REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
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This
Registration Rights Agreement (this “Agreement”) is
made and entered into as of January 30, 2017, by and between
Meridian Waste Solutions, Inc., a New York corporation (the
“Company”) and
Xxxxxxx, Xxxxx & Co., a New York limited partnership (the
“Purchaser”).
RECITALS
WHEREAS, the Company, the Purchaser and
certain stockholders of the Company were parties to that certain
Amended and Restated Purchase Warrant for Common Shares and Series
C Shares, dated as of July 19, 2016 (the “Warrant”);
WHEREAS, the Company has filed with the
Commission on September 9, 2016 a Registration Statement on Form
S-1 for an underwritten offering of Meridian’s common stock
(the “Offering”);
WHEREAS, in connection with the
Offering, the Company and the Purchaser entered into that certain
Warrant Cancellation and Stock Issuance Agreement on December 9,
2016, as amended by that certain Amended and Restated Warrant
Cancellation and Stock Issuance Agreement between the Company and
the Purchaser dated January 9, 2017 (the “Warrant Cancellation Agreement”),
pursuant to which the Company and the Purchaser agreed, subject to
the closing of a Qualified Offering and the terms of the Warrant
Cancellation Agreement, (i) to cancel the Warrant in accordance
with and subject to the terms and conditions contained in the
Warrant Cancellation Agreement, (ii) in exchange for the Purchaser
agreeing to so terminate its rights under the Warrant, to issue
Common Shares to the Purchaser and (iii) to enter into this
Agreement to provide the Purchaser with registration rights and
certain other rights; and
WHEREAS, effective January 30, 2017, the
Offering closed, meeting the definition of Qualified Offering,
resulting in the effectiveness of the Warrant Cancellation
Agreement, pursuant to which (i) the Warrant was cancelled and (ii)
the Company issued to the Purchaser 421,326 shares of Common Stock;
and
WHEREAS, in connection with the
consummation of the transactions contemplated by the Warrant
Cancellation Agreement, the parties hereto desire to enter into
this Agreement in order to grant registration rights and certain
other rights to the Holders as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing and the mutual and dependent covenants hereinafter set
forth, the parties hereto agree as follows:
1.1 Demand Registration
Rights. At any time after the
expiration of the Lock-Up Period, so long as the Holder holds
Shares anticipated to have an aggregate sale price (net
underwriting discounts and commissions, if any) in excess of
$500,000, the Holder (or, for the avoidance of doubt, if there are
multiple Holders, then the Holder or Holders constituting the
Requisite Holders) shall have the right to require the Company to
file registration statements, including a shelf registration
statement (if the Company is eligible at such time to utilize a
shelf registration for the Shares), and if the Company is a
well-known seasoned issuer, as defined in Rule 405 under the
Securities Act, an automatic shelf registration statement, on Form
S-3 or any successor form under the Securities Act covering all or
any part of the Shares, by delivering a written request therefor to
the Company. Such request shall state the number of Shares to be
disposed of and the intended method of disposition of such shares
by the Holder. In the event there are multiple Holders, the Company
shall give notice to all other Holders of the receipt of a request
for registration pursuant to this Section
1.1
and such Holders shall then have
thirty (30) days to notify the Company in writing of their desire
to participate in the registration. The Company shall use its
commercially reasonable best efforts to effect promptly the
registration statement registering all shares on Form S-3 (or a
comparable successor form) to the extent requested by the Holder,
but in any event shall cause the registration statement to become
effective within ninety (90) days after the date of the request by
the Holder (or 120 days in the event of a “full review”
by the Commission). The Company shall use its commercially
reasonable best efforts to keep such registration statement
effective until the earlier of one hundred twenty (120) days or
until the Holder has completed the distribution described in such
registration statement. Notwithstanding the forgoing, to the extent
that registration on Form S-3 is not available to the Holder under
this Section
1.1, the Company shall use commercially reasonable
efforts to effect such registration on Form S-1 under the
Securities Act.
(a) If,
at any time after the expiration of the Lock-Up Period, the Company
proposes to register any of its Equity Securities under the
Securities Act in connection with an underwritten public offering
of such shares of such Equity Securities, then the Company will
promptly give notice to the Holder of its intention to do so. Upon
the request of any Holder received within ten (10) days after
receipt of any such notice from the Company, the Company will, in
each instance, cause such Holder’s Shares to be registered
under the Securities Act and registered or qualified, as the case
may be, under any state securities laws; provided,
however,
that the obligation to give such notice and to cause such
registration shall not apply to any registration (a) on Form S-8
(or any successor form), (b) of solely a dividend reinvestment plan
or (c) for the sole purpose of offering registered securities to
another Person in connection with the acquisition of assets or
Equity Securities of such Person or in connection with a merger,
consolidation, combination or similar transaction with such
Person.
(b) In
connection with any underwritten offering of securities on behalf
of the Company or any Stockholder, the Company shall not be
required to include any Shares held by a Holder unless the Holder
agrees to the reasonable and customary terms of the
underwriting; provided,
however,
that (i) such Holder shall not be required to make any
representation other than that it is the owner of the applicable
Shares that are being included in the offering and that it has full
power and authority to transfer them pursuant such offering, and
(ii) the total indemnification or other liability of such Holder
thereunder shall be limited to the aggregate net cash proceeds
received by such Holder from the sale of such Shares in such
offering.
(c) The
Company will include in any registration effected pursuant to
this Section
1.2
(i) first, securities offered to be
sold by the Company and by any holder of demand registration rights
that is exercising such rights in connection with such
registration, (ii) second, the Piggyback Shares, in each case pro
rata based on the number of Shares held thereby (in such quantity
as will not, in the written opinion of the underwriters, jeopardize
the success of the offering), and (iii) third, any other securities
requested to be included in such registration (in such quantity as
will not, in the written opinion of the underwriters, jeopardize
the success of the offering).
