REGISTRATION RIGHTS AGREEMENT
by and
among
and
Starr
Investments Cayman II, Inc.
January
[•], 2010
TABLE OF
CONTENTS
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Page
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1.
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Definitions
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1
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2.
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Registration
Rights
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5
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2.1
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Demand
Registration
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5
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2.2
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Piggy-Back
Registration
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10
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3.
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Registration
Procedures
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11
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3.1
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Filings;
Information
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11
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3.2
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Obligation
to Suspend Distribution
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14
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3.3
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Registration
Expenses
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14
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3.4
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Information
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15
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4.
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Indemnification
and Contribution
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15
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4.1
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Indemnification
by the Company
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15
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4.2
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Indemnification
by Holders
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16
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4.3
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Conduct
of Indemnification Proceedings
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16
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4.4
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Contribution
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17
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5.
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Underwriting
and Distribution
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18
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5.1
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Rule
144
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18
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6.
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Miscellaneous
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18
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6.1
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Other
Registration Rights
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18
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6.2
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Assignment;
No Third Party Beneficiaries
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18
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6.3
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Notices
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19
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6.4
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Severability
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20
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6.5
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Counterparts
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20
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6.6
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Entire
Agreement
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20
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6.7
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Modifications
and Amendments
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20
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6.8
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Titles
and Headings
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20
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6.9
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Waivers
and Extensions
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20
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6.10
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Remedies
Cumulative
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20
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6.11
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Governing
Law
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21
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6.12
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Jurisdiction;
Enforcement
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21
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THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is
entered into as of the [·] day of [·] 2010, by and
among China MediaExpress Holdings, Inc., a Delaware corporation (the “Company”) and Starr
Investments Cayman II, Inc., a company organized with limited liability under
the laws of the Cayman Islands (the “Investor”). Any and
all capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such term in the Purchase Agreement (as defined
below).
WHEREAS,
the Company and the Investor are party to that certain Securities Purchase
Agreement, dated as of January 12, 2010 (the “Purchase Agreement”),
with various other parties set forth on the signature pages to the Purchase
Agreement, pursuant to which, the parties thereto agreed, among other things,
that the Company will sell to the Investor one million (1,000,000) shares of
Series A Preferred Stock, par value US$0.001 per share (the “Purchased Shares”)
and 1,545,455 warrants (the “Purchased Warrants”)
each entitling the Investor to purchase one share of Common Stock and the
Sponsor Shareholders agreed to arrange the transfer to the Investor of 150,000
shares of Common Stock (the “Transferred
Shares”).
WHEREAS,
the Company and the Investor desire to enter into this Agreement in order to,
among other things, reflect the registration rights to be provided to the
Investor in connection with the shares of Common Stock issuable upon conversion
of the Purchased Shares or exercise of the Purchased Warrants and to be
transferred to the Investors pursuant to the Purchase Agreement and the other
transactions contemplated in connection therewith.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
DEFINITIONS.
The following capitalized terms used herein have the following
meanings:
“Agreement” means this
Agreement, as amended, restated, supplemented, or otherwise modified from time
to time.
“Board” means the
Board of Directors of the Company.
“Business Day” means a
day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on
which banking institutions in New York, New York generally are authorized or
obligated by law, regulation or executive order to close.
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act, including the staff
thereof.
“Common Stock” means
the common stock, par value $0.001 per share, of the Company.
“Company” is defined
in the preamble to this Agreement.
“Demand Notice” is
defined in Section 2.1.1.
“Demand Registration”
is defined in Section 2.1.1.
“Effectiveness Default
Date” is defined in Section 2.1.4(iii).
“Effectiveness Period”
is defined in Section 2.1.2.
“Event” is defined in
Section 2.1.4.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“Filing Date” is
defined in Section 2.1.1.
“Filing Default Date”
is defined in Section 2.1.4(i).
“Form S-3” means such
form under the Securities Act as is in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
“Holder” or “Holders” means any
person or entity owning of record or having the right to acquire Registrable
Securities or any assignee of record thereof in accordance with Section 6.2
hereof or any assignee of record of such Registrable Securities to whom rights
set forth herein have been duly assigned in accordance with this
Agreement.
“Indemnified Party” is
defined in Section 4.3.
“Indemnifying Party”
is defined in Section 4.3.
2
“Investor” is defined
in the preamble to this Agreement.
“Investor Indemnified
Party” is defined in Section 4.1.
“Investor Rights
Agreement” means the Investor Rights Agreement dated as of the same day
of this Agreement by and among the Company, the Sponsor Shareholders and the
Investor.
“Lock-Up Period Expiration
Date” means the date of the one (1) year anniversary of the date
hereof.
“Majority-in-Interest”
is defined in Section 2.1.1.
“Maximum Number of
Securities” is defined in Section 2.2.2.
