REGISTRATION RIGHTS AGREEMENT
Exhibit 10.24
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the
5th day of May, 2011, by and among 00xx Xxxxxx General Acquisition Corp., a
Delaware corporation (the “Parent”) and those members (as they exist immediately prior to
the Merger) of Crumbs Holdings LLC, a Delaware limited liability company (“Crumbs”), whose names
are set forth on the signature pages hereto, any Joining Stockholder permitted by Section 6.2
hereof (each such Person a “Member Holder” and, collectively, the “Member
Holders”), the Sponsor, the underwriter holders whose names are set forth on the signature
pages hereto with Xxxxxx Xxxxxx & Co. Inc. (“Representative”) acting as representative of
the several underwriters (collectively, the “Underwriter Holders”) and the Expense Holders
whose names are set forth on the signature pages hereto.
WHEREAS, the Parent, 00xx Xxxxxx Merger Sub LLC, a Delaware limited liability company and
wholly-owned subsidiary of Parent, Crumbs, the members of Crumbs and the representatives of Crumbs
and such members have made and entered into a Business Combination Agreement as of January 9, 2011,
as amended by that certain Amendment to Business Combination Agreement, dated February 18, 2011,
Amendment No. 2 to Business Combination Agreement, dated March 17, 2011 and Amendment No. 3 to
Business Combination Agreement, dated April 7, 2011 (the “Business Combination Agreement”);
WHEREAS, pursuant to the terms of the Business Combination Agreement, the Parent has agreed to
grant the Member Holders the registration rights and other rights set forth in this Agreement and
this Agreement is being delivered in satisfaction of the condition to closing set forth in Sections
6.2(l) and 6.3(m) of the Business Combination Agreement;
WHEREAS, 00xx Xxxxxx GAC currently holds all of the outstanding Common Stock of the
Company issued prior to the consummation of the Company’s initial public offering (the “Sponsor
Shares”);
WHEREAS, the Sponsor and the Underwriter Holders purchased 3,700,000 warrants (the
“Insider Warrants”) in a private placement transaction occurring at the time of the
Company’s initial public offering and have entered into the Insider Warrant Exchange Agreement with
the Company whereby they will exchange all of their Insider Warrants for 370,000 shares of common
stock of the Company commencing on the 11th Business Day following the Expiration Time
of the Tender Offer (“Insider Shares”);
WHEREAS, pursuant to the Business Combination Agreement, EHL Holdings LLC (“EHL”) may
receive Liquidity Units exchangeable into Common Stock and Substituted Units exchangeable into
Substituted Stock (the Common Stock received in exchange for the Liquidity Units and the
Substituted Stock received in exchange for the Substituted Units shall be referred to as the
“EHL Additional Shares”); and
WHEREAS, in connection with the Merger, certain service providers (the “Expense
Holders”) have agreed to receive in aggregate 177,000 shares of Common Stock as payment for
fees and expenses (the “Expense Shares”).
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:
1.1 Certain Restrictions. The rights set forth in this Agreement with respect to any
Registrable Securities shall be subject to any lock-up agreements applicable to such Registrable
Securities.
1.2 DEFINITIONS. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Business Combination Agreement. The following capitalized
terms used herein have the following meanings:
“57th Street GAC” means 57th Street GAC Holdings, LLC, a limited liability
company formed under the laws of Delaware.
“Additional Demand Registration” is defined in Section 2.2.2.
“Affiliate” means, with respect to any Person, any Person, directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common control with such
Person,
Agreement” means this Agreement, as it may be amended, restated, supplemented, or
otherwise modified from time to time.
“Automatic Shelf Registration Statement” shall mean a Registration Statement filed by
the Parent when it is a WKSI and which shall become effective upon filing thereof pursuant to
General Instruction I.D. of Form S-3.
“Xxxxx Family Holders” shall mean Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx Xxxxx, Crumbs, Inc.
and each of their respective Designated Transferees.
“Business Combination Agreement” is defined in the recitals.
“Business Day” means any day on which the principal offices of the Commission in
Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment
is due, any day on which banks are not required or authorized to close in the State of Delaware.
“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 Parent.
“Crumbs” is defined in the preamble.
“Demand Registration” is defined in Section 2.2.1.
“Demanding Holder” is defined in Section 2.2.1.
“Demanding Member Group” means the Member Group on whose behalf a Demand Registration
is undertaken pursuant to a Demand Notice delivered by some or all of the Member Holders of such
Member Group.
“Demand Notice” is defined in Section 2.2.1.
“Demand Shelf Takedown Notice” is defined in Section 2.4.4.
“Designated Transferee” means a Joining Stockholder designated by a Member Holder of a
Member Group as a “Designated Transferee” in accordance with Section 6.2.1.