1.3 Deemed
Underwriter. The Company agrees
that, if a Holder or any of its Affiliates could reasonably be
deemed to be an “underwriter,” as defined in Section
2(a)(11) of the Securities Act, in connection with the registration
of any Equity Securities of any Holder or any of its Affiliates
(any such registration statement or amendment or supplement filed
in connection with such registration, a “Deemed Underwriter Registration
Statement”), then the
Company will cooperate with such Holder or Affiliate in allowing
such Holder or Affiliate to conduct reasonable and customary
“underwriter’s due diligence” with respect to the
Company and satisfy its obligations in respect thereof. In
addition, at a Holder’s request, the Company will furnish to
such Holder, on the date of the effectiveness of any Deemed
Underwriter Registration Statement and thereafter from time to time
on such dates as such Holder may reasonably request a letter, dated
such date, from the Company’s independent certified public
accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to such Holder, and an
opinion, dated as of such date, of counsel representing the Company
for purposes of such Deemed Underwriter Registration Statement, in
form, scope and substance as is customarily given in an
underwritten public offering, including a standard
“10b-5” statement for such offering, addressed to such
Holder. The Company will also permit legal counsel to the
applicable Holder to review and comment upon any such Deemed
Underwriter Registration Statement at least ten (10) Business Days
prior to its filing with the Commission and all amendments and
supplements to any such Deemed Underwriter Registration Statement
within a reasonable number of days prior to their filing with the
Commission and not file any Deemed Underwriter Registration
Statement or amendment or supplement thereto in a form to which
such Holder’s legal counsel reasonably
objects.
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1.4 Expenses.
The Company will pay all Registration Expenses in connection with
all registrations (which, for purposes of this section, shall
include any qualifications, notifications and exemptions) under
this section. “Registration
Expenses” means all
reasonable expenses incident to the Company’s performance of
or compliance with this Section
1, including all registration and filing fees
(including fees of the Commission and a national stock exchange or
national securities market), all fees and expenses of complying
with state securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any
special audits or “cold comfort” letters in
underwritten offerings required by or incident to such performance
and compliance, the reasonable fees and disbursements of
Holder’s Counsel (as defined below), not to exceed $25,000 in
the aggregate (or such greater amount with the Company’s
consent, which consent shall not be unreasonably withheld,
conditioned or delayed), and any accountants retained by the
Holders with respect to any Shares being registered, premiums and
other costs of policies of insurance against liabilities arising
out of the public offering of such securities and any fees and
disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any, provided,
however,
that the Company shall not be required to pay for any expenses of
the Holders for any registration proceeding pursuant to
Section
1
if the registration request is
subsequently withdrawn at the request of the Holders (in which case
all selling Holders shall bear such expenses pro rata based upon
the number of Shares that were to be included in the withdrawn
registration), unless the Requisite Holders agree to forfeit their
right to one registration pursuant to Section
1. All underwriting discounts, selling commissions,
and stock transfer taxes and other non-Registration Expenses
applicable to the sale of the Shares of the Holders shall be borne
and paid by the Holders pro rata on the basis of the number of
Shares registered on their behalf.
1.5 Obligations
of the Company. Whenever required under this Section
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to effect the registration of any
Shares, the Company shall, as expeditiously as reasonably
possible:
(a) prepare
and file with the Commission a registration statement with respect
to such Shares and use commercially reasonable efforts to cause
such registration statement to become effective and, unless the
Holders of a majority of the Shares registered thereunder notify
the Company otherwise, to keep such registration statement
effective for a period of up to one hundred twenty (120) days or,
if earlier, until the distribution contemplated in the registration
statement has been completed; provided,
that,
the Company shall furnish, at least five (5) Business Days before
filing such registration statement, a prospectus relating thereto
or any amendments or supplements relating to such a registration
statement or prospectus, to counsel selected by the Holder (the
“Holder’s
Counsel”), copies of all
such documents proposed to be filed for such counsel’s review
and comment (it being understood that such five (5) Business Day
period need not apply to successive drafts of the same document
proposed to be filed so long as such successive drafts are supplied
to such counsel in advance of the proposed filing by a period of
time that is customary and reasonable under the circumstances) and
not file any such registration statement, prospectus or amendment
or supplement thereto in a form to which Holder’s Counsel
reasonably objects;
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(b) prepare
and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement and to make public any material non-public information
provided to the Purchaser Group during the effective period of such
registration statement;
(c) notify
in writing the Holder’s Counsel promptly (x) of the
receipt by the Company of any notification with respect to any
comments by the Commission with respect to such registration
statement or prospectus or any amendment or supplement thereto or
any request by the Commission for the amending or supplementing
thereof or for additional information with respect thereto,
(y) of the receipt by the Company of any notification with
respect to the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation
of any action threatening any proceeding for that purpose and
(z) of the receipt by the Company of any notification with
respect to the suspension of the qualification of such Shares for
sale in any jurisdiction or the initiation of any action
threatening the qualification of such Shares for sale in any
jurisdiction;
(d) furnish
to each Holder of Shares covered by such registration such numbers
of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act and such
other documents as such Holder may reasonably request in order to
facilitate the disposition of the Shares owned
thereby;
(e) use
commercially reasonable efforts to register, exempt from
registration, and/or to qualify the securities covered by such
registration statement under such other securities or blue sky laws
of such jurisdictions as may be required for the Holder to sell
securities under the registration statement or as shall be
reasonably requested by the Holders; provided, however, that the
Company shall not be required in connection therewith or as a
condition thereto (x) to qualify to do business in any such
states or jurisdictions, (y) to file a general consent to
service of process in any such states or jurisdictions or
(z) to subject itself to taxation in any such states or
jurisdictions;
(f) in
the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering,
provided that each Holder participating in such underwriting shall
also enter into and perform its obligations under such underwriting
agreement;
(g) notify
each Holder of Shares covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act of the happening of any event as a result
of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing and, at the request of
such Holder, prepare and furnish to such Holder a reasonable number
of copies of a supplement to or amendment of such prospectus so
that, as thereafter delivered to any offeree of such shares, such
prospectus shall 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 light of
the circumstances then existing;
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(h) notify
each Holder in advance of the delivery of any information under the
Credit Agreement that would constitute material non-public
information and cooperate with the Holders’ reasonable
requests related to the coordination of such information with
amendments to the registration to ensure the public availability of
such information (which amendments shall be effected promptly upon
the awareness by the Company of the new information);
(i) make
available for inspection by each Holder of Shares covered by such
registration statement, the Holder’s Counsel or any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such Holder or underwriter (collectively, the
“Inspectors”) all pertinent financial and other
records, pertinent corporate documents and properties of the
Company (collectively, the “Records”), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and
cause the Company’s officers, directors and employees to
supply all information (together with the Records, the
“Information”) reasonably requested by any such
Inspector in connection with such registration statement,
including, but not limited to, monthly, quarterly and annual
financial statements. Any of the Information that the Company
determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be
disclosed by the Inspectors to any third party unless (x) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement,
(y) the release of such Information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or a
governmental agency having jurisdiction over such matter, or
(z) such Information has been made generally available to the
public by the Company, provided, in any event, that the Holders
shall use commercially reasonable efforts to provide the Company
with reasonable advance written notice prior to any such
disclosure. The Holders of any Shares covered by such registration
statement hereby agree that they will, upon learning that
disclosure of such Information is sought by a court of competent
jurisdiction or a governmental agency having jurisdiction over such
matter, give notice to the Company and allow the Company, at the
Company’s expense, to undertake appropriate action to prevent
disclosure of the Information deemed
confidential;
(j) in
the case of an underwritten offering, use commercially reasonable
efforts to obtain from its independent certified public accountants
“comfort” letters (x) listing the Company and each
selling Holder as an addressee thereof or otherwise naming the
Company and each selling Holder as a third party beneficiary
thereof and (y) otherwise in customary form and at customary
times and covering matters of the type customarily covered by
comfort letters given by independent certified public accountants
in such transactions;
(k) in
the case of an underwritten offering, use commercially reasonable
efforts to obtain from its counsel an opinion or opinions
(x) listing the Company and each selling Holder as an
addressee thereof or otherwise naming the Company and each selling
Holder as a third party beneficiary thereof and (y) otherwise
covering such matters as are customary in such transactions,
including a standard “10b-5” opinion for such
offering;
(l) provide
a transfer agent and registrar (which may be the same entity and
which may be the Company) for such Shares;
(m) issue
to any underwriter to which any Holder may sell Shares in such
offering one or more certificates evidencing such
Shares;
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(n) use
commercially reasonable efforts to assist the selling Holders and
the managing underwriters or agents, if any, in marketing any
Shares that are included in the registration statement, including
causing its officers and employees to participate in any
“roadshow” and other investor presentations that the
Holders may reasonably request; and
(o) subject
to all of the other provisions of this Agreement, use commercially
reasonable efforts to take all other steps necessary to effect the
registration of the Shares contemplated hereby.