“Notices” is defined
in Section 6.3.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance upon Rule 430A
promulgated by the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
“register”, “registered” and
“registration”
mean a registration effected by preparing and filing a Registration Statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
3
“Registrable
Securities” mean all of the shares of Common Stock owned or held at any
time and from time to time by Investor and any securities issued or issuable to
the Investor upon any stock split, dividend, exchange, exercise, conversion or
other distribution, recapitalization or similar event with respect to the
foregoing or otherwise issued with respect to or in exchange for or in
replacement of such Registrable Securities. For the avoidance of
doubt, all (i) Transferred Shares and (ii) shares of Common Stock (x) issued
upon conversion of the Purchased Shares, (y) issued upon exercise of the
Purchased Warrants, or (y) acquired by or transferred to the Investor pursuant
to the Investor Rights Agreement shall be treated as Registrable Securities for
all purposes of this Agreement. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act or (c) such securities
shall have ceased to be outstanding, or (d) the Registrable Securities are
saleable without any volume or manner-of-sale restrictions under Rule 144 of the
Securities Act.
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of Common Stock (other
than a registration statement on Form S-4 or Form S-8, or their successors, or
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another entity).
“Required Effectiveness
Date” is defined in Section 2.1.4(ii).
“Rule 415” means Rule
415 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Rule 415 Interpretative
Position” means the then-current interpretation of the staff of the SEC
regarding the availability of Rule 415 for continuous or delayed offerings of
securities for the account of selling securityholders.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
4
“Subsequent Shelf
Registration” is defined in Section 2.1.5.
“Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s market-making
activities.
2. REGISTRATION
RIGHTS
2.1 Demand
Registration
2.1.1 Request for Registration.
At any
time and from time to time on or after the Lock-Up Period Expiration Date, upon
written notice (a “Demand Notice”) by
the Holders of a majority-in-interest (the “Majority-in-Interest”)
of the Registrable Securities, the Company shall prepare and file with the SEC a
Registration Statement covering the sale or distribution by the Holders,
including without limitation, by way of underwritten offering, block sale or
other distribution plan designated in the Demand Notice, of (a) up to all of the
Registrable Securities owned by such Holders, provided that such offering shall
result in net proceeds to the Holders of Registrable Securities sold in such
offering of at least $10 million, or (b) all of the Registrable Securities owned
by such Holders on a delayed or continuous basis pursuant to Rule 415 (except if
the Company is not then eligible or is not permitted under the Rule 415
Interpretative Position, to register for resale such Registrable Securities, in
which case such registration shall provide for the registration of such
Registrable Securities for resale by such Holders as are permitted under the
Rule 415 Interpretative Position (the “Demand Registration”)
on or prior to the date that is sixty (60) days from the date of the Demand
Notice (such date of actual filing, the “Filing
Date”). The Company shall use its reasonable best efforts to
cause such Demand Registration to be declared effective by the Commission as
promptly as possible after the filing thereof, but in any event within ninety
(90) days after the date such Demand Registration is filed.
2.1.2 Effectiveness
Period. Once declared effective, the Company shall, use its
reasonable best efforts to cause the Demand Registration to be continuously
effective until such time as there are no longer any Registrable Securities (the
“Effectiveness
Period”).
2.1.3 Effective
Registration. The Company shall request effectiveness of the
Registration Statement (and any post-effective amendments thereto) within two
(2) Business Days following the Company’s receipt of notice from the SEC that
the Registration Statement will not be reviewed by the SEC or that the SEC has
completed its review of such Registration Statement and has no further
comments. The Company shall request effectiveness of the Registration
Statement (and any post-effective amendments thereto) at 5:00 p.m., Eastern
time, on the effectiveness date and use its reasonable best efforts to deliver
the Prospectus (or any supplements thereto), which delivery may be made
electronically, on the first Business Day after such effective
date.
5
2.1.4 Liquidated Damages.
Upon the
occurrence of any Event (as defined below), as partial relief for the damages
suffered therefrom by the Holders (which remedy shall not be exclusive of any
other remedies which are available at law or in equity; and provided further
that the Holders shall be entitled to pursue an action for specific performance
of the Company’s obligations under this Section 2), the Company shall pay to
each Holder, as liquidated damages and not as a penalty (it being agreed that it
would not be feasible to ascertain the extent of such damages with precision),
such amounts and at such times as shall be determined pursuant to this Section
2.1.4. For such purposes, each of the following shall constitute an
“Event”:
(i) the
Filing Date does not occur on the date sixty (60) days after the date of the
Demand Notice (the “ Filing Default Date
“), in which case the Company shall pay to each Holder an amount in cash equal
to: (A) for the first 30-day period following such Filing Default Date or any
portion thereof until the Filing Date, one and one half percent (1.5%) of the
aggregate purchase price paid by such Holder as set forth on Section 2 of the
Purchase Agreement (or the Person for whom such Holder directly or indirectly
acquired the Registrable Securities pursuant to Section 6.2 of this Agreement),
on a pro-rata basis for
any portion of such 30-day period, to be paid at the end of such 30-day period;
and (B) for each successive 30-day period thereafter or any portion thereof
