REGISTRATION RIGHTS AGREEMENT
Exhibit 4.5
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the
27th day of November 2007, by and among Global Consumer Acquisition Corp., a Delaware
corporation (the “Company”), and the undersigned parties listed under Investors on the signature
page hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company; and
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of (i) shares of Common Stock; (ii)
Warrants; and (iii) shares of Common Stock underlying Warrants.
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:
I 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.
“Commission” means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Effective Date” means the date on which the initial public offering of securities of the
Company is declared effective by the Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Form S-3” is defined in Section 2.3.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor” is defined in the preamble to this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Majority-in-interest” of Registrable Securities means a majority of the shares of Common
Stock and shares of Common Stock underlying the Warrants included in the Registrable Securities.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“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.
“Registrable Securities” mean all of (i) the shares of Common Stock owned or held by
Investors; (ii) the Warrants; and (iii) the shares of Common Stock issuable upon exercise of the
Warrants. Registrable Securities include any warrants, shares of capital stock or other securities
of the Company issued as a dividend or other distribution with respect to or in exchange for or in
replacement of such Registrable Securities. 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;
(c) such securities may be sold by the Investor without restriction; (d) such securities shall have
ceased to be outstanding; or (e) the Commission makes a definitive determination to the Company
that the Registrable Securities are saleable under Rule 144(k).
“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 any successor forms, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of another entity).
“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.
“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.
“Warrants” means the warrants to purchase an aggregate of 8,500,000 shares of Common Stock
issued by the Company to certain Investors prior to the close hereof in connection with a private
placement pursuant to (1) Warrant Subscription Agreement dated as of October 1, 2007 between the
Company and Xxxxx XxXxxxx and (2) Warrant Subscription Agreement dated as of July 19, 2007 between
the Company and Hayground Cove Asset Management LLC, as amended.
II REGISTRATION RIGHTS.
A Demand Registration.
1 Request for Registration. At any time and from time to time beginning on or
after the Effective Date, the holders of a Majority-in-interest of the Registrable
Securities held by the Investors or the transferees of the Investors, may make a written
demand for registration under the Securities Act of all or part of their Registrable
Securities (a “Demand Registration”). Any demand for a Demand Registration shall specify the
number and type of Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all holders of Registrable Securities of the
demand, and each holder of Registrable Securities who wishes to include all or a portion of
such holder’s Registrable Securities in the Demand Registration (each such holder including
Registrable Securities in such Demand Registration, a “Demanding Holder”) shall so notify
the Company within fifteen (15) days after the receipt by the holder of the notice from the
Company. Upon any such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to Sections 2.1.3, 2.1.4
and 3.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to
effect more than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in
respect of Registrable Securities.
2 Effective Registration. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with respect to such
Demand Registration has been declared effective and the Company has complied with all of its
obligations under this Agreement with respect thereto; provided, however, that, if after
such Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to a Demand Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the Registration
Statement with respect to such Demand Registration will be deemed not to have been declared
effective, unless and until (i) such stop order or injunction is removed, rescinded or
otherwise terminated, and (ii) a Majority-in-interest of the Demanding Holders thereafter
elect to continue the offering; provided, further, that the Company shall not be obligated
to file a second Registration Statement until a Registration Statement that has been filed
is counted as a Demand Registration or is terminated.
3 Underwritten Offering. If a Majority-in-interest of the Demanding Holders so
elect and such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten offering. In such event,
the right of any holder of Registrable Securities to include its Registrable Securities in
such registration shall be conditioned upon such holder’s participation in such underwriting
and the inclusion of such holder’s Registrable Securities in the underwriting to the extent
provided herein. All Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with the
Underwriter or Underwriters selected for such underwriting by a Majority-in-interest of the
holders initiating the Demand Registration.
4 Reduction of Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises the Company and the
Demanding Holders in writing that the dollar amount or number of Registrable Securities
which the Demanding Holders desire to sell, taken together with all other shares of Common
Stock or other securities which the Company desires to sell and the shares of Common Stock
or other Securities, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other securityholders of the Company who
desire to sell, exceeds the maximum dollar amount or maximum number of securities that can
be sold in such offering without adversely affecting the proposed offering price, the
timing, the distribution method, or the probability of success of such offering (such
maximum dollar amount or maximum number of securities as determined by the Company in its
sole discretion, as applicable, the “Maximum Number of Shares”), then the Company shall
include in such registration: (i) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance with the
number of shares of Registrable Securities which such Demanding Holder has requested be
included in such registration, regardless of the number of Registrable Securities held by
each Demanding Holder) that can be sold without exceeding the Maximum Number of Shares; (ii)
second, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii)
third, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), 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 (including, without limitation, any piggy-back registration rights)
with such persons and that can be sold without exceeding the Maximum Number of Shares; and
(iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i), (ii), and (iii), the shares of Common Stock or other securities that
other securityholders desire to sell that can be sold without exceeding the Maximum Number
of Shares.
