REGISTRATION RIGHTS AGREEMENT
EXHIBIT
2.2
THIS
REGISTRATION RIGHTS AGREEMENT
(the
“Agreement”)
is
entered into this 11th day of January, 2006, by and among RADIANT LOGISTICS,
INC., a Delaware corporation (the “Company”),
and
each of the shareholders set forth on the signature page hereto (each, a
“Shareholder”
and
collectively, the “Shareholders”).
RECITALS
WHEREAS, the
Company, Airgroup Corporation, a Washington corporation (“Airgroup”), Xxxxxxx X.
Xxxxxxxx, an individual and agent to the Shareholders (“Shareholders’ Agent”),
and the Shareholders are parties to that certain Stock Purchase Agreement dated
the date hereof (the “Stock
Purchase Agreement”);
WHEREAS,
the
Stock Purchase Agreement contemplates that the Company will be issuing share
of
its common stock to the Shareholders pursuant to Section 1.2(b)(iv) of the
Stock
Purchase Agreement; and
WHEREAS,
in
connection with the closing of the Stock Purchase Agreement, the parties desire
to enter into this Agreement in order to grant registration to the Shareholders
as set forth below.
NOW,
THEREFORE,
in
consideration of the mutual promises, representations, warranties, covenants
and
conditions set forth in this Agreement, the parties agree hereto as
follows:
1. General. For
the
purpose of this Agreement, the following definitions shall apply:
1.1. “Common
Stock”
shall
mean shares of common stock, $.001 par value per share, of the
Company.
1.2. Exchange
Act"
shall
mean the Securities Exchange Act of 1934, as amended, as the same shall be
in
effect at the time.
1.3. “Shareholders’
Agent”
shall
mean Xxxxxxx X. Xxxxxxxx
1.4. “Person”
shall
mean an individual, partnership (general or limited), corporation, limited
liability company, joint venture, business trust, cooperative, association
or
other form of business organization, whether or not regarded as a legal entity
under applicable law, a trust (inter vivos or testamentary), an estate of a
deceased, insane or incompetent person, a quasi-governmental entity, a
government or any agency, authority, political subdivision or other
instrumentality thereof, or any other entity.
1.5. “Register,”
“registered,”
and
“registration”
shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or order
of
effectiveness of such registration statement or document by the
SEC.
1.6. “Registration
Statement”
shall
mean any registration statement of the Company filed with the SEC pursuant
to
the provisions of Section 2.1 of this Agreement, which covers the resale of
the
Restricted Stock on an appropriate form then permitted by the SEC to be used
for
such registration and the sales contemplated to be made thereby under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including any pre-
and post- effective amendments thereto, in each case including the prospectus
contained therein, all exhibits thereto and all materials incorporated by
reference therein.
1.7. “Restricted
Stock”
shall
mean (i) the shares of Common Stock issuable to the Shareholders under Section
1.2(b)(iv) of the Stock Purchase Agreement; and (ii) any additional shares
of
Common Stock issued or issuable in respect of any of the foregoing securities,
by way of a stock dividend or stock split; provided that as to any particular
shares of Restricted Stock, such securities shall cease to constitute Restricted
Stock when (x) 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 disposed of thereunder, (y) such securities are
permitted to be transferred pursuant to Rule 144(k) (or any successor provision
to such rule) under the Securities Act or (z) such securities are otherwise
freely transferable to the public without further registration under the
Securities Act.
1.8. “SEC”
or
“Commission”
shall
mean the Securities and Exchange Commission.
1.9. “Securities
Act”
shall
mean the Securities Act of 1933, as amended, as the same shall be in effect
at
the time.
1.10. “Selling
Stockholders”
shall
mean each Shareholder and their respective successors and assigns whose shares
are included or requested to be included in a Registration
Statement.
2. Registration
Rights.
Purchaser shall be entitled to the rights and subject to the obligations set
forth below:
2.1. Registration
of the Shares.
(a) The
Company shall notify all Shareholders in writing at least ten (10) days
prior to the filing of any registration statement under the Securities Act
for
purposes of registering securities of the Company, excluding registration
statements on SEC Forms X-0, X-0 or any similar or successor forms, and will
afford each such Shareholder an opportunity to include in such registration
statement all or part of such Restricted Stock held by such Shareholder. Each
Shareholder desiring to include in any such registration statement all or any
part of the Restricted Stock held by it shall, within five (5) days after the
above-described notice from the Company, so notify the Company in writing.