until the Filing Date, one and one half percent (1.5%) of such aggregate
purchase price paid by such Holder (or the Person for whom such Holder directly
or indirectly acquired the Registrable Securities), on a pro-rata basis for any
portion of such 30-day period, to be paid at the end of each 30-day
period;
(ii) the
Registration Statement is not declared effective on or prior to the date that is
one hundred fifty (150) days after the date of the Demand Notice (the “Required Effectiveness
Date”), in which case the Company shall pay to each Holder an amount in
cash equal to: (A) for the first 30 days after such one hundred and fiftieth
(150th ) day
or any portion thereof until the Registration Statement is deemed effective, one
and one half percent (1.5%) of the aggregate purchase price paid by such Holder
as set forth on Section 2 of the Purchase Agreement (or the Person from whom
such Holder directly or indirectly acquired the Registrable Securities pursuant
to Section 6.2 of this Agreement), on a pro-rata basis for any portion of such
30-day period, to be paid at the end of such 30-day period; and (B) for
each successive 30-day period thereafter or any portion thereof until the
Registration Statement is deemed effective, one and one half percent (1.5%) of
such aggregate purchase price paid by such Holder (or the Person from whom such
Holder directly or indirectly acquired the Registrable Securities), on a
pro-rata basis for any portion of such 30-day period, at the end of each 30-day
period; and
6
(iii) once
declared effective, the use of the Prospectus and the Registration Statement is
suspended by order of the Commission or notice by the Company or the Prospectus
is not current, except as expressly permitted by Section 3.1.1 (the “Effectiveness Default
Date”), in which case the Company shall pay to each Holder an amount in
cash equal to: (A) for the first 30 days after such Effectiveness Default Date
or any portion thereof until withdrawal of any order suspending the
effectiveness of the Registration Statement or the Prospectus is corrected or
use of the Prospectus and the Registration Statement otherwise is again
permitted by the Company, one and one half percent (1.5%) of the aggregate
purchase price paid by such Holder as set forth on Section 2 of the Purchase
Agreement (or the Person from whom such Holder directly or indirectly
acquired the Registrable Securities pursuant to Section 6.2 of this Agreement),
on a pro-rata basis for any portion of such 30-day period, to be paid at the end
of such 30-day period; and (B) for each successive 30-day period thereafter
until withdrawal of any order suspending the effectiveness of the Registration
Statement or the Prospectus is corrected or use of the Prospectus and the
Registration Statement otherwise is again permitted by the Company, one and one
half percent (1.5%) of such aggregate purchase price paid by such Holder (or the
Person from whom such Holder directly or indirectly acquired the Registrable
Securities), on a pro-rata basis for any portion of such 30-day period, at the
end of each 30-day period.
The
payment obligations of the Company under this Section 2.1.4 shall be
cumulative. Notwithstanding any other provision of this Agreement,
(1) no payment shall be required pursuant to this Section 2.1.4 with respect to
any time period during which the Company is allowed pursuant to Section 3.1.1 to
refuse to file any Registration Statement covering any Registrable Securities,
to refuse to cause the effectiveness of any such Registration Statement or to
suspend the use of any such Registration Statement or related Prospectus, (2) no
payment shall be required to be made to any Holder pursuant to this Section
2.1.4 with respect to any time period during which such Holder does not intend
to sell Registrable Securities or has agreed with the Company not to do so, (3)
no liquidated damages shall accrue with respect to Registrable Securities
consisting of Purchased Warrants and (4) aggregate liquidated damages
payable by the Company pursuant to this provision shall not exceed ten percent
(10.0%) of the Holder’s initial investment in the Purchased Shares.
2.1.5 Subsequent Shelf
Registration. If any
Shelf Registration ceases to be effective under the Securities Act for any
reason at any time during the Effectiveness Period, the Company shall use its
reasonable best efforts to promptly cause such Shelf Registration to again
become effective under the Securities Act (including obtaining the prompt
withdrawal of any order suspending the effectiveness of such Shelf
Registration), and in any event shall use its reasonable best efforts to, within
sixty (60) days of such cessation of effectiveness, amend such Shelf
Registration in a manner reasonably expected to obtain the withdrawal of any
order suspending the effectiveness of such Shelf Registration or (ii) at the
option of the Company, file an additional Registration Statement (a “Subsequent Shelf
Registration”) for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
time to time by Holders thereof of all securities that are Registrable
Securities as of the time of such filing. If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to (x)
cause such Subsequent Shelf Registration to become effective under the
Securities Act as promptly as is reasonably practicable after such filing, but
in no event later than the date that is ninety (90) days after such Subsequent
Shelf Registration is filed and (y) keep such Subsequent Shelf Registration (or
another Subsequent Shelf Registration) continuously effective until the end of
the Effectiveness Period. Any such Subsequent Shelf Registration
shall be a Registration Statement on Form S-3 to the extent that the Company is
eligible to use such form. Otherwise, such Subsequent Shelf
Registration shall be on another appropriate form and shall provide for the
registration of such Registrable Securities for resale by such Holders in
accordance with any reasonable method of distribution elected by the
Holders.
7
2.1.6 Supplement and
Amendment. The
Company shall supplement and amend any Demand Registration or any Subsequent
Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such registration if
required by the Securities Act or as reasonably requested by the Holders covered
by such registration.
