REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated November 7,
2006, is entered into by and between EPOCH HOLDING CORPORATION, a Delaware
corporation (the "Company") and GENERAL AMERICAN INVESTORS COMPANY, INC., a
Delaware corporation (the "Purchaser"), as a material inducement for the
Purchaser to purchase 10,000 of shares of convertible preferred stock, stated
value $1,000.00 per share (the "Series A Preferred Stock") in accordance with
the terms of that certain Securities Purchase Agreement, dated on or about the
date hereof (the "Purchase Agreement"). All capitalized terms used but not
defined herein shall have the meanings ascribed thereto in the Purchase
Agreement.
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
1. Definitions. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Agreement:
"Act" shall mean the Securities Act of 1933, as amended, and any
successor statute from time to time.
"Effective Date" shall mean, with respect to a particular
Registration Statement, the date on which the SEC declares such Registration
Statement effective.
"Excluded Registration Statement" shall mean a registration
statement relating solely to the registration of the sale of securities (i)
other than for cash, (ii) to participants in a Company stock plan or employee
benefit plan, agreement or arrangement, and (iii) in a transaction covered by
Rule 145 under the Act or the resale of securities issued in such a transaction.
"Registrable Securities" shall mean all shares of Common Stock
underlying the Series A Preferred Stock held from time to time by the Purchaser
and any other securities distributed to or received by the Purchaser, whether by
dividend, upon conversion or otherwise, in respect of the Series A Preferred
Stock or in respect of any Registrable Securities; provided, however, that such
Registrable Securities shall cease to be Registrable Securities at such time as
all such Registrable Securities (i) are sold pursuant to any registration
statement filed by the Company with the SEC or, pursuant to Rule 144 promulgated
under the Act or are publicly sold pursuant to any other exemption from
registration under the Act or (ii) may be sold, without any volume limitation or
the requirement for the seller to file any notice or other instrument with the
SEC, in open market transactions pursuant to any applicable exemption from the
registration requirements of the Act, including, without limitation, Rule 144(k)
promulgated thereunder (or any successor thereto).
"Registration" shall mean any registration or proposed registration
of Registrable Securities under Section 5 of the Act pursuant to a Registration
Statement in respect to the sale of any Registrable Securities.
"Registration Period" shall mean with respect to a particular
Registration Statement the period (i) beginning upon the declaration of
effectiveness of such Registration Statement provided for in Section 2 hereof
and (ii) ending on the date that all Registrable Securities covered by such
Registration Statement have ceased to be Registrable Securities.
"Registration Statement" shall mean any registration statement filed
or to be filed by the Company with the SEC under the Act.
"SEC" shall mean the United States Securities and Exchange
Commission, or any successor agency or agencies performing the functions
thereof.
2. Registration.
(a) Mandatory Registration. The Company shall prepare, and, within
sixty (60) calendar days after the Closing Date (the "Filing Date"), file with
the SEC a Registration Statement on Form S-3 covering the resale of the
Registrable Securities, which Registration Statement, to the extent allowable
under the Act and the rules and regulations promulgated thereunder (including
Rule 416), shall state that such Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of or otherwise pursuant to the Preferred Stock to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
The number of shares of Common Stock initially included in such Registration
Statement shall be no less than an amount equal to the number of shares of
Common Stock that on the Filing Date are issuable upon conversion of the
Preferred Stock (based on the Conversion Price in effect on the Filing Date),
without regard to any limitation on the Purchaser's ability to convert the
Preferred Stock. The Company acknowledges that the number of shares initially
included in the Registration Statement will represent a good faith estimate of
the maximum number of shares issuable upon conversion of the Preferred Stock;
(b) Eligibility for Form S-3. The Company represents and warrants
that it meets the requirements for the use of Form S-3 for registration of the
resale by the Purchaser. The Company agrees to file all reports required to be
filed by the Company with the SEC in a timely manner so as to remain eligible,
and thereafter to maintain its eligibility, for the use of Form S-3;
(c) Opinion of Counsel. Within three (3) business days of the
Effective Date, the Company shall cause its counsel to issue an opinion, subject
to such counsel's reliance on reasonable assumptions and certificates of the