“Determination Date” is defined in Section 2.4.2.
“EHL” is defined in the recitals.
“EHL Additional Shares” is defined in the recitals.
“EHL Holders” means XXX, Xxxx X. Ireland and each of their respective Designated
Transferees.
“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.
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“Exchange Agreement” means the Exchange and Support Agreement, by and among the
Parent, Crumbs and the members of Crumbs party thereto.
“Existing 57th Street GAC Registration Rights Agreement” means the
Registration Rights Agreement entered into as of the 19th day of May, 2010, by and among
the Parent, 00xx Xxxxxx GAC and the other parties thereto.
“Expense Holders” is defined in the recitals.
“Expense Shares” is defined in the recitals.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“First Registration” is defined in Section 2.1.1.
“First Shelf Takedown Notice” is defined in Section 2.1.2.
“First Underwritten Shelf Takedown” is defined in Section 2.1.2.
“Follow-On Registration Notice” is defined in Section 2.4.3.
“Follow-On Shelf” is defined in Section 2.4.3.
“Form S-3” is defined in Section 2.4.1.
“Holder Indemnified Party” is defined in Section 4.1.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Initial Demand Registration” is defined in Section 2.2.2.
“Initial Requesting Holder” is defined in Section 2.2.1.
“Insider Shares” is defined in the recitals.
“Insider Warrants” is defined in the recitals.
“Joining Stockholder” is defined in Section 6.2.1.
“Lock-Up Period” is defined in Section 25.1.
“Maximum Number of Shares” is defined in Section 2.1.3.
“Member Holder” is defined in the preamble to this Agreement.
“Member Group” means the Xxxxx Family Holders or the EHL Holders, as applicable.
“New Crumbs Class B Exchangeable Units” has the meaning ascribed to such term in the
Surviving Company LLC Agreement.
“New Issuer” is defined in Section 6.2.2.
“New Securities” is defined in Section 6.2.2.
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“Notices” is defined in Section 6.3.
“Other Holders” is defined in Section 2.4.1.
“Parent” is defined in the preamble to this Agreement.
“Person” means and includes an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an association, an unincorporated organization,
a governmental authority and any other entity.
“Piggy-Back Registration” is defined in Section 2.3.1.
“Pro Rata” is defined in Section 2.1.3.
“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” means the following securities issued or issuable by the
Parent from time to time, namely: (i) any shares of Common Stock issued or issuable upon the
exchange of the New Crumbs Class B Exchangeable Units, (ii) Sponsor Shares, (iii) Insider Shares,
(iv) Expense Shares and (v) any securities issued or issuable with respect to such Registrable
Securities by way of a split, dividend, or other division of securities, or in connection with a
combination of securities, conversion, exchange, replacement, recapitalization, merger,
consolidation, or other reorganization or otherwise, in each case held or beneficially owned by any
of the Member Holders, Sponsor (or its members), Underwriter Holders or Expense Holders,
respectively; provided, that such Registrable Securities shall cease to be or shall not be
considered Registrable Securities (a) upon the sale of such Registrable Securities pursuant to a
Registration Statement or Rule 144 under the Securities Act (or any similar provision then in
force) (“Rule 144”), (b) upon repurchase by the Parent, (c) with respect to the Registrable
Securities held by a Person, when such Person is permitted to sell such Registrable Securities
under 144(b)(1), (d) when they otherwise cease to be outstanding, or (e) with respect to
Underwriter Holders or Expense Holders, any securities other than Insider Shares or Expense Shares
except, for clarification, any of the securities set forth in clause (v) of this paragraph issued
or issuable with respect to Insider Shares or Expense Shares shall not be excluded hereby.
“Registration Statement” means a registration statement filed by the Parent with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities (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).
“Release Date” means the date on which Sponsor Shares are disbursed from escrow
pursuant to Section 3 of that certain Securities Escrow Agreement, dated as of May 19, 2010 by and
among Parent, the Sponsor, the Underwriter Holders and Continental Stock Transfer and Trust
Company.
“Representative” is defined in the preamble to this Agreement.
“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.
“Selling Holder” is defined in Section 4.1.
“Shelf Demand Notice” is defined in Section 2.4.1.
“Shelf Registration” is defined in Section 2.4.1.
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“Sponsor” means 00xx Xxxxxx GAC Holdings, LLC and includes those members of the
Sponsor to whom Sponsor Shares have been distributed by 00xx Xxxxxx GAC.
“Sponsor Demand Registration” is defined in Section 2.2.3.
“Sponsor Demanding Holder” in Section 2.2.3.
“Sponsor Shares” is defined in the recitals.