5 Withdrawal. If a Majority-in-interest of the Demanding Holders disapprove of
the terms of any underwriting or are not entitled to include all of their Registrable
Securities in any offering, such Majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the Underwriter or
Underwriters of their request to withdraw prior to the effectiveness of the Registration
Statement filed with the Commission with respect to such Demand Registration. In such event,
the Company need not seek effectiveness of
such Registration Statement for the benefit of other Investors, unless otherwise
required to do so. If the Majority-in-interest of the Demanding Holders withdraws from a
proposed offering relating to a Demand Registration, then such registration shall not count
as a Demand Registration provided for in Section 2.1.1.
B Piggy-Back Registration.
1 Piggy-Back Rights. If at any time on or after the Effective Date 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 securityholders of the Company for their accounts (or by the Company and by
securityholders of the Company including, without limitation, pursuant to Section 2.1),
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 securityholders, (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 of Registrable
Securities as soon as practicable but in no event less than fifteen (15) 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 of Registrable Securities in such notice the opportunity to register the sale of
such number of shares of Registrable Securities as such holders may request in writing
within five (5) 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 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 to be included 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 of
Registrable Securities 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 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 of Registrable Securities in writing that the dollar amount or number of shares of
Common Stock or other 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 of
Registrable Securities 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
securityholders of the Company, exceeds the Maximum Number of Shares, 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 Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing clause
(A), the shares of Common Stock and other securities, if any, including the
Registrable Securities, as to which registration has been requested pursuant to
written contractual piggy-back registration rights of security holders (pro rata in
accordance with the number of shares of Common Stock and other securities which each
such person has actually requested to be included in such registration, regardless
of the number of shares of Common Stock and other securities with respect to which
such persons have the right to request such inclusion) that can be sold without
exceeding the Maximum Number of Shares; and
ii If the registration is a “demand” registration undertaken at the demand of
persons other than the holders of Registrable Securities pursuant to written
contractual arrangements with such persons, (A) first, the shares of Common Stock
and other securities for the account of the demanding persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent that the
Maximum Number of Shares 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 Shares; and (C) third, to the extent
that the Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the Registrable Securities as to which registration has been requested
under this Section 2.2 (pro rata in accordance with the number of shares of
Registrable Securities which each such person has actually requested to be included
in such registration, regardless of the number of shares of Common Stock and other
securities with respect to which such persons have the right to request such
inclusion by such holder); and (D) fourth, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A), (B) and (C), the shares
of Common Stock or other securities that other securityholders desire to sell that
can be sold without exceeding the Maximum Number of Shares.
3 Withdrawal. Any holder of Registrable Securities 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 a result
of the withdrawal by persons making a demand pursuant to written contractual obligations)
may also elect to 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 of Registrable Securities in connection with such
Piggy-Back Registration as provided in Section 3.3.
C Registrations on Form S-3. The holders of Registrable Securities may at any time
and from time to time beginning on or after the Effective Date, request in writing that the
Company register the resale of any or all of such Registrable Securities on Form S-3 or any
similar short-form registration which may be available at such time (“Form S-3”); provided,
however, that the Company shall not be obligated to effect such request through an underwritten
offering. Upon receipt of such written request, the Company will promptly give written notice of
the proposed registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such holder’s or
holders’ Registrable Securities as are specified in such request, together with all or such
portion of the Registrable Securities of any other holder or holders joining in such request as
are specified in a written request given within five (5) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be obligated to effect
any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such
offering; or (ii) if the holders of the Registrable Securities, together with the holders of any
other securities of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities at any aggregate price to the public of less
than $500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as
Demand Registrations effected pursuant to Section 2.1.
D No Net Cash Settlement Value. In no event will the holders of Registrable
Securities be entitled to receive a net cash settlement or other consideration in lieu of
physical settlement in shares of Common Stock, regardless of whether the Common Stock (or Common
Stock underlying the Registrable Securities) is registered pursuant to an effective Registration
Statement.
III REGISTRATION PROCEDURES.
A Filings; Information. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company shall use its 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:
1 Filing Registration Statement. The Company shall, as expeditiously as
possible and in any event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, 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 best efforts to cause such Registration Statement to
become and remain effective for the period required by Section 3.1.3; provided, however,
that the Company shall have the right to defer any Demand Registration for up to thirty (30)
days, and any Piggy-Back Registration for such period as may be applicable to deferment of
any demand registration to which such Piggy-Back Registration relates, in each case if the
Company shall furnish to the holders a certificate signed by the Chief Executive Officer of
the Company stating that, in the good faith judgment of the Board of Directors of the
Company, 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 Demand Registration hereunder.
2 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 (which period shall not exceed the sum
of one hundred eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any governmental agency
or court) or such securities have been withdrawn.