The
Company may suspend the use of a prospectus included in any
registration statement filed pursuant to this Agreement if the
Company is then in possession of material, non-public information,
the disclosure of which the Board of Directors has reasonably
determined in good faith would have a material adverse effect upon
the Company. The Company shall promptly notify all Holders of
Shares covered by such registration of any such determination by
the Board of Directors and, upon receipt of such notice, each such
Holder shall immediately discontinue any sales of securities
pursuant to such registration statement. Upon such suspension, the
Company shall take all commercially reasonable steps to cause the
condition that caused such suspension to cease to exist as soon as
practicable (but such efforts need not include the abandonment of
any proposed transaction). The Company hereby agrees that no such
suspension shall last more than ninety (90) days without the prior
written consent of the Requisite Holders.
1.6 Termination
of Registration Rights. The
registration rights set forth in this Agreement shall terminate at
such time as Rule 144 (as defined below) or another similar
exemption under the Securities Act is available for the sale of all
of the Holders’ Shares without limitation during a
three-month period without registration.
(a) In
connection with any registration, subject to Section
1.7(d)
below, the Company shall indemnify and
hold harmless each Holder selling Shares and each of its
Affiliates, each underwriter (as defined in the Securities Act),
and directors, officers, employees and agents of any of them, and
each other Person who participates in the offering of such
securities and each other Person, if any, who controls (within the
meaning of the Securities Act) such seller, underwriter or
participating Person (collectively, the “Holder Indemnified
Person”) against any
losses, claims, damages or liabilities (collectively, the
“liability”), joint or several, to which such Holder
Indemnified Person may become subject under the Securities Act or
any other statute or at common law, insofar as such liability (or
action in respect thereof) arises out of or is based upon
(w) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any
registration statement under which such securities were registered
under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement
thereto, or any free writing prospectus used in connection with any
offering, including but not limited to, any free writing prospectus
used by the Company, the underwriters or the Holders, or
(x) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or (y) any violation by
the Company of the Securities Act, any state securities or
“blue sky” laws or any sale or regulation thereunder in
connection with such registration, or (z) any information
provided by the Company or at the instruction of the Company to any
Person participating in the offer at the point of sale containing
any untrue statement or alleged untrue statement of any material
fact or omitting or allegedly omitting any material fact required
to be included in such information or necessary to make the
statements therein not misleading. Except as otherwise provided
in Section
1.7(c),
the Company shall reimburse each such Holder Indemnified Person in
connection with investigating or defending any such
liability; provided,
however,
that the Company shall not be liable to any Holder Indemnified
Person in any such case to the extent that any such liability
arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement, preliminary or final prospectus, or
amendment or supplement thereto, free writing prospectus, or other
information, in reliance upon and in conformity with information
furnished in writing to the Company by such Person specifically for
use therein; and provided
further, however, that the Company
shall not be required to indemnify any Person against any liability
arising from any untrue or misleading statement or omission
contained in any preliminary prospectus if such deficiency is
corrected in the final prospectus or for any liability which arises
out of the failure of any Person to deliver a prospectus as
required by the Securities Act
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(b) In
connection with any registration, subject to Section
1.7(d)
below, a Holder selling any Shares
included in such registration being effected shall indemnify and
hold harmless each other selling holder of any Shares, the Company,
its directors and officers, each underwriter and each other Person,
if any, who controls (within the meaning of the Securities Act) the
Company or such underwriter (collectively, the
“Company Indemnified
Persons” and together
with the “Holder Indemnified
Persons,” collectively,
the “Indemnified
Persons”), against any
liability, joint or several, to which any such Holder Indemnified
Person may become subject under the Securities Act or any other
statute or at common law, insofar as such liability (or actions in
respect thereof) arises out of or is based upon (x) any untrue
statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration
statement under which securities were registered under the
Securities Act at the request of such selling Holder, any
preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, any free writing prospectus
used in connection with such offering, including but not limited
to, any free writing prospectus used by the Company, the
underwriters, or the Holders, or (y) any omission or alleged
omission by such selling Holder to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (z) any information provided at the
instruction of the Company to any Person participating in the offer
at the point of sale containing any untrue statement or alleged
untrue statement of any material fact or omitting or allegedly
omitting any material fact required to be included in such
information or necessary to make the statements therein not
misleading, and in the case of (x), (y) and (z) to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such
registration statement, preliminary or final prospectus, amendment
or supplement thereto, free writing prospectus or other
information, in reliance upon and in conformity with information
furnished in writing to the Company by such selling Holder
specifically for use therein. Such selling Holder shall reimburse
any Holder Indemnified Person for any reasonable legal expenses
incurred in investigating or defending any such liability;
provided,
however,
that in no event shall the liability of any Holder for
indemnification under this Agreement in its capacity as a seller of
Shares exceed the lesser of (i) that proportion of the total of
such losses, claims, damages, expenses or liabilities indemnified
against equal to the proportion of the total securities sold under
such registration statement which is being held by such Holder, or
(ii) the amount equal to the proceeds to such Holder of the
securities sold in any such registration; and provided further,
however, that no selling Holder shall be required to indemnify any
Person against any liability arising from any untrue or misleading
statement or omission contained in any preliminary prospectus if
such deficiency is corrected in the final prospectus or for any
liability which arises out of the failure of any Person to deliver
a prospectus as required by the Securities Act.