“Surviving Company LLC Agreement” means the 3rd Amended and Restated
Limited Liability Company Agreement of Crumbs dated as of the date hereof.
“Underwriter” means a securities dealer registered under the Exchange Act who
purchases any Registrable Securities as principal in an underwritten offering and not as part of
such dealer’s market-making activities.
“Underwriter Holders” is defined in the preamble to this Agreement and includes the
permitted designees and assigns of any such Underwriter Holder pursuant to the FINRA rules and
regulations.
“Underwritten Offering” is defined in Section 2.5.1.
“Underwritten Shelf Takedown” is defined in Section 2.4.4.
“WKSI” means a “well-known seasoned issuer” as defined in Rule 405 under the
Securities Act.
2. REGISTRATION RIGHTS.
2.1 First Registration.
2.1.1 First Registration. Parent agrees, in accordance with the provisions of this
Agreement, to use its commercially reasonable efforts to, within fifteen (15) Business Days of the
Closing of the Merger, file with the Commission a shelf registration statement for the registration
under the Securities Act for resale of any EHL Additional Shares (the “First Registration”)
in an offering to be made pursuant to Rule 415 under the Securities Act (or similar rule that may
be adopted by the Commission covering EHL Additional Shares) on whatever form is available for such
offering and shall thereafter use its commercially reasonable efforts to cause to be declared
effective, as promptly as practical, such First Registration, subject to EHL timely providing to
Parent in writing (i) the number of EHL Additional Shares desired to be registered, (ii) the
intended method or methods and plan of disposition thereof, including whether such registration is
to involve an underwritten offering and (iii) whatever other information Parent deems reasonably
relevant to such registration. If the First Registration is on a Form S-1, the Parent shall use
its commercially reasonable efforts to convert the First Registration to a Registration Statement
on Form S-3 as soon as practicable after the Company is eligible to use Form S-3. Parent shall
have no obligation to include on such registration any securities of a holder that does not provide
the information requested in a timely manner, but such non-inclusion shall in no way deprive a
holder of any rights to a subsequent registration under this agreement. If any EHL Additional
Shares remain unsold after three (3) years following the initial effective date of such First
Registration, the Parent shall, prior to the expiration of such First Registration, file a new
shelf registration covering such EHL Additional Shares and shall thereafter use its commercially
reasonable efforts to cause to be declared effective as promptly as practical, such new shelf
registration. The Parent shall use its commercially reasonable efforts to maintain the
effectiveness of the First Registration or the new shelf registration filed pursuant to the prior
sentence in accordance with the terms hereof for so long as any EHL Additional Shares included
therein remain unsold.
2.1.2 Requests for First Underwritten Shelf Takedowns. At any time and from time to
time after the First Registration has been declared effective by the Commission, EHL may request to
sell all or any portion of their Registrable Shares in an underwritten offering that is registered
pursuant to the First Registration,
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(each, a “First Underwritten Shelf Takedown”); provided, that in the case of
each such First Underwritten Shelf Takedown, EHL will be entitled to make such demand only if the
total offering price of the Registrable Securities to be sold in such offering (including piggyback
shares and before deduction of underwriting discounts) is reasonably expected to exceed, in the
aggregate, $3,000,000. All requests for First Underwritten Shelf Takedowns shall be made by giving
written notice to the Parent (the “First Shelf Takedown Notice”) at least 15 days prior to
the proposed date of such First Underwritten Shelf Takedown. Each First Shelf Takedown Notice
shall specify (i) the type and number of EHL Additional Shares proposed to be sold in the First
Underwritten Shelf Takedown; and (ii) the intended method or methods and plan of disposition
thereof. Parent shall not include any Registrable Securities, other than EHL Additional Shares,
requested to be included in the First Underwritten Shelf Takedown, without the prior consent of
EHL. With respect to a First Underwritten Shelf Takedown, EHL shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such underwriting by
EHL.
2.1.3 Reduction of Offering. If the managing Underwriter or Underwriters for a First
Underwritten Shelf Takedown advises the Parent and EHL in writing that the dollar amount or number
of shares of EHL Additional Shares which EHL desires to sell, taken together with all securities
which the Parent desires to sell in such offering and the securities, if any, which the Member
Holders or other holders of Registrable Securities desire to sell in such offering, exceeds the
maximum dollar amount or maximum number of shares 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 shares, as
applicable, the “Maximum Number of Shares”), then the Parent shall include in such
registration: (i) first, EHL Additional Shares held by EHL; (ii) second, to the
extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the
Registrable Securities that Member Holders desire to sell that can be sold without exceeding the
Maximum Number of Shares (as determined pro rata in accordance with the number of Registrable
Securities that each such Member Holder has requested be included in such registration, regardless
of the number of shares held or beneficially owned by each such Member Holder (such proportion is
referred to herein as “Pro Rata”)); (iii) third, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable
Securities that other holders of Registrable Securities desire to sell that can be sold without
exceeding the Maximum Number of Shares (as determined Pro Rata); 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 securities that the Parent desires to sell that can be sold without exceeding the
Maximum Number of Shares. For clarification, the First Registration shall not be deemed to be a
Demand Registration under Section 2.2.