appropriate parties hereto, to the transfer agent stating that the shares are
subject to an effective registration statement and can be reissued free of
restrictive legend, provided that the Company has not advised the transfer agent
orally or in writing that the opinion has been withdrawn;
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(d) Compliance with Prospectus Delivery Requirements. The Purchaser
agrees that any sale by the Purchaser of Registrable Securities pursuant to a
particular Registration Statement shall be sold in a manner described in the
plan of distribution set forth in the related prospectus and, if the prospectus
delivery requirements cannot be satisfied by compliance with Rule 153 or 172
under the Act, (i) if such sale is made through a broker, the Purchaser shall
instruct its broker to deliver the prospectus to the buyer or buyers (or the
broker or brokers therefor) in connection with such sale, shall supply copies of
the prospectus to its broker or brokers and shall instruct its broker or brokers
to deliver such prospectus to the buyer in such sale or such buyer's broker,
(ii) if such sale is made in a transaction directly with a buyer and not through
the facilities of any securities exchange or market, the Purchaser shall
deliver, or cause to be delivered, the prospectus to such buyer, and (iii) if
such sale is made by any means other than those described in the immediately
preceding clauses (i) and (ii), the Purchaser shall otherwise comply with the
prospectus delivery requirements of the Act applicable to such sale;
(e) Allowed Suspension. If, after the Registration Statement is
declared effective, (i) there is material non-public information regarding the
Company which the Company's Board of Directors (the "Board") reasonably
determines not to be in the Company's best interest to disclose and which the
Company is not required to disclose for reasons other than disclosure required
in connection with the Registration Statement and the related prospectus, or
(ii) there is a significant business opportunity (including, but not limited to,
the acquisition or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or other similar
transaction) available to the Company which the Board reasonably determines not
to be in the Company's best interest to disclose and which the Company would be
required to disclose for purposes of the Registration Statement, then the
Company may suspend effectiveness of such Registration Statement for a period
not to exceed ten (10) consecutive Trading Days, provided that the Company may
not suspend effectiveness of the Registration Statement under this Section 2(e)
for more than twenty (20) days in the aggregate during any twelve (12) month
period;
(f) If at any time or from time to time after the Closing Date the
Purchaser shall hold, or be the beneficial owner of, any Registrable Securities,
other than the Registrable Securities included in the Registration Statement
that the Company is required to file under Section 2(a), which Registrable
Securities are not covered by a Registration Statement, then promptly following
the written demand of the Purchaser following the issuance of such additional
Registrable Securities or the issuance of any securities convertible into,
exchangeable for, or otherwise entitling the Purchaser to acquire, such
additional Registrable Securities, and in any event within thirty (30) calendar
days following such demand, the Company or the issuer of such additional
Registrable Securities shall prepare and file with the SEC a new Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the Company or
such issuer, as the case may be, on such form of registration statement as is
then available to effect a registration for resale of such additional
Registrable Securities) covering the resale by the Purchaser of such additional
Registrable Securities. Such Registration Statement also shall cover, to the
extent permitted by the Act and the rules promulgated thereunder (including Rule
416), such indeterminate number of additional securities resulting from stock
splits, stock dividends or similar transactions with respect to such additional
Registrable Securities. Nothing herein shall limit the Company's obligations or
the Purchaser's rights under the Certificate of Designations; and
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(g) The Company shall use its best efforts to cause each
Registration Statement to become effective as promptly as possible after the
filing thereof with the SEC and to keep such Registration Statement effective at
all times during the Registration Period. The Company shall submit to the SEC,
within three (3) business days after the Company learns that no review of such
Registration Statement will be made by the Staff of the SEC or that the Staff of
the SEC has no further comments on such Registration Statement, as the case may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than forty-eight (48) hours after the submission of
such request. The Company represents and warrants to the Purchaser that (i) each