2.1.7 Reduction of
Offering. If a
Demand Notice delivered in accordance with Section 2.1.1 specifies that the sale
of the Registrable Securities is intended to be conducted through an
underwritten offering, the Holders of a majority of Registrable Securities
included in such Demand Notice shall have the right to select the managing
underwriter or underwriters to administer the offering; provided , however ,
that such managing underwriter or underwriters shall be reasonably acceptable to
the Company. The Holders included in such Demand Notice and the
Company shall enter into an underwriting agreement in such customary form as
shall have been negotiated and agreed to by the Company with the underwriter or
underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 2.1, if the managing underwriter or underwriters
of a proposed underwritten offering of the Registrable Securities advise the
Board that in its or their good faith opinion the number of Registrable
Securities requested to be included in such Registration Statement and all other
securities proposed to be sold in the offering contemplated thereby exceeds the
number which can be sold in such underwritten offering in light of market
conditions, the Registrable Securities and such other securities to be included
in such underwritten Registration Statement shall be allocated, (i) first, up to
the total number of securities the Holders have requested to be included in such
Registration Statement ( pro-rata based upon the number of securities that each
of them shall have requested to be included in such offering), (ii) and only if
all the securities referred to in clause (i) have been included, the number of
securities that the Company and other holders have proposed to include in such
Demand Registration that, in the opinion of the managing underwriter or
underwriters can be sold without having such adverse effect. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the managing underwriter
or underwriters. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
2.1.8 The
Company shall not be required to effect a registration pursuant to this Section
2.1:
8
(i) if
the Company has effected a registration pursuant to this Section 2.1 within the
preceding six (6) months, and such registration has been declared or ordered
effective;
(ii) during
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of the filing of, and ending on a date one hundred
eighty (180) days following the effective date of, a Company-initiated
registration subject to Section 2.1, provided that the Company is actively
employing in good faith reasonable best efforts to cause such Registration
Statement to become effective (other than a registration relating to the
issuance or sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or to an acquisition or other transaction
to which Rule 145 under the Securities Act is applicable);
(iii) if
the Company shall furnish to Holders requesting a registration pursuant to this
Section 2.1, a certificate signed by the Company’s Chief Executive Officer or
Chairman of the Board stating that in the good faith judgment of the Board, it
would be materially detrimental to the Company and its stockholders for such
registration to be effected at such time because the sale of Registrable
Securities covered by such registration or the disclosure of information therein
or in any related Prospectus or Prospectus supplement would materially interfere
with a transaction or development involving the Company for sales of
Registrable Securities thereunder to then be permitted, and setting forth in
general terms the reasons for such determination, in which event the Company
shall have the right to defer such filing for a period of not more than thirty
(30) days after receipt of the request of the Holders, provided that such right
to delay a request shall be exercised by the Company not more than once in any
twelve (12)-month period and provided, further, that the Company shall not
register any other capital stock during such thirty (30) day period (other than
a registration relating to the issuance or sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar plan or to an
acquisition or other transaction to which Rule 145 under the Securities Act is
applicable); or
(iv)
in any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration, unless
the Company is already subject to service in such jurisdiction and except as may
be required under the Securities Act.
9
2.2 Piggy-Back
Registration
2.2.1 Piggy-Back
Rights. If at any
time on or after the Lock-Up Period Expiration Date, there is not an effective
Registration statement covering all of the Registrable Securities and the
Company proposes to file a Registration Statement under the Securities Act with
respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the
Company for its own account or for stockholders of the Company for their
account, other than a Registration Statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or
offering of securities solely to the Company’s existing stockholders, (iii) for
an offering of debt that is convertible into equity securities of the Company or
(iv) for a dividend reinvestment plan, then the Company shall (x) give written
notice of such proposed filing to the Holders as soon as practicable but in no
event less than ten (10) days before the anticipated filing date, which notice
shall describe the amount and type of securities to be included in such
offering, the intended method(s) of distribution, and the name of the proposed
managing Underwriter or Underwriters, if any, of the offering, and (y) offer to
the Holders in such notice the opportunity to register the sale of such number
of Registrable Securities as such Holders may request in writing within ten (10)
days following receipt of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use its reasonable best efforts to cause
the managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution
thereof. All Holders proposing to distribute their securities through
a Piggy-Back Registration that involves an Underwriter or Underwriters shall
enter into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
2.2.2 Reduction of
Offering. If the
managing Underwriter or Underwriters for a Piggy-Back Registration that is to be
an underwritten offering advises the Company and the Holders in writing that the
dollar amount or number of securities which the Company desires to sell, taken
together with shares of Common Stock or other securities, if any, as to which
registration has been demanded pursuant to written contractual arrangements with
persons other than the Holders hereunder, the Registrable Securities as to which
registration has been requested under this Section 2.2, and the shares of Common
Stock or other securities, if any, as to which registration has been requested
pursuant to the written contractual piggy-back registration rights of other
stockholders of the Company, exceeds the number which can be sold in such
underwritten offering in light of market conditions (the “Maximum Number of
Securities”), then the Company shall include in any such
registration:
(i) If
the registration is undertaken for the Company’s account: (A) first, the shares
of Common Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Securities; (B) second, to the
extent that the Maximum Number of Securities has not been reached under the
foregoing clause (A) (x) the shares of Common Stock or other securities, if any,
that are Registrable Securities, as to which registration has been requested
by the Holders pursuant to the terms hereof, and (y) the shares of Common
Stock or other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual piggy-back registration
rights with such persons, on a pro rata basis, that can be sold without
exceeding the Maximum Number of Securities; and
10
(ii) If
the registration is a “demand” registration undertaken at the demand of persons
other than the Holders pursuant to written contractual arrangements with such
persons, (A) first, (x) the shares of Common Stock or other securities for the
account of the demanding persons, (y) the shares of Common Stock or other
securities comprised of Registrable Securities as to which registration has been
requested pursuant to the terms hereof, and (z) the shares of Common Stock or
other securities for the account of other persons that the Company is obligated
to register pursuant to written contractual arrangements with such persons, on a
pro rata basis, that can be sold without exceeding the Maximum Number of
Securities; and (B) second, to the extent that the Maximum Number of Securities
has not been reached under the foregoing clause (A), the shares of Common Stock
or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Securities.