(c) In
the event the Company, any selling Holder or other Person receives
a complaint, claim or other notice of any liability or action,
giving rise to a claim for indemnification under
Section
1.1
or Section
1.2
above, the Person claiming
indemnification under such paragraphs shall promptly notify the
Person against whom indemnification is sought of such complaint,
notice, claim or action, and such indemnifying Person shall have
the right to investigate and defend any such loss, claim, damage,
liability or action.
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(d) If
the indemnification provided for in this Section
1
is held by a court of competent
jurisdiction to be unavailable to an Indemnified Person with
respect to any loss, claim, damage, expense or liability referred
to therein, then the indemnifying party, in lieu of indemnifying
such Indemnified Person hereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such any
loss, claim, damage, expense or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and of the Indemnified Person, on the other
hand, in connection with the statements or omissions that resulted
in such any loss, claim, damage, expense or liability as well as
any other relevant equitable considerations; provided, however,
that in no event shall any contribution by a Holder under
this Section
1.7
when combined with any other amounts
paid by such Holder pursuant to this Agreement exceed the lesser of
that proportion of the total of such losses, claims, damages,
expenses or liabilities indemnified against equal to the proportion
of the total securities sold under such registration statement
which is being held by such Holder, or the amount equal to the
proceeds to such Holder of the securities sold in any such
registration. The relative fault of the indemnifying party and of
the Indemnified Person shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the
Indemnified Person and the parties’ relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Unless
otherwise superseded by an underwriting agreement entered into in
connection with the underwritten public offering, the obligations
of the Company and Holders under this Section
1
shall survive the completion of any
offering of securities in a registration statement under this
Agreement or otherwise (and shall survive the termination of this
Agreement).
2.1 Preemptive Right on
Senior Capital. After the
expiration of the Lock-Up Period, the Holder shall have the right
to purchase its pro rata share of any issuance or sale of any
Senior Capital of the Company or any of its Subsidiaries. The
Holder’s “pro rata
share” for purposes of
this Section
2.1
shall be equal to the Percentage
Interest represented by the Shares held by such Holder. The Company
shall not grant (or permit any Subsidiary to grant) any other
Person preemptive rights inconsistent herewith.
2.2 Notice
to Holder. If the Company or any of its Subsidiaries proposes
to issue or sell Senior Capital, then it will give the Holder
written notice of its intention, describing the type of Senior
Capital and the price and terms upon which the Company proposes to
issue or sell the Senior Capital. The Holder will have fifteen (15)
Business Days from the date of receipt of any such notice (and such
other information as the Holder may reasonably request in order to
facilitate its investment decision) to agree to purchase up to its
pro rata share of the Senior Capital for the price and upon the
terms specified in the notice from the Company described above by
giving written notice to the Company stating the amount of Senior
Capital agreed to be purchased.
3. DEFINITIONS.
As used herein, unless the context
otherwise requires, the following terms have the respective
meanings set forth below:
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“Affiliate” of a Person means any
other Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, such Person. The term “control”
(including the terms “controlling”, “controlled
by” and “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or
otherwise.
“Articles” means the
Company’s Certificate of Incorporation, as the same may be
amended, restated or otherwise modified from time to time in
accordance with the terms thereof.
“Board of Directors” has the
meaning given to such term in the Articles.
“Business Day” means any day other
than a Saturday or a Sunday or a day on which commercial banking
institutions in New York, New York are authorized or obligated by
law or executive order to be closed. Any reference to
“days” (unless Business Days are specified) shall mean
calendar days.
“Commission” means the United
States Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
“Common Shares” means shares of the
Company’s Common Stock, par value $0.025, per
share.
“Company” has the meaning given to
such term in the introduction to this Agreement and shall include
any Person that shall succeed to or assume the obligations of the
Company.
“Company Group” means the Company
and its Affiliates.
“Convertible Securities” means any
evidences of indebtedness or other instruments or securities (other
than Options) directly or indirectly convertible into or
exchangeable for Equity Securities of the Company.
“Credit Agreement” means that
certain Credit and Guaranty Agreement, dated as of December 22,
2015, by and among the Company, certain of its Subsidiaries and
Affiliates, the Purchasers named therein, and Xxxxxxx Xxxxx
Specialty Lending Group, L.P., as administrative agent and lead
arranger, as amended, restated or otherwise modified from time to
time.
“Equity Plan Securities” means
Common Shares issued, or reserved for issuance pursuant to an
incentive equity plan (including any Common Shares issuable upon
exercise of any Convertible Security or Option pursuant to any
incentive equity plan) approved by a majority of the independent
directors on the Board.
“Equity Securities” means, as to
any Person, such Person’s equity securities or other equity
interests authorized from time to time, and any other securities,
options, interests, participations or other equivalents (however
designated) of or in such Person, whether voting or nonvoting,
including options, warrants, phantom equity, equity appreciation
rights, convertible notes or debentures, equity purchase rights,
and all agreements, instruments, documents and securities
convertible, exercisable, or exchangeable, in whole or in part,
into any one or more of the foregoing.
“Exchange Act” means the Securities
Exchange Act of 1934, or any similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall
be in effect at the time.
9
“Fully-Diluted Basis” means at any
time, without duplication, (i) as applied to any calculation of the
number of securities of the Company, after giving effect to,
without duplication, (w) all Common Shares of the Company
outstanding at the time of determination, (x) all Equity Securities convertible into or
exercisable or exchangeable (directly or indirectly) for Common
Shares and all interests, participations or other Common
Shares equivalents, (y) all
Common Shares issuable upon the exercise of any Convertible
Security or Option outstanding as of the date of determination, and
(z) all Equity Plan Securities not otherwise covered by the
foregoing; and (ii) as applied to any calculation of value, after
giving effect to the foregoing securities and the payment of any
consideration payable upon the exercise of any Convertible Security
or Option referred to in clause (i) above if such Convertible
Security or Option were exercisable at such time; provided, that, with respect to
this clause (ii), Fully-Diluted Basis shall in all circumstances
include the Shares but shall exclude any Common Shares that are
issuable in connection with the exercise of any Option or
Convertible Security that is not “in the money,” nor
shall it ascribe any value to any such Option or Convertible
Security.