Registration Statement (including any amendment or supplement thereto and
prospectus relating thereto), at the time it is first filed with the SEC, at the
time it is ordered effective by the SEC and at all times during which it is
required to be effective hereunder (and each such amendment and supplement at
the time it is filed with the SEC and at all times during which it is required
hereby to be available for use in connection with the offer and sale of the
Registrable Securities covered thereby) shall not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii) each
prospectus, at the time the related Registration Statement is declared effective
by the SEC and at all times that such prospectus is required by this Agreement
to be available for use by the Purchaser and, in accordance with Section 2(g),
the Purchaser is entitled to sell Registrable Securities pursuant to such
prospectus, shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
3. Registration Procedures. In the case of each Registration effected by
the Company in which Registrable Securities are to be sold, the Company shall:
(a) furnish to Law Offices of Xxxxx X Xxxxx (counsel to the
Purchaser) copies of all Registration Statements or prospectuses or any
amendments or supplements thereto proposed to be filed with the SEC, which
documents will be subject to review by such counsel before filing solely with
regard to any information contained therein which pertains either to the
transactions contemplated by the Transaction Documents or the Purchaser;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and such
prospectus available for use by the Purchaser for the offer and sale of the
Registrable Securities covered thereby during the applicable Registration Period
and to comply with the provisions of the Act with respect to the disposition of
all securities covered by such Registration Statement during such period;
(c) furnish to the Purchaser electronic copies of such Registration
Statement, each amendment and supplement thereto, the prospectus included in
such Registration Statement (including each preliminary prospectus) and such
other documents as the Purchaser may reasonably require in order to facilitate
the disposition of the Registrable Securities held by the Purchaser;
(d) notify the Purchaser and its legal counsel within three (3)
business days after the same is filed with the SEC, or received by the Company,
of the filing or receipt of each letter written by or on behalf of the Company
to the SEC or the Staff of the SEC, and each item of correspondence from the SEC
or the Staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment);
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(e) register or qualify such Registrable Securities under such other
securities or blue sky laws of such states as may be reasonably required and do
any and all other acts and things which may be reasonably necessary or advisable
to enable the Purchaser to consummate the disposition of the Registrable
Securities in such jurisdictions (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(f) notify the Purchaser, at any time when a prospectus relating to
a Registration Statement is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus relating to a
Registration Statement contains an untrue statement of a material fact or omits
to state any material fact necessary to make the statements therein not
misleading, and as promptly as practicable prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchaser(s) of
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(g) effective not later than the effectiveness of a particular
Registration Statement, cause all Registrable Securities covered by such
Registration Statement to be listed for trading on the Trading Market on which
the Common Stock (or securities of such other class or series of Registrable
Securities, if any) is then listed, if any;
(h) as promptly as practicable after becoming aware of such event,
notify the Purchaser of the issuance by the SEC of any stop order or other
suspension of effectiveness of any Registration Statement and shall use its best
efforts to cause such Registration Statement to once again become effective at
the earliest possible time;
(i) cooperate with the Purchaser who holds Registrable Securities
being offered pursuant to a particular Registration Statement to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be offered pursuant to such
Registration Statement and enable such certificates to be in such denominations
or amounts as the Purchaser may reasonably request and registered in such names
as the Purchaser may request; and
(j) advise the Purchaser in writing as promptly as practical on the
date that a particular Registration Statement is declared effective by the SEC
(i) that the form of prospectus contained in the Registration Statement at the
time of effectiveness meets the requirements of Section 10(a) of the Act or (ii)
that it intends to file a prospectus pursuant to Rule 424(b) that meets the
requirements of Section 10(a) of the Act.