2.2.3 Withdrawal. Any
Holder may elect to withdraw such Holder’s request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own determination
or as the result of a withdrawal by persons making a demand pursuant to written
contractual obligations) may withdraw a registration statement at any time prior
to the effectiveness of the Registration Statement. Notwithstanding
any such withdrawal, the Company shall pay all expenses incurred by the Holders
in connection with such Piggy-Back Registration as provided in Section
3.3.
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3.
|
REGISTRATION
PROCEDURES
|
3.1 Filings;
Information.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2, the Company shall use its reasonable best
efforts to effect the registration and sale of such Registrable Securities in
accordance with the intended method(s) of distribution thereof as expeditiously
as practicable, and in connection with any such request:
3.1.1 Filing Registration
Statement. The
Company shall in accordance with the applicable provisions of this Agreement
prepare and file with the Commission a Registration Statement on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of all Registrable
Securities to be registered thereunder in accordance with the intended method(s)
of distribution thereof, and shall use its reasonable best efforts to cause such
Registration Statement to become and remain effective until the Registrable
Securities registered thereunder have been sold, provided, however, that the
Company shall have the right to suspend the use of the Registration Statement
for up to thirty (30) days, if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer or Chairman of the Board
stating that, in the good faith judgment of the Board, it would be materially
detrimental to the Company and its stockholders for such Registration Statement
to be effected at such time; provided further, however, that the Company shall
not have the right to exercise the right set forth in the immediately preceding
proviso more than once in any 365-day period in respect of a registration
hereunder.
11
3.1.2 Copies.
The
Company shall, prior to filing a Registration Statement or Prospectus, or any
amendment or supplement thereto, furnish without charge to the Holders included
in such registration, and such Holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to
such Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and such other
documents as the Holders included in such registration or legal counsel for any
such Holders may request in order to facilitate the disposition of the
Registrable Securities owned by such Holders.
3.1.3 Amendments and
Supplements. The
Company shall prepare and file with the Commission such amendments, including
post-effective 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 in compliance with the provisions of the
Securities Act until all Registrable Securities and other securities covered by
such Registration Statement have been disposed of in accordance with the
intended method(s) of distribution set forth in such Registration Statement or
such securities have been withdrawn.
3.1.4 Notification.
After the
filing of a Registration Statement, the Company shall promptly, and in no event
more than two (2) Business Days after such filing, notify the Holders included
in such Registration Statement of such filing, and shall further notify such
Holders promptly and confirm such advice in writing in all events within two (2)
Business Days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) the issuance or
threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove
it if entered); and (iv) any request by the Commission for any amendment or
supplement to such Registration Statement or any Prospectus relating thereto or
for additional information or of the occurrence of an event requiring the
preparation of a supplement or amendment to such Prospectus so that, as
thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such Prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly make
available to the Holders included in such Registration Statement any such
supplement or amendment; except that before filing with the Commission a
Registration Statement or Prospectus or any amendment or supplement thereto,
including documents incorporated by reference, the Company shall furnish to the
Holders included in such Registration Statement and to the legal counsel for any
such Holders, copies of all such documents proposed to be filed sufficiently in
advance of filing to provide such Holders and legal counsel with a reasonable
opportunity to review such documents and comment thereon, and the Company shall
not file any Registration Statement or Prospectus or amendment or supplement
thereto, including documents incorporated by reference, to which such Holders or
their legal counsel shall object.
3.1.5 State Securities Laws
Compliance. The
Company shall use its reasonable best efforts to (i) register or qualify the
Registrable Securities covered by the Registration Statement under such
securities or “blue sky” laws of such jurisdictions in the United States as the
Holders included in such Registration Statement (in light of their intended plan
of distribution) may request and (ii) take such action necessary to cause such
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other Governmental Authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the Holders
included in such Registration Statement to consummate the disposition of such
Registrable Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph or subject itself to taxation in any such
jurisdiction.
