indirectly
related to, based upon, arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Corporation shall have furnished to such Purchaser Indemnitee any amendments or
supplements thereto), or any Issuer Free Writing Prospectus (or any amendment or supplement
thereto), or any preliminary Prospectus or any other document prepared by or with the Corporation
for use in selling the securities, or any omission or alleged omission to state therein a 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, except insofar as such Liabilities arise
out of or are based upon (i) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to any Purchaser
Indemnitee furnished to the Corporation or any underwriter in writing by such
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Purchaser Indemnitee expressly for use therein, (ii) any sales by any Holder after the
delivery by the Corporation to such Holder of a Suspension Notice and before the delivery by the
Corporation of an End of Suspension Notice, or (iii) the failure by a Purchaser Indemnitee to
deliver a Prospectus, if delivery is otherwise required. The Corporation shall notify the Holders
promptly of the institution, threat or assertion of any claim, proceeding (including any
governmental investigation), or litigation of which it shall have become aware in connection with
the matters addressed by this Agreement which involves the Corporation or a Purchaser Indemnitee.
The indemnity provided for herein shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a Holder of Registrable Securities
is participating, such Holder agrees, severally and not jointly, to indemnify and hold harmless the
Corporation, each Person who controls the Corporation within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act and the respective officers, directors,
partners, members, employees, representatives and agents of such Person or Controlling Person to
the same extent as the foregoing indemnity from the Corporation to each Purchaser Indemnitee, but
only with reference to (i) untrue statements or omissions or alleged untrue statements or omissions
made in reliance upon and in strict conformity with information relating to such Holder furnished
to the Corporation in writing by such Holder expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, any Issuer Free Writing Prospectus (or any
amendment or supplement thereto) or any preliminary Prospectus, (ii) any sales by such Holder after
the delivery by the Corporation to such Holder of a Suspension Notice and before the delivery by
the Corporation of an End of Suspension Notice, or (iii) the failure by a Purchaser Indemnitee to
deliver a Prospectus, if required. The liability of any Holder pursuant to this subsection shall in
no event exceed the gross proceeds received by such Holder from sales of Registrable Securities
giving rise to such obligations.
(c) If any Proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Person in respect of which indemnity may be sought
pursuant to subsection (a) or (b) above, such Person (the “Indemnified Party”) shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying
Party”), in writing of the commencement thereof (but the failure to so notify an Indemnifying
Party shall not relieve it from any liability which it may have under this Section 6, except to the
extent the Indemnifying Party is materially prejudiced by the failure to give notice), and the
Indemnifying Party shall be entitled to assume the defense thereof and retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may reasonably designate in such proceeding and shall pay the reasonable fees
and expenses actually incurred by such counsel related to such proceeding. Notwithstanding the
foregoing, in any such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Party, unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Party failed within a reasonable time after notice
of commencement of the action to assume the defense and employ counsel reasonably satisfactory to
the Indemnified Party, (iii) the Indemnifying Party and its counsel do not actively and vigorously
pursue the defense of such action or (iv) the named parties to any such action (including any
impleaded parties), include both such Indemnified Party
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and the Indemnifying Party, or any Affiliate of the Indemnifying Party, and such Indemnified
Party shall have been reasonably advised by counsel that, either (x) there may be one or more legal
defenses available to it which are different from or additional to those available to the
Indemnifying Party or such Affiliate of the Indemnifying Party or (y) a conflict may exist between
such Indemnified Party and the Indemnifying Party or such Affiliate of the Indemnifying Party (in
which case the Indemnifying Party shall not have the right to assume nor direct the defense of such
action on behalf of such Indemnified Party, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel), for all such Indemnified Parties, which firm shall be designated in
writing by those Indemnified Parties who sold a majority of the Registrable Securities sold by all
such Indemnified Parties and any such separate firm for the Corporation, the directors, the
officers and such control Persons of the Corporation as shall be designated in writing by the
Corporation). The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, which consent shall not be unreasonably withheld, but if
settled with such consent or if there is a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld, effect any settlement of any