2.2 Demand Registration.
2.2.1 Request for Registration. At any time beginning six (6) months after the date
hereof, any one or more Member Holders (as further set forth in Section 2.2.2 below, the
“Initial Requesting Holders”) may, subject to the provisions of this Agreement, make a
written demand (a “Demand Notice”) that the Parent effect the registration under the
Securities Act for resale of any or all of the Registrable Securities held or beneficially owned by
such Member Holder (a “Demand Registration”), which Demand Notice shall specify (i) the
type and number of Registrable Securities proposed to be registered; (ii) the intended method or
methods and plan of disposition thereof, including whether such requested registration is to
involve an underwritten offering; and (iii) the proposed date that such registration shall be
effective, provided, however, that such proposed date shall be at least 90 days
after the date such notice has been delivered to the Parent unless the Parent permits a shorter
notice period. The Parent will notify all holders of Registrable Securities of the demand,
including each other Member Holder who wishes to include all or a portion of such holder’s
Registrable Securities in the Demand Registration (each such Member Holder including Registrable
Securities in such registration, a “Demanding Holder”) shall so notify the Parent within
fifteen (15) days after the receipt by the holder of the notice from the Parent. Upon any such
request, the Demanding Holders shall be entitled to have their Registrable Securities included in
the Demand Registration, subject to Section 2.2.6 and the provisos set forth in Section 3.1.1.
2.2.2 Allocation of Demand Registrations. The Parent shall not be obligated to effect
more than five (5) Demand Registrations (not counting the First Registration, Shelf Registrations
(except for Underwritten Shelf Takedowns) or Piggyback Registrations) at the request of the Member
Holders in accordance with this Section 2.2.2; provided, that (a) four (4) of such
Demand Registrations may be requested at any time subject to the timing limitations set forth in
Section 2.2.1 (each an “Initial Demand Registration”) and (b) the fifth Demand Registration
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may not be requested prior to October 1, 2012, requesting that Parent effect such registration
on January 1, 2013 (the “Additional Demand Registration”). The right to demand such Demand
Registrations (not counting Shelf Registrations (except for Underwritten Shelf Takedowns) or
Piggyback Registrations) pursuant to Sections 2.2.1 and 2.4.4 shall be allocated among the Member
Holders as follows:
(i) Member Holders who are Xxxxx Family Holders holding or beneficially owning a majority in
interest of the Registrable Securities held or beneficially owned by the Xxxxx Family Holders at
the time a Demand Notice or Demand Shelf Takedown Notice is delivered shall be entitled to make
demands for two (2) Initial Demand Registrations;
(ii) Member Holders who are EHL Holders holding or beneficially owning a majority in interest
of the Registrable Securities held or beneficially owned by the EHL Holders at the time a Demand
Notice or Demand Shelf Takedown Notice is delivered shall be entitled to make demands for two (2)
Initial Demand Registrations (for clarification, the First Registration is not a Demand
Registration);
(iii) Member Holders holding or beneficially owning a majority in interest of the Registrable
Securities held or beneficially owned by all the Member Holders at the time a Demand Notice or
Demand Shelf Takedown Notice is delivered shall be shall be entitled to make the demand with
respect to the Additional Demand Registration.
2.2.3 Sponsor Demand Registration. At any time and from time to time on or after the
date that is three (3) months prior to the Release Date, but prior to the date that is five (5)
years from the effective date of the Parent’s initial public offering, the holders of a majority in
interest of Sponsor Shares may, in the event such holders have not theretofore had in excess of
twenty-five percentage (25%) of their Registrable Securities included in an effective registration
statement, make a written demand for registration under the Securities Act of all or part of
Sponsor Shares or other Registrable Securities held by such holder (a “Sponsor Demand
Registration”); provided, however, that the Parent shall not be obligated to
effect a Sponsor Demand Registration if the holders of the Sponsor Shares, together with the
holders of any other securities of the Parent entitled to inclusion in such registration, propose
to register Sponsor Shares and such other securities (if any) at any aggregate price to the public
of less than $1,000,000. Any demand for a Sponsor Demand Registration shall specify the type and
number of Registrable Securities proposed to be sold and the intended method or methods and plan of
disposition thereof. Parent will notify all holders of Sponsor Shares of the demand, and each
holder of Sponsor Shares who wishes to include all or a portion of such holder’s Registrable
Securities in the Sponsor Demand Registration (each such holder including shares of Registrable
Securities in such registration, a “Sponsor Demanding Holder”) shall so notify the Parent
within fifteen (15) days after the receipt by the holder of the notice from the Parent. Upon any
such request, the Sponsor Demanding Holders shall be entitled to have their Registrable Securities
included in the Sponsor Demand Registration, subject to Section 2.2.6 and the provisos set forth in
Section 3.1.1. The Parent shall not be obligated to effect more than an aggregate of one (1)
Sponsor Demand Registration under this Section 2.2.3. Notwithstanding the foregoing, the only
Persons entitled to any rights under this Section 2.2.3 shall be Sponsor (except that any rights
under Section 2.3 shall apply), unless otherwise consented to by Parent.