“Holder” means each and every
holder or beneficial owner of any portion of the Shares, which
shall initially be the Purchaser. For purposes of simplicity, this
Agreement was drafted in contemplation of one Holder. In the event
that, at any given time, there shall be more than one Holder,
(i) references to “Holder” and the
“Shares” shall mean each Holder and the portion of the
Shares held by each such Holder, (ii) all notices shall be
delivered to each Holder in accordance with Section 13 and (iii) with respect
to any action, approval, or consent of the Holder required or
otherwise permitted pursuant to the provisions hereof, or any
amendment, modification or waiver under or with respect to this
Agreement, such action, approval, consent, amendment, modification
or waiver shall be deemed to have been taken, received or otherwise
obtained if such action, approval or consent is taken, received or
otherwise obtained by or from Requisite Holders, regardless of
whether any such party has consented thereto, except that each
Holder may, on an individual basis, exercise its rights described
in Section
2. Without in any
way limiting the foregoing, the term “Holder” shall
include the Purchaser and each of its successors and/or assigns
that at any time holds or otherwise owns any portion of the
Shares.
“Lock-Up Period” has the meaning
set forth in that certain Lock-Up Agreement, dated January 9, 2017,
by and between the Purchaser and Xxxxxx Xxxxxx & Co.,
LLC.
“Offering Shares” means the Common
Shares issued to the public in the Offering.
“Offering Warrants” means the
warrants to purchase Common Shares that are issued to the
purchasers of the Offering Shares.
“Options” means any rights, options
or warrants to subscribe for, purchase or otherwise acquire any of
the Company’s Equity Securities.
“Percentage Interest” means, with
respect to the Shares in question, an amount equal to (a) the
number of Shares in question divided by (b) the total number of
Common Shares on a Fully-Diluted Basis.
“Person” means an individual, a
partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization or any federal, state, county or
municipal governmental or quasi-governmental agency, department,
commission, board, bureau, instrumentality or similar entity,
Person that is not a United States Person (as such term is defined
in Section 7701(a)(30) of the Internal Revenue Code) for U.S.
federal income tax purposes or domestic, having jurisdiction over
either the Company or any Holder.
“Piggyback Shares” means,
collectively, the Shares of each Holder requesting piggyback
registration rights hereunder.
10
“Purchaser Group” means the
Purchaser and its Affiliates.
“Qualified Offering” means the
Offering so long as the Offering (i) is consummated on or
prior to February 28, 2017, (ii) results in at least
$10 million of gross proceeds, net of the underwriting
discount and commissions, to the Company, (iii) results in the
Common Shares being listed on the New York Stock Exchange or
NASDAQ, (iv) whereby any Offering Warrants are issued
(a) on no greater than a 1:1 basis with the Offering Shares
(i.e., the Offering
Warrants are not exercisable for a number of Common Shares greater
than the number of Offering Shares) and (b) at a per share
exercise price at least equal to the per share price of the
Offering Shares and (v) pursuant to which 100% of the
outstanding shares of Series C
Preferred Stock of the Company, par value $0.001 per share,
is converted to Common Shares, in each case, unless otherwise
agreed in advance by the Purchaser in its sole discretion in a
written instrument executed by a duly authorized officer of the
Purchaser after the date hereof.
“Requisite Holders” means the
Holder or Holders that own or otherwise hold more than
fifty-percent (50%) of the Shares.
“Securities Act” means the
Securities Act of 1933, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as the same
shall be amended and in effect at the time.
“Senior Capital” means any and all
Equity Securities, indebtedness or debt securities of the Company
or any of its Subsidiaries (other than such issuances between or
among the Company and its direct or indirect wholly-owned
Subsidiaries), other than Common Shares (or Equity Securities
convertible into or exercisable or
exchangeable (directly or indirectly) for Common Shares) or
first lien indebtedness for borrowed money.
“Stockholder” means each holder of
the Company’s Equity Securities.
“Subsidiary” means, with respect to
any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of
which more than 50% of the total voting power of shares of stock or
other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other
Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at
the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a
combination thereof; provided, in determining the
percentage of ownership interests of any Person controlled by
another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed
to be outstanding.
Unless
the context of this Agreement clearly requires otherwise,
references to the plural include the singular, references to the
singular include the plural, the term “including” is
not limiting, and the term “or” has, except where
otherwise indicated, the inclusive meaning represented by the
phrase “and/or.”
4. INFORMATION AND OBSERVATION
RIGHTS.
4.1 Information
Rights. For so long as the Purchaser or its Affiliates
holds Equity Securities of the Company, the Company shall provide
the Holder with (a) copies of any and all information that the
Company is required to deliver pursuant to the following
subsections of Section 5.1 of the Credit Agreement: (a) (monthly
reports), (b) (quarterly financial statements), (c) (annual
financial statements), (g) (notice of litigation),
(i) financial plan, (l) (notice regarding material contracts)
and (m) (environmental reports and audits) of the Credit
Agreement (as of the date hereof and regardless of any termination
thereof) and (b) such other information relating to the
financial condition, business, prospects or corporate affairs of
the Company as the Purchaser or its Affiliates may from time to
time reasonably request; provided,
however,
that the Company shall not be obligated under this clause (b) to
provide information (i) to the extent that the Company
reasonably determines such information to be a trade secret or
similar confidential information (unless covered by an enforceable
confidentiality agreement, in form acceptable to the Company) or
(ii) to the extent that providing such information would
reasonably be expected to adversely affect the attorney-client
privilege between the Company and its counsel.
11
4.2 Right
to Appoint Observer. The Holder
shall be entitled to appoint one Person (the
“Holder
Appointee”) to attend, as
a non-voting observer, each meeting of the Board of Directors, or
any committee thereof, whether such meeting is conducted in person
or by telephone. The Holder Appointee shall be entitled to receive,
with respect to each meeting of the Board of Directors or any
committee thereof: (a)(i) written notice of each regular meeting at
least ten (10) days in advance thereof and (ii) written notice of
each special meeting at least two (2) Business Days in advance of
such meeting, but, in any case involving any such regular or
special meeting, such notice shall be delivered no later than the
date on which the members of the Board of Directors or the
committee, as applicable, are notified of such meeting, and (b) any
and all information provided in connection with each such meeting
to all other potential attendees of such meeting, in each case at
the time and in the same manner as provided to such other
attendees. Additionally, the Holder Appointee shall receive copies
of all other notices, minutes, consents and other material items
that the Company provides to its directors at the same time and in
the same manner as provided to such directors. The Holder Appointee
shall receive reimbursement from the Company for any and all
reasonable out-of-pocket expenses incurred in connection with
attending any and all meetings of the Board of Directors or any
committee thereof. The Holder shall be entitled to fill any vacancy
caused by the resignation, death or removal of a prior Holder
Appointee.