pending or threatened proceeding 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 includes an unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsections (a) and (b) of this Section 6 is for
any reason held to be unavailable to an Indemnified Party in respect of any Liabilities referred to
therein (other than by reason of the exceptions provided therein) or is insufficient to hold
harmless a party indemnified thereunder, then each Indemnifying Party under such subsections, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Liabilities (i) in such proportion as is
appropriate to reflect the relative benefits of the Indemnified Party on the one hand and the
Indemnifying Party(ies) on the other in connection with the statements or omissions that resulted
in such Liabilities, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying Party(ies) and the
Indemnified Party, as well as any other relevant equitable considerations. The relative fault of
the Corporation on the one hand and any Purchaser Indemnitees on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Corporation or by such Purchaser Indemnitees and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if such Indemnified
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Parties were treated as one entity for such purpose), or by any other method of allocation
that does not take account of the equitable considerations referred to in Section 6(d) above. The
amount paid or payable by an Indemnified Party as a result of any Liabilities referred to in
Section 6(d) shall be deemed to include, subject to the limitations set forth above, any reasonable
out-of-pocket legal or other expenses actually incurred by such Indemnified Party in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall a Purchaser Indemnitee be required to contribute any amount in excess
of the amount by which proceeds received by such Purchaser Indemnitee from sales of Registrable
Securities exceeds the amount of any damages that such Purchaser Indemnitee has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 6, each Person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act) a Holder of Registrable
Securities shall have the same rights to contribution as such Holder, as the case may be, and each
Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) the Corporation, and each officer, director, partner, member, employee,
representative and agent of the Corporation shall have the same rights to contribution as the
Corporation. Any party entitled to contribution will, promptly after receipt of notice of
commencement of any Proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may have under this
Section 6 or otherwise, except to the extent that any party is materially prejudiced by the failure
to give notice. 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.
(f) The indemnity and contribution agreements contained in this Section 6 will be in addition
to any liability which the Indemnifying Parties may otherwise have to the Indemnified Parties
referred to above. The Purchaser Indemnitees’ obligations to contribute pursuant to this Section 6
are several in proportion to the respective number of securities sold by each of the Purchaser
Indemnitees hereunder and not joint.
7. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
(a) From and after the date of this Agreement, the Corporation shall not, without the prior
written consent of Holders beneficially owning not less than two-thirds (2/3) of the then
outstanding Registrable Securities held by the White Deer Stockholders and their assigns, enter
into any agreement with any holder or prospective holder of any securities of the Corporation that
would grant such holder registration rights senior to those granted to the Holders hereunder with
respect to Section 2(d)(ii).
(b) From and after the date of this Agreement, the Corporation shall not, without the prior
written consent of Holders beneficially owning not less than two-thirds (2/3) of the then
outstanding Registrable Securities held by CECG or its assigns, enter into any agreement with any
holder or prospective holder of any securities of the Corporation that would grant such holder
registration rights senior to those granted to CECG or its assigns hereunder with respect to
Section 2(d)(ii) if the entry into such agreement would disproportionately affect
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the rights of CECG or its assigns as compared to all Holders of Registrable Securities, taken
together.
8. TRANSFERS OF REGISTRABLE SECURITIES BY THE WHITE DEER STOCKHOLDERS
(a) Co-Sale Rights.
(i) If at any time the White Deer Stockholders propose to sell greater than 25% of the Common
Stock or Common Stock Equivalents held by them collectively (on an as converted or as exercised
basis) that also constitute Registrable Securities, then, the White Deer Stockholders shall
promptly deliver a written notice (the “Sale Notice”) to CECG offering CECG the option to
participate in such proposed sale. Such Sale Notice shall specify in reasonable detail the
identity of the prospective transferee (a “Buyer”) and the terms and conditions of the
sale, including the price, the form of consideration and number of Registrable Securities proposed
to be sold by the White Deer Stockholders.
(ii) CECG may, at any time prior to the 20th day after its receipt of the Sale Notice, give
written notice (each, a “Tag-Along Notice”) to the White Deer Stockholders stating that
CECG wishes to participate in such proposed sale and specifying the number of its Registrable
Securities that CECG desires to include in such proposed sale.