2.2.4 Effective Registration. A registration will not count as a Demand Registration
(including with respect to the allocation set forth in Section 2.2.2) or a Sponsor Demand
Registration until the Registration Statement filed with the Commission with respect to such Demand
Registration or Sponsor Demand Registration has been declared effective and the Parent 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 or a Sponsor 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
or Sponsor 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) Demanding
Holders or Sponsor Demanding Holders holding or beneficially owning at least a majority in interest
of the Registrable Securities held or beneficially owned by the Demanding Member Group that are to
be included in the Demand Registration or, with respect to a Sponsor Demand Registration, holders
or beneficial owners of a majority in interest of the Sponsor Shares that are included in the
Sponsor Demand Registration thereafter elect to continue the offering; provided,
further, that the Parent shall not be obligated to file a
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second Registration Statement until a Registration Statement that has been filed is counted as
a Demand Registration or is terminated.
2.2.5 Underwritten Offering. With respect to a Demand Registration, if the Initial
Requesting Holders so elect and such holders so advise the Parent as part of their Demand Notice,
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 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.
All Demanding Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such underwriting by the Initial Requesting Holders.
2.2.6 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Parent and the Demanding Holders in
writing that the dollar amount or number of shares of Registrable Securities which the Demanding
Holders desire to sell, taken together with all securities which the Parent desires to sell and the
securities, if any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights held by other stockholders of the Parent who desire to sell, exceeds
the Maximum Number of Shares, then the Parent shall include in such registration: (i)
first, the Registrable Securities as to which Demand Registration has been requested by the
Demanding Holders (determined Pro Rata), (ii) second, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clause (i), the Sponsor Shares, Insider Shares
and Expense Shares that the holders of such shares desire to include in such offering that can be
sold without exceeding the Maximum Number of Shares (determined Pro Rata), (iii) third, to
the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i)
and (ii), the securities that the Parent desires to sell 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 securities for the
account of other Persons that the Parent is obligated to register pursuant to written contractual
piggy-back registration rights held by other stockholders of the Parent (other than the Sponsor)
and that can be sold without exceeding the Maximum Number of Shares.
2.2.7 Withdrawal.
(a) Pursuant to a written request, any Demanding Holder may, at any time prior to the
effective date of the Registration Statement relating to any requested registration, withdraw its
Registrable Securities from a requested registration, without liability to such withdrawing
Demanding Holder. If all Registrable Securities are so withdrawn, the Parent shall cease all
efforts to effect such registration upon such request, without liability to any Demanding Holder.
If Demanding Holders holding or beneficially owning at least a majority in interest of the
Registrable Securities held or beneficially owned by the Demanding Member Group that are to be
included in the Demand Registration withdraw from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration for the purposes of
Section 2.2.2. Notwithstanding any such withdrawal, the Parent shall pay all expenses incurred by
the holders of Registrable Securities in connection with such Demand Registration as provided in
Section 3.3.
(b) Pursuant to a written request, the Sponsor may, at any time prior to the effective date of
a Registration Statement relating to a Sponsor Demand Registration, withdraw its Registrable
Securities from a requested registration, without liability to the Sponsor. If all Registrable
Securities are withdrawn, the Parent shall cease all efforts to effect such registration upon such
request, without liability to the Sponsor. If Demanding Holders holding or beneficially owning at
least a majority in interest of the Sponsor Shares withdraw from the proposed offering relating to
the Sponsor Demand Registration, then such registration shall count as a Sponsor Demand
Registration. Notwithstanding any such withdrawal, the Parent shall pay all expenses incurred by
the Sponsor as provided in Section 3.3.