12
3.1.6 Agreements for
Disposition. The
Company shall enter into customary agreements (including, if applicable, an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities. The representations, warranties and covenants
of the Company in any underwriting agreement which are made to or for the
benefit of any Underwriters, to the extent applicable, shall also be made to and
for the benefit of the Holders included in such registration
statement. No Holder included in such registration statement shall be
required to make any representations or warranties in the underwriting agreement
except, if applicable, with respect to such Holder’s organization, good
standing, authority, title to Registrable Securities, lack of conflict of such
sale with such Holder’s material agreements and organizational documents, and
with respect to written information relating to such Holder that such Holder has
furnished in writing expressly for inclusion in such Registration Statement. The
Holders shall agree to such covenants and indemnification and contribution
obligations for selling stockholders as are customarily contained in agreements
of that type. Further, such Holders shall cooperate fully in the
preparation of the Registration Statement and other documents relating to any
offering in which they include securities pursuant to Section 2
hereof. Each Holder shall also furnish to the Company such
information regarding itself, the Registrable Securities held by such Holder, as
applicable, and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of the Registrable
Securities.
3.1.7 Cooperation.
The Chief
Executive Officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all
other offering materials and related documents, and participation in meetings
with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records.
The
Company shall make available for inspection by the Holders included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
professional retained by any Holder included in such Registration Statement or
any Underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, as shall be necessary to enable them to exercise
their due diligence responsibility, and cause the Company’s officers, directors
and employees to supply all information requested by any of them in connection
with such Registration Statement.
13
3.1.9 Opinions and Comfort
Letters. The
Company shall furnish to each Holder included in any Registration Statement a
signed counterpart, addressed to such holder, of (i) any opinion of counsel to
the Company delivered to any Underwriter and (ii) any comfort letter from the
Company’s independent public accountants delivered to any
Underwriter. In the event no legal opinion is delivered to any
Underwriter, the Company shall furnish to each Holder included in such
Registration Statement, at any time that such Holder elects to use a Prospectus,
an opinion of counsel to the Company to the effect that the Registration
Statement containing such Prospectus has been declared effective and that no
stop order is in effect.
3.1.10 Earnings
Statement. The
Company shall comply with all applicable rules and regulations of the Commission
and the Securities Act, and make available to its stockholders, as soon as
practicable, an earnings statement covering a period of twelve (12) months,
beginning within three (3) months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder.
3.1.11 Listing.
The
Company shall use its reasonable best efforts to cause all Registrable
Securities included in any registration to be listed on such exchanges or
otherwise designated for trading in the same manner as similar securities issued
by the Company are then listed or designated or, if no such similar securities
are then listed or designated, in a manner satisfactory to the Holders of a
Majority-in-Interest of the Registrable Securities included in such
registration.
3.2 Obligation to Suspend
Distribution.
Upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3.1.4(iv), pursuant to a written xxxxxxx xxxxxxx
compliance program adopted by the Board, of the ability of all “insiders”
covered by such program to transact in the Company’s securities because of the
existence of material non-public information, each Holder included in any
registration shall immediately discontinue disposition of such Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder receives the supplemented or amended Prospectus
contemplated by Section 3.1.4(iv) or the restriction on the ability of
“insiders” to transact in the Company’s securities is removed, as applicable,
and, if so directed by the Company, each such Holder will deliver to the Company
all copies, other than permanent file copies then in such Holder’s possession,
of the most recent Prospectus covering such Registrable Securities at the time
of receipt of such notice.
3.3 Registration
Expenses
The Company shall bear all costs and expenses incurred in connection with any
Demand Registration pursuant to Section 2.1 and any Piggy-Back Registration
pursuant to Section 2.2, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees; (ii) fees and expenses of compliance with securities or “blue
sky” laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities); (iii) printing expenses; (iv)
the Company’s internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration and (ix) the fees
and expenses of one legal counsel selected by the Holders of a
Majority-in-Interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any
underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the Holders thereof, which underwriting discounts or
selling commissions shall be borne by such Holders. Additionally, in an
underwritten offering, all selling stockholders and the Company shall bear the
expenses of the underwriter pro rata in proportion to the respective amount of
shares each is selling in such offering.
14
3.4 Information.
The Holders shall provide such information as may reasonably be requested by the
Company, or the managing Underwriter, if any, in connection with the preparation
of any Registration Statement, including amendments and supplements thereto, in
order to effect the registration of any Registrable Securities under the
Securities Act pursuant to Section 2 and in connection with the Company’s
obligation to comply with federal and applicable state securities
laws. If any such Holder fails to furnish such requested information
within seven Business Days of the Company’s request, the Company shall furnish
written notice of such non-compliance to such Holder. If, for a
period of three Business Days after such notice is given, such Holder continues
to fail to furnish such requested information, then the Company shall have no
obligation to pay any liquidated damages to such Holder with respect to any
Event occurring with respect to such registration.
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4.
|
INDEMNIFICATION AND
CONTRIBUTION.
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4.1 Indemnification by the
Company.