Such
notice shall state the intended method of disposition of the Restricted Stock
by
such Shareholder. If a Shareholder decides not to include all of its Restricted
Stock in any registration statement thereafter filed by the Company, such
Shareholder shall nevertheless continue to have the right to include any
Restricted Stock in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein. The Company
may,
without the consent of the Shareholders, withdraw such registration statement
prior to its becoming effective if the proposal to register the securities
proposed to be registered thereby is abandoned.
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(b) In
the
event that any registration pursuant to Section 2.1(a) shall be, in whole or
in
part, an underwritten public offering of Common Stock on behalf of the Company,
all Shareholders proposing to distribute their Restricted Stock through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company.
If the managing underwriter thereof advises the Company in writing that in
its
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, securities held by person with demand or mandatory registration rights
and (iii) third, the Restricted Stock and any other securities eligible and
requested to be included in such registration to the extent that the number
of
shares to be registered under this clause (iii) will not, in the opinion of
the
managing underwriter, adversely affect the offering of the securities pursuant
to clause (i) or (ii). In such a case, shares shall be registered pro rata
among
the holders of such Restricted Stock and other securities on the basis of the
number of shares eligible for registration that are owned by all such holders
and requested to be included in such registration.
(c) Notwithstanding
anything to the contrary contained herein, the Company's obligation in Sections
2.1(a) and 2.1(b) above shall extend only to the inclusion of the Restricted
Stock in a Registration Statement. The Company shall have no obligation to
assure the terms and conditions of distribution, to obtain a commitment from
an
underwriter relative to the sale of the Restricted Stock or to otherwise assume
any responsibility for the manner, price or terms of the distribution of the
Restricted Stock.
(d) The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 2.1 prior to the effectiveness of such registration
without thereby incurring liability to the holders of the Restricted Stock,
regardless of whether any Shareholder has elected to include securities in
such
registration. The Registration Expenses (as defined in Section 2.4) of such
withdrawn registration shall be borne by the Company in accordance with
Section 2.4 hereof.
2.2. Registration
Procedures.
Whenever it is obligated to register any Restricted Stock pursuant to this
Agreement, the Company shall:
(a) prepare
and file with the SEC a Registration Statement with respect to the Restricted
Stock in the manner set forth in Section 2.1 hereof and use its reasonable
best
efforts to cause such Registration Statement to become effective as promptly
as
possible and to remain effective until the earlier of (i) the sale of all shares
of Restricted Stock covered thereby, (ii) the availability under Rule 144 for
the Selling Stockholder to immediately, freely resell without restriction all
Restricted Stock covered thereby, or (iii) two (2) years from the date of this
Agreement;
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(b) prepare
and file with the SEC 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
for
the period specified in Section 2.2(a) above and to comply with the provisions
of the Act with respect to the disposition of all Restricted Stock covered
by
such Registration Statement in accordance with the intended method of
disposition set forth in such Registration Statement for such
period;
(c) furnish
to the Selling Stockholders such number of copies of the Registration Statement
and the prospectus included therein (including each preliminary prospectus)
as
such person may reasonably request in order to facilitate the public sale or
other disposition of the Restricted Stock covered by such Registration
Statement;
(d) use
its
reasonable best efforts to register or qualify the Restricted Stock covered
by
such Registration Statement under the state securities laws of such
jurisdictions as any Selling Stockholder shall reasonably request; provided,
however,
that
the Company shall not for any such purpose be required to qualify generally
to
transact business as a foreign corporation in any jurisdiction where it is
not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) in
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering. Each Selling Stockholder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement, as described in Section
2.1(b);
(f) immediately
notify each Selling Stockholder at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required or necessary to be stated therein in
order to make the statements contained therein not misleading in light of the
circumstances under which they were made. The Company will use reasonable
efforts to amend or supplement such prospectus in order to cause such prospectus
not to include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;
(g) prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection with such Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement;
(h) use
its
reasonable best efforts to list the Restricted Stock covered by such
Registration Statement on each exchange or automated quotation system on which
similar securities issued by the Company are then listed (with the listing
application being made at the time of the filing of such Registration Statement
or as soon thereafter as is reasonably practicable);
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(i) notify
each Selling Stockholder of any threat by the SEC or state securities commission
to undertake a stop order with respect to sales under the Registration
Statement; and
(j) cooperate
in the timely removal of any restrictive legends from the shares of Restricted
Stock in connection with the resale of such shares covered by an effective
Registration Statement.
2.3. Delay
of Registration.
No
Selling Stockholder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
2.4 Expenses.
(a) For
the
purposes of this Section 2.4, the term "Registration
Expenses"
shall
mean: all expenses incurred by the Company in complying with Section 2.1 and
2.2
of this Agreement, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees under state securities laws, fees
of
the National Association of Securities Dealers, Inc. ("NASD"), fees and expenses
of listing shares of Restricted Stock on any securities exchange or automated
quotation system on which the Company's shares are listed and fees of transfer
agents and registrars. The term "Selling
Expenses"
shall
mean: all underwriting discounts and selling commissions applicable to the
sale
of Restricted Stock and all accountable or non-accountable expenses paid to
any
underwriter in respect of such sale.