(iii) If CECG does not give the White Deer Stockholders a timely Tag-Along Notice with respect
to the sale proposed in the Sale Notice, the White Deer Stockholders may thereafter sell the
Registrable Securities specified in the Sale Notice on the same terms and conditions and to the
prospective Buyer set forth in the Sale Notice, or its affiliates or assignees, at any time within
180 days after the date the Sale Notice was given. Any Registrable Securities not so sold within
such 180 day period shall continue to be subject to this Section 8(a). If CECG gives the White Deer
Stockholders a timely Tag-Along Notice, then the White Deer Stockholders shall notify the
prospective Buyer of the Registrable Securities offered by CECG identified in the Tag-Along Notice.
If such prospective Buyer is unwilling or unable to acquire all Registrable Securities proposed to
be included in such sale upon such terms, then the White Deer Stockholders may elect either to
cancel such proposed sale or to include in such proposed sale CECG’s Proportionate Percentage of
the total number of Registrable Securities to be purchased by the prospective Buyer.
(b) Certain Transfer Procedures.
(i) Upon delivery of a Tag-Along Notice, CECG shall deliver to the White Deer Stockholders or
such other person (the “Custodian”) designated in the Sale Notice certificates representing
CECG’s applicable percentage of Registrable Securities, duly endorsed for transfer or accompanied
by duly executed stock powers, free and clear of all Liens other than transfer restrictions imposed
by applicable securities laws.
(ii) On or before the date set for the closing in the Sale Notice, CECG shall enter into an
agreement for the benefit of the Buyer that shall contain the following representations and
warranties and pursuant to which CECG shall indemnify the Buyer (subject to customary and
reasonable limitations on the amount and duration of such indemnity
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obligations) for all damages suffered by the Buyer as a result of breaches of or inaccuracies
in such the representations and warranties set forth in clauses (i) through (iv): (i) such
agreement has been duly authorized, executed and delivered by or on behalf of CECG, (ii) CECG has
full power, right and authority to transfer the Registrable Securities to be sold by CECG and to
enter into such agreement, (iii) immediately before the closing, CECG will have good and valid
title to the Registrable Securities to be sold by CECG free and clear of all Liens other than
transfer restrictions imposed by applicable securities laws and, upon payment for and delivery of
the Registrable Securities, the Buyer will acquire all of the rights of CECG in the Registrable
Securities to be sold by CECG and will acquire its interest in such Registrable Securities free of
any “adverse claim” (as defined in Section 8-102 of the Uniform Commercial Code) and (iv) delivery
of the Registrable Securities to be sold by CECG to the Buyer will pass title to such Registrable
Securities free and clear of any Liens other than transfer restrictions imposed by applicable
securities laws.
(iii) The Custodian shall hold such Registrable Securities and other documents in trust for
CECG pending completion or abandonment of such sale. If, within 180 days after the White Deer
Stockholders deliver the Sale Notice, the White Deer Stockholders have not completed the sale of
the applicable percentage of the Registrable Securities owned by the White Deer Stockholders and
CECG to the Buyer and another Sale Notice has not been sent to CECG, the Custodian shall return to
CECG all certificates representing the Registrable Securities.
(iv) At the closing of such sale, the Custodian shall remit to CECG the total consideration
for the Registrable Securities of CECG sold pursuant thereto, and shall furnish such other evidence
of the completion and time of completion of such sale and the terms thereof as may reasonably be
requested by CECG.
9. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Corporation of any of its obligations
under this Agreement, each Holder, in addition to being entitled to exercise all rights provided
herein, or granted by law, including recovery of damages, will be entitled to specific performance
of its rights under this Agreement. Subject to Section 6, the Corporation agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(b) Amendments and Waivers. 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 (i) the written consent of the
Corporation and White Deer Stockholders and their assigns beneficially owning not less than
two-thirds (2/3) of the then outstanding Registrable Securities held by White Deer Stockholders and
their assigns and (ii) if such amendment, modification, waiver or consent would adversely and
disproportionately affect the rights of CECG or its assigns as compared to all Holders of
Registrable Securities, taken together, the written consent of Holders beneficially owning not less
than two-thirds (2/3) of the then outstanding Registrable Securities held by CECG and its assigns.
Notwithstanding the foregoing, a waiver or consent to or departure from
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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.