2.3 Piggy-Back Registration.
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2.3.1 Piggy-Back Rights. If at any time the Parent proposes to file a Registration
Statement under the Securities Act with respect to any offering of equity securities, or securities
or other obligations exercisable or exchangeable for, or convertible into, equity securities, by
the Parent for its own account or for security holders of the Parent for their account (or by the
Parent and by security holders of the Parent including, without limitation, pursuant to Sections
2.2 or 2.4), other than a Registration Statement filed on Forms S-4 or S-8, or successor forms,
registering shares for issuance in acquisitions or pursuant to equity incentive plans, then the
Parent shall (x) give written notice of such proposed filing to the holders of Registrable
Securities (including the Member Holders and the holders of Sponsor Shares, Insider Shares and
Expense Shares) as soon as practicable but in no event less than ten (10) Business 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) Business Days
following receipt of such notice (a “Piggy-Back Registration”). The Parent shall cause
such Registrable Securities to be included in such registration and shall cause the managing
Underwriter or Underwriters of a proposed underwritten offering to offer the Registrable Securities
requested to be included in a Piggy-Back Registration on the same terms and conditions as the
Common Stock or any similar securities of the Parent 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.
2.3.2 Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Parent and the holders
of Registrable Securities in writing that it has determined in good faith that the dollar amount or
number of securities which the Parent desires to sell, taken together with the Registrable
Securities as to which registration has been requested under this Section 2.3, and the securities,
if any, as to which registration has been requested pursuant to the written contractual piggy-back
registration rights of other stockholders of the Parent, exceeds the Maximum Number of Shares, then
the Parent shall include in any such registration:
(a) If the registration is undertaken for the Parent’s account: (i) first, the
securities that the Parent desires to sell 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 Common Stock or other securities, if any, comprised of
Registrable Securities held by Member Holders as to which registration has been requested, that can
be sold without exceeding the Maximum Number of Shares (as determined Pro Rata); (iii)
third, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), the Registrable Securities held by other holders of Registrable
Securities (as determined Pro Rata); 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 Common Stock or
other securities for the account of other Persons that the Parent is obligated to register pursuant
to written contractual piggy-back registration rights with such Persons and that can be sold
without exceeding the Maximum Number of Shares.
(b) If the registration is undertaken for a Member Holder’s account other than pursuant to a
First Underwritten Shelf Takedown as to which Section 2.1.3 applies or a Demand Registration as to
which Section 2.2.6 applies: (i) first, the securities that all of the Member Holders
desire to sell that can be sold without exceeding the Maximum Number of Shares (as determined Pro
Rata); (ii) second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (i), the Registrable Securities held by other holders of Registrable
Securities (as determined Pro Rata); (iii) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (i) and (ii), the Common Stock or other
securities, if any, comprised of Registrable Securities as to which registration has been requested
by the Parent, 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 Common Stock or other securities for the account of
other Persons that the Parent is obligated to register pursuant to written contractual piggy-back
registration rights with such Persons and that can be sold without exceeding the Maximum Number of
Shares.
9
(c) If the registration is a Sponsor Demand Registration, (i) first, among the Common
Stock or other securities that such holders of Sponsor Shares and other Registrable Securities
desire to sell and the Registrable Securities that Member Holders desire to sell that can be sold
without exceeding the Maximum Number of Shares, Pro Rata; (ii) second, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clause (i), the Common Stock
or other securities that the Parent desires to sell that can be sold without exceeding the Maximum
Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (i) and (ii), the securities for the account of other
Persons that the Parent is obligated to register pursuant to written contractual piggy-back
registration rights with such Persons and that can be sold without exceeding the Maximum Number of
Shares.
(d) If the registration is a “demand” registration undertaken at the demand of Persons other
than the holders of Registrable Securities pursuant to this Agreement, (i) first, among the
Common Stock or other securities, if any, comprised of such securities pursuant to the applicable
demand registration, all the Registrable Securities as to which registration has been requested
pursuant to the applicable written contractual piggy-back registration rights of such security
holders that can be sold without exceeding the Maximum Number of Shares, Pro Rata; (ii)
second, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the securities that the Parent desires to sell that can be sold without
exceeding the Maximum Number of Shares; and (iii) third to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i) and (ii), the securities for
the account of other Persons that the Parent is obligated to register pursuant to written
contractual piggy-back registration rights with such Persons and that can be sold without exceeding
the Maximum Number of Shares.
2.3.3 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 Parent of such request to withdraw prior to the effectiveness of the
Registration Statement. The Parent (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 with respect to a Piggy Back Registration at any time prior to the
effectiveness of such Registration Statement upon giving written notice to the participating
holders of Registrable Securities; provided that such withdrawal will be without prejudice
to the right of Member Holders to immediately request that such registration be effected as a
Demand Registration under Section 2.2 to the extent permitted thereunder. Notwithstanding any such
withdrawal, the Parent shall pay all expenses incurred by the holders of Registrable Securities in
connection with such Piggy-Back Registration as provided in Section 3.3.