5.1 Generally.
Without limitation of any other provision of this Agreement or the
Warrant Cancellation Agreement, the Company agrees to defend,
indemnify and hold the Holder, its respective affiliates and direct
and indirect partners (including partners of partners and
stockholders and members of partners), members, stockholders,
directors, officers, employees and agents and each person who
controls any of them within the meaning of Section 15 of the
Securities Act, or Section 20 of the Exchange Act (collectively,
the “Holder Indemnified
Parties” and,
individually, a “Holder Indemnified
Party”) harmless from and
against any and all damages, liabilities, losses, taxes, fines,
penalties, reasonable costs and expenses (including reasonable fees
of a single counsel representing the Holder Indemnified Parties),
as the same are incurred, of any kind or nature whatsoever (whether
or not arising out of third-party claims and including all amounts
paid in investigation, defense or settlement of the foregoing)
which may be sustained or suffered by any such Holder Indemnified
Party (“Losses”), based upon, arising out of, or by reason
of (a) any breach of any representation or warranty made by the
Company in this Agreement or the Warrant Cancellation Agreement,
(b) any breach of any covenant or agreement made by the Company in
this Agreement or the Warrant Cancellation Agreement, or (c) any
third party or governmental claims relating in any way to such
Holder Indemnified Party’s status as a security holder,
creditor, director, agent, representative or controlling person of
the Company or otherwise relating to such Holder Indemnified
Party’s involvement with the Company (including any and all
Losses under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise,
which relate directly or indirectly to the registration, purchase,
sale or ownership of any securities of the Company or to any
fiduciary obligation owed with respect thereto), including in
connection with any third party or governmental action or claim
relating to any action taken or omitted to be taken or alleged to
have been taken or omitted to have been taken by any Holder
Indemnified Party as security holder, director, agent,
representative or controlling person of the Company or otherwise,
alleging so-called control person liability or securities law
liability; provided,
however,
that the Company will not be liable to the extent (and then solely
to such extent) that such Losses arise from and are based on (i) an
untrue statement or omission or alleged untrue statement or
omission in a registration statement or prospectus which is made in
reliance on and in conformity with written information furnished to
the Company by or on behalf of such Holder Indemnified Party, or
(ii) conduct by a Holder Indemnified Party which constitutes
fraud or willful misconduct.
12
5.2 Other
Indemnitors. The Company hereby
acknowledges that certain of the Holder Indemnified Parties have
certain rights to indemnification, advancement of expenses or
insurance provided by the Purchaser Group (collectively, the
“Other
Indemnitors”). The
Company hereby agrees that (a) to the extent legally permitted and
as required by the terms of this Agreement (or by the terms of any
other agreement between the Company and a Holder Indemnified
Party), (i) the Company is the indemnitor of first resort (i.e.,
its obligations to each Holder Indemnified Party are primary and
any obligation of the Other Indemnitors to advance expenses or to
provide indemnification for the same expenses or liabilities
incurred by any Holder Indemnified Party are secondary) and (ii)
the Company shall be required to advance the full amount of
expenses incurred by a Holder Indemnified Party and shall be liable
for the full amount of all expenses, judgments, penalties, fines
and amounts paid in settlement, without regard to any rights that a
Holder Indemnified Party may have against the Other Indemnitors and
(b) the Company irrevocably waives, relinquishes and releases the
Other Indemnitors from any and all claims for contribution,
subrogation or any other recovery of any kind in respect of any of
the matters described in clause (a)
of this sentence for which any Holder
Indemnified Party has received indemnification or advancement from
the Company. The Company further agrees that no advancement or
payment by the Other Indemnitors on behalf of any Holder
Indemnified Party with respect to any claim for which a Holder
Indemnified Party has sought indemnification from the Company shall
affect the foregoing and that the Other Indemnitors shall have a
right of contribution and/or be subrogated to the extent of such
advancement or payment to all of the rights of recovery of such
Holder Indemnified Party against the Company.
5.3 Certain
Limitations. If the
indemnification provided for in Section
5.1
above for any reason is held by a
court of competent jurisdiction to be unavailable to a Holder
Indemnified Party in respect of any Losses referred to therein,
then the Company, in lieu of indemnifying such Holder Indemnified
Party thereunder, shall contribute to the amount paid or payable by
such Holder Indemnified Party as a result of such Losses (a) in
such proportion as is appropriate to reflect the relative benefits
received by the Company and the Holder, or (b) if the allocation
provided by clause
(a)
above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause
(a)
above but also the relative fault of
the Company and the Holder in connection with the action or
inaction which resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the
Company and the Holder shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and
the Holder and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
5.4 Other.
Each of the Company and the Holder agrees that it would not be just
and equitable if contribution pursuant to Section
5.2
were determined by pro rata or per
capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The rights to indemnification
provided to the Purchaser (and any other Person who becomes a
Holder) and the other Holder Indemnified Parties in this
Section
5
shall survive the termination of this
Agreement or the exchange or transfer of Shares. The Holder
Indemnified Parties and Other Indemnitors are express third party
beneficiaries of the terms of this Section
5.
6. AVAILABILITY
OF INFORMATION.
13
6.1 Compliance.
The Company shall comply with the reporting requirements of Section
13 and 15(d) of the Exchange Act and shall comply with all public
information reporting requirements of the Commission (including
Rule 144 promulgated by the Commission under the Securities Act
(“Rule
144”)) from time to time
in effect and relating to the availability of an exemption from the
Securities Act for the sale of any Shares.
6.2 Cooperation.
The Company shall also cooperate with the Holder (so long as it
holds any Restricted Securities) in supplying such information as
may be necessary for the Holder to complete and file any
information reporting forms presently or hereafter required by the
Commission as a condition to the availability of an exemption from
the Securities Act for the sale of any Shares.
6.3 Assistance
with Sales of Shares. If
requested by the Holder, the Company shall make a public disclosure
of any material nonpublic information previously supplied to the
Holder in order to facilitate the sale of Shares by the Holder
pursuant to Rule 144; such disclosure shall be made no later than
forty-five days following the request by the Holder.