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4. Indemnification by the Company. The Company shall indemnify and hold
harmless the Purchaser and each of its respective directors, legal counsel and
accountants, and any underwriter (as defined in the Act) for any expenses,
claims, losses, costs, charges or liabilities of any kind, including amounts
paid in settlement and reasonable and documented attorneys' fees (collectively,
the "Losses") to which the Purchaser or any other such indemnified person
becomes subject, under the Act or any rule or regulation thereunder, insofar as
such Losses (a) are caused by any untrue statement or alleged untrue statement
of any material fact contained in any preliminary prospectus (if used prior to
the Effective Date of the Registration Statement), or contained, on the
Effective Date thereof, in any Registration Statement of which Registrable
Securities were the subject, the prospectus contained therein, any amendment or
supplement thereto, or (b) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (c) arise out of
any violation by the Company of the Act or any rule or regulation thereunder
applicable to the Company and relating to actions or omissions otherwise
required of the Company in connection with such Registration Statement. The
Company shall reimburse the Purchaser and any such other indemnified person for
any legal or other expenses reasonably incurred by the Purchaser or such other
indemnified person in connection with investigating, defending or settling any
such Loss; provided, however, that the Company shall not be liable to any such
Persons in any such case to the extent that any such Loss arises out of or is
based upon (a) any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
furnished to the Company in writing by such person expressly for inclusion in
any of the foregoing documents or (b) the use by the Purchaser of an outdated or
defective prospectus after the delivery to the Purchaser of written notice from
the Company that the prospectus is outdated or defective. This indemnity shall
not apply to amounts paid in settlement of any such Loss if such settlement is
effected without the consent of the Company.
5. Indemnification by the Purchaser. The Purchaser shall indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed a Registration Statement, legal counsel and accountants for the Company,
each person (if any) who controls the Company within the meaning of the Act and
any underwriter (as defined in the Act) for the Company, against any Losses to
which the Company or any other such indemnified person may become subject under
the Act or any rule or regulation thereunder or otherwise to the extent that
such Losses (or related actions) (a) are caused solely by any untrue statement
or alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the effective date of the Registration Statement),
or contained, on the Effective Date thereof, in any Registration Statement of
which the Purchaser's Registrable Securities were the subject, the prospectus
contained therein, any amendment or supplement thereto, or (b) arise out of or
are based solely upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
to the Company by the respective Purchaser, in writing, expressly for inclusion
in any of the foregoing documents; provided, however, that the aggregate
liability of the Purchaser shall not be greater than the net proceeds received
by the Purchaser upon the sale of the Registrable Securities giving rise to such
indemnification obligation. This indemnity shall not apply to amounts paid in
settlement of any such Loss or related Action if such settlement is effected
without the consent of the Purchaser.
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6. Additional Provisions.
(a) The Purchaser and each other person indemnified pursuant to
Section 4 above shall, in the event that it receives notice of the commencement
of any Action against it which is based upon an alleged act or omission which,
if proven, would result in the Company's having to indemnify it pursuant to
Section 4 above, promptly notify the Company, in writing, of the commencement of
such Action and permit the Company, if the Company so notifies the Purchaser or
other indemnified person within thirty (30) days after receipt by the Company of
notice of the commencement of the Action, to assume the defense of such Action
with counsel reasonably satisfactory to the Purchaser; provided, however, that
the Purchaser or other indemnified person shall be entitled to retain its own
counsel at its own expense. The omission to notify the Company promptly of the
commencement of any such Action shall not relieve the Company of any liability
to indemnify the Purchaser or such other indemnified person, as the case may be,
under Section 4 above, from and after the Company's receipt of such notice,
except to the extent that the Company shall suffer any Losses by reason of such
failure to give notice, and shall not relieve the Company of any other
liabilities which it may have under this or any other agreement.
(b) The Company and each other person indemnified pursuant to
Section 5 above shall, in the event that it receives notice of the commencement
of any Action against it which is based upon an alleged act or omission which,
if proven, would result in the Purchaser having to indemnify it pursuant to
Section 5 above, promptly notify the Purchaser or other indemnified person, in
writing, of the commencement of such Action and permit the Purchaser, if the
Purchaser so notifies the Company within thirty (30) days after receipt by the
Purchaser of notice of the commencement of the Action, to assume the defense of
such Action with counsel reasonably satisfactory to the Company; provided,
however, that the Company or other indemnified person shall be entitled to
retain its own counsel at the Company's expense. The omission to notify the
Purchaser promptly of the commencement of any such Action shall not relieve the
Purchaser of liability to indemnify the Company or such other indemnified
person, as the case may be, under Section 5 above, from and after the
Purchaser's receipt of such notice, except to the extent that the Purchaser
shall suffer any Losses by reason of such failure to give notice, and shall not
relieve the Purchaser of any other liabilities which it may have under this or
any other agreement.