(c) 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 e-mail (if an e-mail address is provided
by a Holder):
(i) if to a Stockholder, at the address given by the Stockholder on its signature page hereto
(or, if more recent, at an address contained in a written notice from the Holder); and
(ii) if to the Corporation at the offices of the Corporation at:
PostRock Energy Corporation
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties hereto. The rights to
cause the Corporation to register Registrable Securities pursuant to this Agreement may be assigned
by a Holder to a transferee or assignee of Registrable Securities, provided, however, that such
transfer shall not be effective for purposes of this Agreement until (i) the transferor shall
furnish to the Corporation written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being assigned and (ii) such
transferee shall agree to be subject to all restrictions set forth in this Agreement. Each Holder
agrees that any transferee of any Registrable Securities shall be bound by Section 4(b) and Section
7, whether or not such transferee expressly agrees to be bound.
(e) Merger, Amalgamation, Consolidation, Etc. of the Corporation. If the Corporation
is a party to any merger, amalgamation, consolidation, recapitalization, reorganization or
otherwise pursuant to which the Registrable Securities are converted into or exchanged for
securities or the right to receive securities of any other person (“Conversion
Securities”), the issuer of such Conversion Securities shall assume (in a writing delivered to
all Holders) all obligations of the Corporation hereunder. The Corporation will not effect any
merger, amalgamation, consolidation, recapitalization, reorganization or otherwise described in the
immediately preceding sentence unless the issuer of the Conversion Securities complies with this
Section 9(e).
(f) Aggregation of Registrable Securities. All Registrable Securities held or acquired
by Persons who are Affiliates of one another shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
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(g) 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.
(h) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(j) 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.
(k) Entire Agreement. This 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.
(l) Registrable Securities Held by the Corporation. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Corporation shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(m) Adjustment for Splits, etc. Wherever in this Agreement there is a reference to a
specific number of securities with respect to any Registrable Securities, then upon the occurrence
of any subdivision, combination, or security dividend of such securities, the specific number of
securities with respect to any Registrable Securities so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the outstanding securities of
such class or series by such subdivision, combination, or security dividend.
(n) Survival. The indemnification and contribution obligations under Section 6 of this
Agreement shall survive the termination of the Corporation’s obligations under Section 2 of this
Agreement.
(o) 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
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prevailing party, as determined by the court or arbitrator(s), as the case may be, shall be
entitled to recover its reasonable attorneys’ fees in addition to any other available remedy.
(p) Arbitration. Any dispute, controversy or claim arising out of or relating to this
Agreement or to the breach, termination or invalidity of this Agreement, whether arising in tort,
contract or otherwise, shall be resolved by binding arbitration pursuant to Section 11.03 of the
Constellation Purchase Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| THE COMPANY: POSTROCK ENERGY CORPORATION |
||||
| By: | /s/ Xxxxxxx X. XxXxxxxx | |||
| Name: | Xxxxxxx X. XxXxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
|||
Signature
Page 1 of 2 to
First Amended and Restated Registration and Investor Rights Agreement
First Amended and Restated Registration and Investor Rights Agreement
| STOCKHOLDERS: WHITE DEER ENERGY L.P. |
||||
| By: | Edelman & Xxxxx Energy L.P., | |||
| its general partner | ||||
| By: | Edelman & Xxxxx Energy Ltd., | |||
| its general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X Xxxxxxx | |||
| Title: | Director | |||
| Address for Notice: |
||||
| c/o White Deer Energy L.P. 000 Xxxxxxx Xxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
| and |
||||
| 000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
| WHITE DEER ENERGY TE L.P. |
||||
| By: | Edelman & Xxxxx Energy L.P., | |||
| its general partner | ||||
| By: | Edelman & Xxxxx Energy Ltd., | |||
| its general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X Xxxxxxx | |||
| Title: | Director | |||
| c/o White Deer Energy L.P. 000 Xxxxxxx Xxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
Signature
Page 2 of 2 to
First Amended and Restated Registration and Investor Rights Agreement
First Amended and Restated Registration and Investor Rights Agreement
|
and 000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
| WHITE DEER ENERGY FI L.P. |
||||
| By: | Edelman & Xxxxx Energy L.P., | |||
| its general partner | ||||
| By: | Edelman & Xxxxx Energy Ltd., | |||
| its general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X Xxxxxxx | |||
| Title: | Director | |||
| Address for Notice: |
||||
| c/o White Deer Energy L.P. 000 Xxxxxxx Xxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
| and |
||||
| 000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
| CONSTELLATION ENERGY COMMODITIES GROUP, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | President | |||
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