The Company agrees to indemnify and hold harmless each Holder, and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents, and each person, if any, who controls a Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
(each, an “Investor
Indemnified Party”), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material
fact contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any preliminary
Prospectus, final Prospectus or summary Prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Investor
Indemnified Party for any legal and any other expenses reasonably incurred by
such Investor Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action, as such
expense are incurred and within thirty (30) days after a request for
reimbursement has been received by the Company; provided, however, that the
Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based (i) upon any
untrue statement or allegedly untrue statement or omission or alleged omission
made in such Registration Statement, preliminary Prospectus, final Prospectus,
or summary Prospectus, or any such amendment or supplement, in reliance upon and
in conformity with information furnished to the Company, in writing, by such
selling Holder expressly for use therein, (ii) in the case of an occurrence of
an event of the type specified in Section 3.1.4(iv), the use by such Holder of
an outdated or defective Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated or defective and prior to the receipt
by such Holder of advice from the Company that such Prospectus is no longer
outdated or defective. The Company also shall indemnify any Underwriter of the
Registrable Securities, their officers, affiliates, directors, partners, members
and agents and each person who controls such Underwriter on substantially the
same basis as that of the indemnification provided above in this Section
4.1.
15
4.2 Indemnification by
Holders.
Each selling Holder will, in the event that any registration is being effected
under the Securities Act pursuant to this Agreement of any Registrable
Securities held by such selling Holder, indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any), and each other
selling Holder and each other person, if any, who controls another selling
holder or such underwriter within the meaning of the Securities Act, against any
losses, claims, judgments, damages or liabilities, whether joint or several,
insofar as such losses, claims, judgments, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
allegedly untrue statement of a material fact contained in any Registration
Statement under which the sale of such Registrable Securities was registered
under the Securities Act, any preliminary Prospectus, final Prospectus or
summary Prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such selling Holder expressly
for use therein, and shall reimburse the Company, its directors and officers,
and each other selling Holder or controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigation or
defending any such loss, claim, damage, liability or action. Each
selling Holder’s indemnification obligations hereunder shall be several and not
joint and shall be limited to the amount of any net proceeds actually received
by such selling Holder from the sale of Registrable Securities which gave rise
to such indemnification obligation.
4.3 Conduct of Indemnification
Proceedings.
Promptly after receipt by any person of any notice of any loss, claim, damage or
liability or any action in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2, such person (the “Indemnified Party”)
shall, if a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the “Indemnifying Party”)
in writing of the loss, claim, judgment, damage, liability or action; provided,
however, that the failure by the Indemnified Party to notify the Indemnifying
Party shall not relieve the Indemnifying Party from any liability which the
Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such
failure. If the Indemnified Party is seeking indemnification with
respect to any claim or action brought against the Indemnified Party, then the
Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume control of the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the
Indemnified Party of its election to assume control of the defense of such claim
or action, the Indemnifying Party shall not be liable to the Indemnified Party
for any legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if, based upon the written opinion of counsel of such
Indemnified Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, consent to entry of judgment or effect any settlement
of any claim or pending or threatened proceeding in respect of which the
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such claim or proceeding.
16
4.4 Contribution
4.4.1 If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any
Indemnifying Party 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 such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
4.4.2 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section
4.4.1.
4.4.3 The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no Holder shall be required to contribute any
amount in excess of the dollar amount of the net proceeds (after payment of any
underwriting fees, discounts, commissions or taxes) actually received by such
Holder from the sale of Registrable Securities which gave rise to such
contribution obligation. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
17
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5.
|
UNDERWRITING AND
DISTRIBUTION
|
5.1 Rule 144.
The Company covenants that it shall file any reports required to be filed by it
under the Securities Act and the Exchange Act and shall take such further action
as the Holders may reasonably request, all to the extent required from time to
time to enable such Holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 under the Securities Act, as such Rules may be amended from time to
time, or any similar Rule or regulation hereafter adopted by the
Commission.
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6.
|
MISCELLANEOUS
|
6.1 Other Registration
Rights.
Except with respect to (i) those securities issued or issuable upon exercise of
the Unit Purchase Options, (ii) all of the shares of Common Stock owned or held
by the investors party to that certain Registration Rights Agreement dated as of
October 17, 2007, and (iii) all of the shares of Common Stock owned or held by
the investors party to that certain Registration Rights Agreement dated as of
October 15, 2009, the Company represents and warrants that no person, other
than a holder of the Registrable Securities, has any right to require the
Company to register any shares of the Company’s capital stock for sale or to
include shares of the Company’s capital stock in any registration filed by the
Company for the sale of shares of capital stock for its own account or for the
account of any other person.
6.2 Assignment; No Third Party
Beneficiaries.
This Agreement and the rights, duties and obligations of the Company
hereunder may not be assigned or delegated by the Company in whole or in part.
This Agreement and the rights, duties and obligations of the Holders hereunder
may be freely assigned or delegated by such Holder in conjunction with and to
the extent of any transfer of Registrable Securities by any such
Holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and their respective
successors and the permitted assigns of the Investor or Holder or of any
assignee of the Investor or Holder. This Agreement is not intended to
confer any rights or benefits on any persons that are not party hereto other
than as expressly set forth in Article 4 and this Section 6.2. If any
of the Registrable Securities are transferred or assigned by a Holder other than
pursuant to an effective Registration Statement, then, upon request by the
transferring Holder, the Company shall use its reasonably best efforts (at the
earliest opportunity practicable) to enable such transferee or assignee to
resell such transferred or assigned Registrable Securities using the
Registration Statement filed and made effective pursuant to this Agreement and
the related Prospectus by filing a post-effective amendment or Prospectus
supplement, naming such transferee or assignee as a selling shareholder under
such Registration Statement and Prospectus.