(c) No indemnifying party, in the defense of any such Action, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such Action. Each indemnified
party shall furnish such information regarding itself or the Action in question
as an indemnifying party may reasonably request in writing and as shall be
reasonably required in connection with defense of such Action resulting
therefrom.
(d) If a court of competent jurisdiction determines that the
foregoing indemnity provided under Sections 4 and 5 above is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, but
also the relative fault of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
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7. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be given in accordance with
Section 5.2 of the Purchase Agreement.
8. Waiver and Amendment. No waiver, amendment or modification of this
Agreement or of any provision hereof shall be valid unless evidenced by a
writing duly executed by the Company and the Purchaser. No waiver of any default
hereunder shall be deemed a waiver of any other, prior or subsequent default
hereunder.
9. Governing Law. This Agreement shall be governed by, construed under and
interpreted and enforced in accordance with the laws of the State of New York,
without giving effect to principles of choice of law. Any Action arising out of
or relating to this Agreement shall be commenced in a federal or state court
having competent jurisdiction in the State of New York, and for the purpose of
any such Action, each of the parties and any assignees thereof submits to the
personal jurisdiction of the State of New York. The parties hereby irrevocably
consent to the exclusive personal jurisdiction of any state or federal court for
New York County in the State of New York or the Southern District of New York.
The parties hereby waive any objection to venue and any objection based on a
more convenient form in any Action instituted under this Agreement.
10. Captions. The captions and Section headings used in this Agreement are
for convenience only, and shall not affect the construction or interpretation of
this Agreement or any of the provisions hereof.
11. Entire Agreement. This Agreement, together with the Purchase Agreement
and the Certificate of Designations, constitutes the sole and entire agreement
and understanding between the parties hereto as to the subject matter hereof,
and supersedes all prior discussions, agreements and understandings of every
kind and nature between them as to such subject matter.
12. No Third Party Beneficiaries. Except as expressly provided herein,
this Agreement is not intended to confer upon any person other than the Company,
the Purchaser and their respective permitted successors, assigns and transferees
any rights or remedies hereunder.
13. Successors and Assigns. The Company may not sell, assign, transfer or
otherwise convey any of its rights or delegate any of its duties under this
Agreement, except to a corporation which has succeeded to substantially all of
the business and assets of the Company and has assumed in writing its
obligations under this Agreement, and this Agreement shall be binding on the
Company and such successor. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the Purchaser and its successors and
assigns. Without limiting the generality of the foregoing, any transferee of
Registrable Securities or who becomes a beneficial owner of Registrable
Securities shall have the rights set forth in this Agreement with respect to
such Registrable Securities, and such rights shall be enforceable against the
Company by such transferee, as if it were the Purchaser, from and after the date
the Purchaser or such transferee notifies the Company of such transfer. In
connection with any such transfer by the Purchaser, the Company shall confirm to
such assignee or transferee by written instrument, in such form as reasonably
requested by the Purchaser, that the Company accepts such assignment and
transfer and will perform its obligations under this Agreement for the benefit
of such transferee.
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14. Execution. This Agreement may be executed in two (2) or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
15. Term. This Agreement shall terminate upon the expiration of the
Registration Period; provided, however, that the parties' rights and obligations
under Sections 4 and 5 shall survive any termination of this Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the 7th day of November 2006.
EPOCH HOLDING CORPORATION
By:__/s/ Xxxxxxx X. Priest________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
GENERAL AMERICAN INVESTORS COMPANY, INC.
By:__/s/ Xxxxxxx Davidson___________________
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