(b) Except
as
otherwise provided herein, the Company will pay all Registration Expenses in
connection with the Registration Statements filed pursuant to Section 2.1 of
this Agreement. All Selling Expenses in connection with any Registration
Statements filed pursuant to Section 2.1 of this Agreement shall be borne by
the
Selling Stockholders pro rata on the basis of the number of shares registered
by
each Selling Stockholder whose shares of Restricted Stock are covered by such
Registration Statement, or by such persons other than the Company (except to
the
extent the Company may be a seller) as they may agree.
2.5. Obligations
of the Selling Stockholders.
(a) In
connection with each registration hereunder, each Selling Stockholder will
furnish to the Company in writing such information with respect to it and the
securities held by it and the proposed distribution by it, as shall be
reasonably requested by the Company in order to assure compliance with
applicable federal and state securities laws as a condition precedent to
including the Selling Stockholder's Restricted Stock in the Registration
Statement. Each Selling Stockholder shall also promptly notify the Company
of
any changes in such information included in the Registration Statement or
prospectus as a result of which there is an untrue statement of material fact
or
an omission to state any material fact required or necessary to be stated
therein in order to make the statements contained therein not misleading in
light of the circumstances under which they were made.
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(b) In
connection with the filing of the Registration Statement, each Selling
Stockholder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with such
Registration Statement or prospectus.
(c) In
connection with each registration pursuant to this Agreement, each Selling
Stockholder agrees that it will not effect sales of any Restricted Stock until
notified by the Company of the effectiveness of the Registration Statement,
and
thereafter will suspend such sales after receipt of telegraphic or written
notice from the Company to suspend sales to permit the Company to correct or
update a Registration Statement or prospectus. At the end of any period during
which the Company is obligated to keep a Registration Statement current, each
Selling Stockholder shall discontinue sales of Restricted Stock pursuant to
such
Registration Statement upon receipt of notice from the Company of its intention
to remove from registration the Restricted Stock covered by such Registration
Statement that remains unsold, and each Selling Stockholder shall notify the
Company of the number of shares registered which remain unsold immediately
upon
receipt of such notice from the Company.
2.6. Information
Blackout and Holdbacks.
(a) At
any
time when a Registration Statement effected pursuant to Section 2.1 is
effective, upon written notice from the Company to Selling Stockholder that
the
Company has determined in good faith that the sale of Restricted Stock pursuant
to the Registration Statement would require disclosure of non-public material
information, each Selling Stockholder shall suspend sales of Restricted Stock
pursuant to such Registration Statement until such time as the Company notifies
the Selling Stockholders that such material information has been disclosed
to
the public or has ceased to be material, or that sales pursuant to such
Registration Statement may otherwise be resumed.
(b) Notwithstanding
any other provision of this Agreement, in the event that the Company undertakes
a primary offering of shares of its unissued Common Stock, which may also
include other securities (a "Primary
Offering"),
in
which all of the shares of Restricted Stock are not included, the Shareholder
shall not sell, transfer, make any short sale of, grant any option for the
purchase of, or enter into any hedging or similar transaction with the same
economic effect as a sale of, any Common Stock (or other securities) of the
Company held by such Shareholder (except for shares included in the Primary
Offering), during the thirty (30) days prior to the commencement of any such
Primary Offering and ending one hundred fifty (150) days after completion of
any
such Primary Offering, unless the Company, in the case of a non-underwritten
Primary Offering, or the managing underwriter, in the case of an underwritten
Primary Offering, otherwise agree in writing. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred fifty (150) day period.
2.7. Indemnification.
(a) To
the
extent permitted by law, the Company shall indemnify, each Selling Stockholder,
such Selling Stockholder’s respective partners, officers, directors,
underwriters and each Person who controls any Selling Stockholder (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses caused by (i) any untrue statement of or alleged untrue statement
of material fact contained in the Registration Statement, prospectus or
preliminary prospectus or any amendment or supplement thereto, (ii) any omission
of or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act,
any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with the
offering covered by such registration statement (“Violations”); provided,
however,
that
the indemnity agreement contained in this Section 2.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in for
any
loss, claim, damage, liability or action to the extent that it arises out of
or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Selling Stockholder, partner, officer, director,
underwriter or controlling person of such Selling Stockholder, occurs as a
result of any failure to deliver a copy of the prospectus relating to such
Registration Statement, or occurs as a result of any disposition of the
Restricted Stock in a manner that fails to comply with the permitted methods
of
distribution identified within the Registration Statement.