18
6.3 Notices. All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”) required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile; provided, that if such service or transmission is not on a business
day or is after normal business hours, then such notice shall be deemed given on
the next business day. Notice otherwise sent as provided herein shall
be deemed given on the next business day following timely delivery of such
notice to a reputable air courier service with an order for next-day
delivery.
|
if
to the Company:
|
China
MediaExpress Holdings, Inc
Xxxx
0000
Xxxxxxx
Xxxxx
Xxxxxxx,
Xxxx Xxxx
Attention:
Xxxxx Xxxxx and Xxxxx Xxx
Facsimile:
x000.0000.0000
|
|
with
a copy to:
|
Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxxx X. Xxxxxxxx / Xxxxx X. Xxxxxxxx
Facsimile:
x0.000.000.0000
|
|
if
to the Investor:
|
Starr
Investments Cayman II, Inc.
Xxxxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx, 0xx Xxxxx
19
Par la Xxxxx Xxxx
Xxxxxxxx
XX 00
Xxxxxxx
Xxxxxxxxx:
Xxxxxx Xxxxxxxx / Xxxxx Xxxxxxx
|
|
with
a copy to:
|
Starr
Investments Cayman II, Inc.
c/o
Beijing X.X. Xxxxx Investment Advisors Limited Xxxxxxxx
Xxxxxx
Xxxxx
0000-0000X, Xxxxx XX, Xxxxx 66,
1266
Nanjing Xxxx Xxxx,
Xxxxxxxx
000000 Xxxxxx'x Xxxxxxxx of China
Attention:
Xxxx Xxx / Xxxxxxx Xxxx
Facsimile:
+8621.6288.9773
|
19
|
with
a copy to:
|
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
30th
Floor, Tower 2, China World Trade Centre
Xx.
0 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx
000000 People’s Republic of China
Attention: Xxx
X Xxxxxxxxxxxx
Facsimile: +8610.6535.5577
|
6.4 Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability
of any term or provision hereof shall not affect the validity or enforceability
of this Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible that is valid and
enforceable.
6.5 Counterparts.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute
one and the same instrument.
6.6 Entire
Agreement.
This Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.7 Modifications and
Amendments. No
amendment, modification or termination of this Agreement shall be binding upon
any party unless executed in writing by such party.
6.8 Titles and
Headings.
Titles and headings of Sections of this Agreement are for convenience only and
shall not affect the construction of any provision of this
Agreement.
6.9 Waivers and
Extensions. Any
party to this Agreement may waive any right, breach or default which such party
has the right to waive, provided that such waiver will not be effective against
the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance
or after the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any breach of
any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10 Remedies
Cumulative.
In the event that the Company fails to observe or perform any covenant or
agreement to be observed or performed under this Agreement, the Investor or any
other Holder may proceed to protect and enforce its rights by suit in equity or
action at law, whether for specific performance of any term contained in this
Agreement or for an injunction against the breach of any such term or in aid of
the exercise of any power granted in this Agreement or to enforce any other
legal or equitable right, or to take any one or more of such actions, without
being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or
remedy shall be cumulative and in addition to any other right, power or remedy,
whether conferred by this Agreement or now or hereafter available at law, in
equity, by statute or otherwise.
20
6.11 Governing
Law.
This Agreement shall be governed in all respects by the laws of the State of
State of Delaware without regard to any choice of laws or conflict of laws
provisions that would require the application of the laws of any other
jurisdiction.
6.12 Jurisdiction;
Enforcement.
The parties agree that irreparable damage would occur if any of the provisions
of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that each of the
parties shall be entitled (in addition to any other remedy that may be available
to it, including monetary damages) to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement exclusively in the Delaware Court of Chancery and any state
appellate court therefrom within the State of Delaware (or, if the Delaware
Court of Chancery declines to accept jurisdiction over a particular matter, any
state or federal court within the State of Delaware). In addition, each of the
parties irrevocably agrees that any legal action or proceeding with respect to
this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the
rights and obligations arising hereunder brought by the other party or its
successors or assigns, shall be brought and determined exclusively in the
Delaware Court of Chancery and any state appellate court therefrom within the
State of Delaware (or, if the Delaware Court of Chancery declines to accept
jurisdiction over a particular matter, any state or federal court within the
State of Delaware). Each of the parties hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than the aforesaid courts. Each party hereby consents to
service being made through the notice procedures set forth in Section 6.3 and
agrees that service of any process, summons, notice or document by registered
mail (return receipt requested and first−class postage prepaid) to the
respective addresses set forth in Section 6.3 shall be effective service of
process for any suit or proceeding in connection with this Agreement or the
transactions contemplated by this Agreement.
21
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to
be executed and delivered by their duly authorized representatives as of the
date first written above.
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By:
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Name:
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Title:
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STARR
INVESTMENTS CAYMAN II, INC.
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By:
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Name:
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Title:
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