Notwithstanding the foregoing, Company may suspend the disclosure
of material, non-public information, the disclosure of which the
Board of Directors has reasonably determined in good faith would
have a material adverse effect upon the Company, in which event the
Company shall immediately provide notice of the determination to
the Holder. Upon such determination, the Company shall take all
commercially reasonable steps to cause the condition that caused
such suspension to cease to exist as soon as practicable (but such
efforts need not include the abandonment of any proposed
transaction). The Company hereby agrees that no such suspension
shall last more than ninety (90) days without the prior written
consent of the Requisite Holders.
7. MULTIPLE
HOLDERS; NO LIABILITIES AS A STOCKHOLDER.
7.1 Multiple
Holders. In the event that
there shall be multiple Holders, each Holder agrees that
(i) no other Holder will by virtue of this Agreement or by
such Holder’s ownership of Shares be under any fiduciary or
other duty to take any action or omit to take any action under this
Agreement and (ii) each other Holder may act or refrain from
acting under this Agreement as such other Holder may, in its
discretion, elect.
7.2 No
Liabilities As a Stockholder.
Nothing contained in this Agreement shall be construed as imposing
any obligation on any Holder to purchase any securities or as
imposing any liabilities on any Holder as a holder of Equity
Securities of the Company, whether such obligation or liabilities
are asserted by the Company or by creditors of the
Company.
8. NO EFFECT ON LENDER
RELATIONSHIP. The Company and
each Holder acknowledges and agrees that, notwithstanding anything
in this Agreement or the Credit Agreement to the contrary, nothing
contained in this Agreement or the Warrant Cancellation Agreement
shall affect, limit or impair the rights and remedies of the
Purchaser Group in its or their capacity as a lender or as agent
for lenders to the Company or any of its Subsidiaries pursuant to
any agreement under which the Company or any of its Subsidiaries
has borrowed money, including the Credit Agreement, or in its or
their capacity as a lender or as agent for lenders to any other
Person who has borrowed money. Without limiting the generality of
the foregoing, any such Person, in exercising its rights as a
lender, including making its decision on whether to foreclose on
any collateral security, will have no duty to consider (x) its or
any of its Affiliates’ status as a Holder, (y) the interests
of the Company or its Subsidiaries or (z) any duty it may have to
any holder of the Company’s Equity Securities (including any
other Holder, in the event that there shall be multiple Holders),
except as may be required under the applicable loan documents or by
commercial law applicable to creditors generally. No consent,
approval, vote or other action taken or required to be taken by the
Holder in such capacity shall in any way impact, affect or alter
the rights and remedies of the Purchaser or any of its Affiliates
as a lender or agent for lenders.
14
9.1 General.
In recognition and anticipation (a) that the Purchaser is a
significant equityholder of the Company, (b) that directors,
officers and/or employees of the Purchaser Group may serve as the
Holder Appointee (or in other capacities of the Company
Group), (c) that the Company Group may, directly or
indirectly, through ownership interests in a variety of
enterprises, engage in activities that overlap with or compete with
those in which the Company Group, directly or indirectly, may
engage, (d) that the Purchaser Group may have an interest in the
same areas of corporate opportunity as the Company Group and (e)
that, as a consequence of the foregoing, it is in the best
interests of the Company Group that the respective rights and
duties of the Company Group and of the Purchaser Group, and the
duties of any Holder Appointee (or any other Person in service to
the Company Group) who are also directors, officers or employees of
the Purchaser Group, be determined and delineated in respect of any
transactions between, or opportunities that may be suitable for
both, the Company Group, on the one hand, and the Purchaser Group,
on the other hand, the provisions of this Section
9
shall to the fullest extent permitted
by law regulate and define the conduct of certain of the business
and affairs of the Company Group in relation to the Purchaser Group
and the conduct of certain affairs of the Company Group as they may
involve the Purchaser Group, their respective officers, directors
and employees, and the power, rights, duties and liabilities of the
Company Group and its officers, directors and equityholders in
connection therewith. The Stockholders and any Person purchasing or
otherwise acquiring any Shares, or any interest therein, shall be
deemed to have notice of and to have consented to the provisions of
this Section
9.
9.2 Duties of the
Purchasers. The Company and
each Holder hereto acknowledges and agrees that nothing in this
Agreement, the Warrant Cancellation Agreement or otherwise shall
create a fiduciary duty of the Purchaser Group, or any officer,
director or employee of the Purchaser Group, to the Company Group
or any of its equityholders. Notwithstanding anything to the
contrary in this Agreement or the Warrant Cancellation Agreement or
any actions or omissions by representatives of the Purchaser Group
in whatever capacity, including as a Holder Appointee, it is
understood that the Purchaser Group is not acting as a financial
advisor, agent or underwriter to the Company Group or otherwise on
behalf of the Company Group unless retained to provide such
services pursuant to a separate written agreement. Except as
otherwise agreed in writing between the Company and the Purchaser,
the Purchaser Group shall to the fullest extent permitted by law
have no duty to refrain from (a) engaging in the same or similar
activities or lines of business as the Company Group or (b) doing
business with any client, customer or vendor of the Company Group.
If the Purchaser Group acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for both
the Company Group and the Purchaser Group, then the Company and
each Holder (that is not a member of the Purchaser Group) to the
fullest extent permitted by law renounces any interest or
expectancy in such business opportunity and waives any claim that
such business opportunity constituted a corporate opportunity that
should have been presented to the Company Group. In the case of any
such corporate opportunity, the Purchaser Group shall to the
fullest extent permitted by law not be liable to the Company Group
or their equityholders or to any other Holder, as an equity holder
of the Company by reason of the fact that the Purchaser Group
acquires or seeks such corporate opportunity for themselves, direct
such corporate opportunity to another Person or otherwise does not
communicate information regarding such corporate opportunity to the
Company Group.
9.3 Duties of Certain of
the Purchaser’s Affiliates. If a Holder Appointee acquires knowledge of a
potential transaction or matter that may be a corporate opportunity
for both the Company Group and the Purchaser Group, then such
Holder Appointee shall have no duty to communicate or present such
corporate opportunity to the Company Group and shall, to the
fullest extent permitted by law, not be liable to the Company Group
or their equityholders, or to any other Holder, for breach of any
fiduciary or other duty as an observer to the Board of Directors or
committee thereof or in any other capacity by reason of the fact
that the Purchaser Group pursues or acquires such corporate
opportunity for themselves, direct such corporate opportunity to
another Person or do not present such corporate opportunity to the
Company Group, and the Company and each Holder (that is not a
member of the Purchaser Group) to the fullest extent permitted by
law renounces any interest or expectancy in such business
opportunity and waives any claim that such business opportunity
constituted a corporate opportunity that should be presented to the
Company Group.