2.4 Shelf Registration.
2.4.1 Shelf Registration Rights. At any time beginning twelve (12) months after the
date hereof, Member Holders holding or beneficially owning a majority of Registrable Securities may
request in writing (the “Shelf Demand Notice”) that the Parent register for resale any or
all of Registrable Securities held or beneficially owned by such Member Holders in an offering to
be made pursuant to Rule 415 under the Securities Act (or any similar rule that may be adopted by
the SEC covering such Registrable Securities) (a “Shelf Registration”) by filing a shelf
registration statement on Form S-3 or any similar short-form registration which may be available at
such time (“Form S-3”) or, if Form S-3 is not available, on any other appropriate form. If
Form S-3 is not available, Parent shall use its commercially reasonable efforts to convert any
Shelf Registration that is on a Form S-1 (including any Follow-On Shelf) to a Registration
Statement on Form S-3 as soon as practicable after the Company is eligible to use Form S-3. Upon
receiving a Shelf Demand Notice, the Parent will promptly give written notice of the proposed Shelf
Registration to all Member Holders and any holder of Registrable Securities with piggyback rights
which allow such holder to include securities on such registration statement (“Other
Holders”), and each other Member Holder who wishes to include all or a portion of such holder’s
Registrable Securities in the Shelf Registration shall so notify the Parent within ten (10)
Business Days after the receipt by the Member Holder of the notice from the Parent. The Parent
shall use commercially reasonable efforts to effect such Shelf Registration by filing a Form S-3 or
such other appropriate form, if applicable, as soon as practicable, and effect the registration of
all or such portion of such demanding Member Holder’s’ Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities or other securities
of the Parent, if any, or any other Member Holders joining in such request as are specified in a
written request given within thirty (30) days after receipt of such written notice from the Parent;
provided, however, that the Parent shall not be obligated to effect any
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such registration pursuant to this Section 2.4.1 if the holders of the Registrable Securities,
together with the holders of any other securities of the Parent entitled to inclusion in such
registration, propose to register Registrable Securities and such other securities (if any) at any
aggregate price to the public of less than $1,000,000. Except for Underwritten Shelf Takedowns
effected pursuant to Section 2.4.4 as provided below, Shelf Registrations shall not be counted as
Demand Registrations effected pursuant to Section 2.2. If any Registrable Securities remain issued
and outstanding after three (3) years following the initial effective date of such Shelf
Registration, the Parent shall, prior to the expiration of such Shelf Registration, file a new
Shelf Registration covering such Registrable Securities and shall thereafter use its commercially
reasonable efforts to cause to be declared effective as promptly as practical, such new Shelf
Registration. The Parent shall use its commercially reasonable efforts to maintain the
effectiveness of the Shelf Registration in accordance with the terms hereof for so long as any
Registrable Securities remain issued and outstanding.
2.4.2 Automatic Shelf Registration. Upon the Parent becoming a WKSI, the Parent shall
(i) give written notice to all of the Member Holders and Other Holders as promptly as practicable
but in no event later than twenty (20) days thereafter, and such notice shall describe, in
reasonable detail, the basis on which Parent has become a WKSI, and (ii) use commercially
reasonable efforts to register, under an Automatic Shelf Registration Statement, the sale of all of
the Registrable Securities in accordance with the terms of this Agreement. The Parent shall use
commercially reasonable efforts to file such Automatic Shelf Registration Statement as promptly as
practicable and to cause such Automatic Shelf Registration Statement to remain effective thereafter
until there are no longer any Registrable Securities registered on such Automatic Shelf
Registration Statement. At any time after the filing of an Automatic Shelf Registration Statement
by the Parent, if the Parent is no longer a WKSI (the “Determination Date”), within twenty
(20) days after such Determination Date, the Parent shall (A) give written notice thereof to all of
the Member Holders and Other Holders and (B) file a Registration Statement on an appropriate form
(or a post-effective amendment converting the Automatic Shelf Registration Statement to an
appropriate form) covering all of the Registrable Securities in accordance with the terms of this
Agreement, and use commercially reasonable efforts to have such Registration Statement declared
effective as promptly as practicable after the date the Automatic Shelf Registration Statement is
no longer useable by the Member Holders and Other Holders to sell their Registrable Securities.