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(b) To
the
extent permitted by law, each Selling Stockholder shall indemnify and hold
harmless the Company, each of its directors, its officers and each person,
if
any, who controls the Company within the meaning of the Securities Act, any
underwriter and any other Selling Stockholder selling securities under such
registration statement or any of such other Selling Stockholder’s partners,
directors or officers or any person who controls such Selling Stockholder,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter
or
other such Selling Stockholder, or partner, director, officer or controlling
person of such other Selling Stockholder, may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out
of or are based upon any Violation, in each case to the extent (and only to
the
extent) that such Violation (i) occurs in reliance upon and in conformity with
written information furnished by such Selling Stockholder to the Company for
use
in connection with such registration, (ii) occurs as a result of any failure
of
such Selling Stockholder to deliver a copy of the prospectus relating to such
Registration Statement, or (iii) occurs as a result of any disposition of the
Restricted Stock by such Selling Stockholder in a manner that fails to comply
with the permitted methods of distribution identified within the Registration
Statement.
(c) Any
Person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party), and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not
be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees
and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such
claim.
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(d) If
the
indemnification provided for in this Section 2.7 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any losses, claims, damages or liabilities referred to herein, the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall to
the
extent permitted by applicable law contribute to the amount paid or payable
by
such indemnified party as a result of such loss, claim, damage or liability
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
in
connection with the violation(s) described in Section 2.7(a) that resulted
in
such loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission to state a material fact relates to information supplied by
the
indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided,
that in
no event shall any contribution by a Selling Stockholder hereunder exceed the
net proceeds from the offering received by such Selling
Stockholder.
(e) The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities. The Company also agrees to make
such provisions as are reasonably requested by any indemnified party for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
3. Miscellaneous.
3.1. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware as applied to agreements among Delaware residents entered into and
to
be performed entirely within Delaware.
3.2. Survival.
The
representations, warranties, covenants, and agreements made herein shall survive
any investigation made by any Shareholder and the closing of the transactions
contemplated hereby.
3.3. Successors
and Assigns.
Except
as otherwise expressly provided herein, the provisions hereof shall inure to
the
benefit of, and be binding upon, the successors, assigns, heirs, executors,
and
administrators of the parties hereto and shall inure to the benefit of and
be
enforceable by each person who shall be a holder of Restricted Securities from
time to time; provided,
however,
that
prior to the receipt by the Company of adequate written notice of the transfer
of any Restricted Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder
of
such shares in its records as the absolute owner and holder of such shares
for
all purposes.
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3.4. Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein.
3.5. Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
3.6. Amendment
and Waiver.
(a) Except
as
otherwise expressly provided, this Agreement may be amended or modified only
upon the written consent of the Company and the Shareholders’ Agent;
provided,
however,
that no
such amendment having a disproportionately adverse effect on any Shareholder
in
relation to the other Shareholders may be made without consent of such
Shareholder.
(b) Except
as
otherwise expressly provided, the obligations of the Company and the rights
of
the Shareholders under this Agreement may be waived (either generally or in
a
particular instance and either retroactively or prospectively) only with the
written consent of the Shareholders’ Agent.
(c) Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Shareholder and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the
Shareholders, or agree to accept alternatives to such performance, without
obtaining the consent of any Shareholder.
3.7. Notices.
All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day,
(c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address set forth on the signature page or at such
other address as such party may designate by advance written notice to the
other
parties hereto.
3.8. Titles
and Subtitles.
The
titles of the sections and subsections of this Agreement are for convenience
of
reference only and are not to be considered in construing this
Agreement.
3.9. Counterparts.
This
Agreement may be executed in two or more counterparts and delivered via
facsimile, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
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IN
WITNESS WHEREOF, each of the parties has executed or caused this Agreement
to be
executed as of the date first above written.
| RADIANT LOGISTICS, INC. | ||
| By: |
/s/
Xxxx X. Xxxxx
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Authorized
Executive Officer
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SHAREHOLDERS
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/s/
Xxxxxx X. Xxxxxxxx
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XXXXXX
X. XXXXXXXX
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[Address]
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/s/
Xxxxx X. Xxxxxxxx
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XXXXX
X. XXXXXXXX
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[Address]
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/s/
Xxxxx X. Xxxxxxxx
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XXXXX
X. XXXXXXXX
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[Address]
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/s/
X.X. Xxxxxx
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X.X.
XXXXXX
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[Address]
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SHAREHOLDERS’
AGENT
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[Address]
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/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX
X. XXXXXXXX
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[Address]
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