15
9.4 Corporate
Opportunities Defined. For
purposes of this Section
9, “corporate opportunities” shall
include, but not be limited to, business opportunities that the
Company Group is financially able to undertake, that are, from
their nature, in the line of the Company Group’s business,
that are of practical advantage to it and that are ones in which
the Company Group, but for the provisions of Sections
9.2
and 9.3, would
have an interest or a reasonable expectancy, and in which, by
embracing the opportunities, the self-interest of the Purchaser
Group or their officers or directors will be brought into conflict
with that of the Company Group.
10. NON PROMOTION.
The Company agrees that it will not,
without the prior written consent of the Purchaser, in each
instance, use in advertising, publicity or otherwise any name of
the Purchaser Group, or any partner or employee of the Purchaser
Group, nor any trade name, trademark, trade device, service xxxx,
symbol or any abbreviation, contraction or simulation thereof owned
by the Purchaser Group, or represent, directly or indirectly, that
any product or any service provided by the Company Group has been
approved or endorsed by such Purchaser Group.
11. USE OF LOGO.
The Company grants the Purchasers
permission to use any name or logo of the Company Group in any
marketing materials of the Purchaser Group. The Purchaser Group
shall include a trademark attribution notice giving notice of the
Company Group’s ownership of its trademarks in the marketing
materials in which the Company Group’s name and logo
appear.
12. LOCK-UP LIMITATIONS.
Notwithstanding anything in this
Agreement, none of the provisions of this Agreement shall in any
way limit the Purchaser Group from engaging in any brokerage,
investment advisory, financial advisory, anti-raid advisory,
principaling, merger advisory, financing, asset management,
trading, market making, arbitrage, investment activity and other
similar activities conducted in the ordinary course of their
business. Notwithstanding anything to the contrary set forth in
this Agreement, no restrictions set forth in this Agreement shall
apply to Equity Securities acquired by the Purchaser Group
following the effective date of the first registration statement of
the Company covering Equity Securities to be sold on behalf of the
Company in an underwritten public offering.
13.1 Manner
of Delivery. Any notice or
other communication in connection with this Agreement shall
(a) if delivered personally, be deemed received upon delivery;
(b) if delivered by telecopy or electronic mail, be deemed
received on the Business Day of confirmation; (c) if delivered
by certified mail, be deemed received upon actual receipt thereof
or three Business Days after the date of deposit in the United
States mail, as the case may be; and (d) if delivered by
nationally recognized overnight delivery service, be deemed
received the Business Day after the date of deposit with the
delivery service.
13.2 Place
of Delivery. Any notice or other communication in connection
with this Agreement shall be delivered to the following address
(a) if to the Holder, to the address set forth on the
signature page hereto (or any other address that the Holder may
designate by written notice to the Company in accordance with
this Section
13) with a copy of such notice delivered by
electronic mail, (b) if to the Company, to the attention of
its Chief Executive Officer or President at its Chief Executive
Office.
16
Any provision of this Agreement may be amended or
waived with the written consent of the Company and the Holder (or,
for the avoidance of doubt, if there are multiple Holders, then the
Holder or Holders constituting the Requisite Holders), and no
amendment or waiver of this Agreement shall require the consent of
any Stockholder. Any amendment or waiver effected in compliance
with this Section
14
shall be binding upon the Company and
the Holder. In the event that there shall be multiple Holders, the
Company shall give prompt notice to each Holder of any amendment or
waiver effected in compliance with this Section
14. No failure or delay of the Company or the Holder
in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further
exercise thereon or the exercise of any other right or power. No
notice or demand on the Company in any case shall entitle the
Company to any other or future notice or demand in similar or other
circumstances. The rights and remedies of the Company and the
Holder hereunder are cumulative and not exclusive of any rights or
remedies which it would otherwise have.
15. MISCELLANEOUS.
15.1 Expenses.
The Company shall pay all reasonable expenses of the Holder,
including reasonable legal expenses, in connection with the
preparation of this Agreement, any waiver or consent hereunder or
any amendment or modification hereof (regardless of whether the
same becomes effective), or the enforcement of the provisions
hereof.
15.2 Successors
and Assigns. All the provisions
of this Agreement by or for the benefit of the Company or the
Holder shall bind and inure to the benefit of their respective
successors and permitted assigns.
15.3 Severability.
In case any one or more of the provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby. Furthermore, in lieu of any such invalid, illegal
or unenforceable provision, there shall be added automatically as a
part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible and
be legal, valid and enforceable, unless the requisite parties
separately agree to a replacement provision that is valid, legal
and enforceable.
15.4 Equitable
Remedies. Without limiting the
rights of the Company and the Holder to pursue all other legal
rights available to such party (including equitable remedies) for
the other parties’ failure to perform its obligations
hereunder, the Company and the Holders each hereto acknowledge and
agree that the remedy at law for any failure to perform any
obligations hereunder (or any failure to observe the terms of this
Agreement by any Stockholder) may be inadequate and that may shall
be entitled to specific performance, injunctive relief or other
equitable remedies in the event of any such
failure.
15.5 GOVERNING
LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY
PROVISIONS OF LAW.
15.6 WAIVER
OF JURY TRIAL. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
17
15.7 Section
Headings; Construction. The
section headings used herein are for convenience of reference only
and shall not be construed in any way to affect the interpretation
of any provisions of this Agreement. The titles and subtitles used
in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. Terms
defined in the singular have the corresponding meanings in the
plural, and vice versa. Unless the context of this Agreement
clearly requires otherwise, words importing the masculine gender
include the feminine and neutral genders and vice versa. The terms
“include,” “includes” or
“including” mean “including without
limitation.” The words “hereof,”
“hereto,” “hereby,” “herein,”
“hereunder” and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any
particular section or article in which such words
appear.
15.8 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken
together, shall be deemed to be one and the same
instrument.
[Signature Page Follows]
18
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed as of the date hereof.
|
|
COMPANY:
By:
/s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Chief
Executive Officer
HOLDER:
XXXXXXX,
XXXXX & CO.
By:
/s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title: Authorized
Signatory
|
Address
for Notices:
Xxxxxxx, Sachs
& Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
AmSSG Legal Department
with
copies to (which shall not constitute notice):
Xxxxxx
& Xxxxxx L.L.P.
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxx Xxxxxxxx
Signature Page
Registration Rights Agreement