3 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 of Registrable Securities 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 of Registrable Securities included in
such Registration Statement any such supplement or amendment.
4 State Securities Laws Compliance. The Company shall use its best efforts to
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
of Registrable Securities included in such Registration Statement (in light of their
intended plan of distribution) may request.
5 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 of Registrable Securities included in such registration
statement. No holder of Registrable Securities 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. Holders of Registrable Securities 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; provided, however, that such
cooperation shall be limited to furnishing to the Company such information regarding itself,
the Registrable Securities held by such holder and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of the
Registrable Securities.
6 Cooperation. The principal executive officer of the Company, the principal
financial officer of the Company, the principal accounting 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.
7 Records. The Company shall make available for inspection by the holders of
Registrable Securities 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 of Registrable Securities 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 reasonably requested by any of them in
connection with such Registration Statement.
8 Opinions and Comfort Letters. The Company shall furnish to each holder of
Registrable Securities 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 of Registrable Securities 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.
9 Listing. The Company shall use its 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.
B 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), or, in the case of a
resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the
Company, pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s Board
of Directors, 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 of
Registrable Securities 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.
C Registration Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration
pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, 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 3.1.9; (vi) Financial Industry Regulatory
Authority, Inc. 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 3.1.8); (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 solely by such
holders. Additionally, in an underwritten offering, all selling securityholders and the Company
shall bear the expenses of the underwriter pro rata in proportion to the respective dollar
amount of securities each is selling in such offering.
D Information. The holders of Registrable Securities 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.
E Holder Obligations. No holder of Registrable Securities may participate in any
underwritten offering pursuant to this Section 3 unless such holder (i) agrees to sell only such
holder’s Registrable Securities on the basis reasonably provided in any underwriting agreement,
and (ii) completes, executes and delivers any and all questionnaires, powers of attorney,
custody agreements, indemnities, underwriting agreements and other documents reasonably required
by or under the terms of any underwriting agreement or as reasonably requested by the Company.
IV INDEMNIFICATION AND CONTRIBUTION.
A Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and agents, and each
person, if any, who controls an Investor and each other holder of Registrable Securities (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 (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, free writing 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 required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Investor Indemnified Party for
any reasonable legal and any other reasonable expenses incurred by such Investor Indemnified
Party in connection with defending any such expense, loss, judgment, claim, damage, liability or
action; 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 upon any
untrue statement or allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, free writing 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.
B Indemnification by Holders of Registrable Securities. Each selling holder of
Registrable Securities 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 person, if any, who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
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 such
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 in
connection with the sale of the Registrable Securities by such selling holder pursuant to the
Registration Statement containing such untrue statement or allegedly untrue statement.
C 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,
promptly 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 elects, 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.
D Contribution.
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 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.
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. 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 of Registrable Securities 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.
V OTHER COVENANTS.
A 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 of Registrable Securities 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 Rule may be amended from time to time, or any similar
Rule or regulation (but not Rule 144A) hereafter adopted by the Commission.
VI MISCELLANEOUS.
A 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 of Registrable
Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities
in conjunction with and to the extent of any transfer of Registrable Securities by any such holder
in accordance with applicable law. 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 of Registrable Securities or of any assignee of the
Investor or holder of Registrable Securities. 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 6.1.
B 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, sent by registered or
certified mail, return receipt requested, or sent by reputable air courier service with charges
prepaid, addressed as set forth below, or to such other address as such party shall have specified
most recently by written notice provided in accordance with this Section 6.2. Notice shall be
deemed given on the date of service if served personally, on the third business day after
registration or certification, if sent by registered or certified mail, or 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 sent by such courier service.
If to the Company:
1370 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
If to an Investor, to the attention of the Investor at the address set forth opposite his,
her or its respective name on the signature page hereto.
C 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 and be valid and enforceable.
D Counterparts; Facsimile Signatures. This Agreement may be executed in one 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 all parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, 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 or “.pdf” signature page were an original thereof.
E 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.
F Modifications and Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such party.
G 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.
H 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.
I Governing Law. This Agreement shall be governed by, interpreted under, and
construed in accordance with the internal laws of the State of New York applicable to agreements
made and to be performed within the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the application of the substantive laws of
any other jurisdiction.
J Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether
based on contract, tort or otherwise) arising out of, connected with or relating to this
Agreement, the transactions contemplated hereby, or the actions of any Investor in the
negotiation, administration, performance or enforcement hereof.
[The remainder of this page intentionally left blank. Signature pages to follow.]
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.
| GLOBAL CONSUMER ACQUISITION CORP., a | ||||||
| Delaware corporation | ||||||
| By: |
/s/ Xxxxx XxXxxxx
|
|||||
| Name: | Xxxxx XxXxxxx | |||||
| Its | Chief Executive Officer | |||||