2.4.3 Additional Selling Stockholders and Additional Registrable Securities.
(a) If the Parent is not a WKSI within twenty (20) days after a written request by one or more
Member Holders to register for resale any additional Registrable Securities held or beneficially
owned by such Member Holders, the Company shall file a Registration Statement substantially similar
to the Shelf Registration then effective, if any (each, a “Follow-On Shelf”), to register
for resale such Registrable Securities. The Company shall give written notice (the “Follow-On
Registration Notice”) of the filing of the Follow-On Shelf at least seven (7) days prior to
filing the Follow-On Shelf to all Member Holders whose Registrable Securities are not already the
subject of a Shelf Registration and shall include in such Follow-On Shelf all Registrable
Securities with respect to which Parent has received written requests for inclusion therein within
ten (10) days after sending the Follow-On Registration Notice. Notwithstanding the foregoing, the
Company shall not be required to file a Follow-On Shelf if (x) the aggregate amount of Registrable
Securities requested to be registered on such Follow-On Shelf by all Member Holders that have not
yet been registered represents less than $1,000,000 or (y) the Company has filed a Follow-On Shelf
in the prior ninety (90) days. The Company shall use commercially reasonable efforts to cause such
Follow-On Shelf to be declared effective as promptly as practicable and in any event within sixty
(60) days of filing such Follow-On Shelf. Any Registrable Securities requested to be registered
pursuant to this Section 2.4.3 that have not been registered on a Shelf Registration at the time
the Follow-On Shelf is filed shall be registered pursuant to such Follow-On Shelf.
(b) If the Parent is a WKSI, within five (5) Business Days after a written request by one or
more Member Holders of Registrable Securities to register for resale any additional Registrable
Securities owned by such Member Holders, the Company shall make all necessary filings to include
such Registrable Securities in the Automatic Shelf Registration Statement filed pursuant to Section
2.4.2.
(c) If a Shelf Registration pursuant to Form S-3 or Automatic Shelf Registration Statement is
effective, within five (5) Business Days after written request therefor by a Member Holder of
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Registrable Securities, the Company shall file a prospectus supplement or current report on
Form 8-K to add such Member Holder as a selling stockholder in such Shelf Registration pursuant to
Form S-3 or Automatic Shelf Registration Statement to the extent permitted under the rules and
regulations promulgated by the Commission.
2.4.4 Requests for Underwritten Shelf Takedowns. At any time and from time to time
after a Shelf Registration has been declared effective by the Commission, Member Holders sufficient
to request a Demand Registration pursuant to Section 2.2 participating in any Shelf Registration
may request to sell all or any portion of their Registrable Shares in an underwritten offering that
is registered pursuant to the Shelf Registration, (each, an “Underwritten Shelf Takedown”);
provided that in the case of each such Underwritten Shelf Takedown, the Member Holders
requesting such Underwritten Shelf Takedown will be entitled to make such demand only if the total
offering price of the Registrable Securities to be sold in such offering (including piggyback
shares and before deduction of underwriting discounts) is reasonably expected to exceed, in the
aggregate, $5,000,000. An Underwritten Shelf Takedown shall count against the allocation of Demand
Registrations set forth in Section 2.2.2. All requests for Underwritten Shelf Takedowns shall be
made by giving written notice to the Parent (the “Demand Shelf Takedown Notice”) at least
15 days prior to the proposed date of such Underwritten Shelf Takedown. Each Demand Shelf Takedown
Notice shall specify (i) the type and number of Registrable Securities proposed to be sold in the
Underwritten Shelf Takedown; and (ii) the intended method or methods and plan of disposition
thereof. In such event, the right of any holder to include its Registrable Securities in such
Underwritten Shelf Takedown shall be conditioned upon such holder’s participation in such
underwriting and the inclusion of such holder’s Registrable Securities in the underwriting. All
holders proposing to distribute their Registrable Securities through such Underwritten Shelf
Takedown shall enter into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such underwriting by the Initial Requesting Holders.
2.4.5 Reduction of Offering. If the managing Underwriter or Underwriters for an
Underwritten Shelf Takedown advise the Parent and the participating Member Holders in writing that
the dollar amount or number of shares of Registrable Securities which the Member Holders desire to
sell, taken together with all securities which the Parent desires to sell and the securities, if
any, as to which registration has been requested pursuant to written contractual piggy-back
registration rights held by other stockholders of the Parent who desire to sell, exceeds the
Maximum Number of Shares then the Parent shall include in such Underwritten Shelf Takedown: (i)
first, the Registrable Securities as to which an Underwritten Shelf Takedown has been
requested by the Member Holders that can be sold without exceeding the Maximum Number of Shares,
Pro Rata; (ii) second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (i), the securities that the Parent desires to sell that can be sold
without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the
securities for the account of other Persons that the Parent is obligated to register pursuant to
written contractual piggy-back registration rights held by other stockholders of the Parent and
that can be sold without exceeding the Maximum Number of Shares.
2.4.6 Withdrawal. Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in any Shelf Registration or Underwritten
Shelf Takedown, by giving written notice to the Parent of such request to withdraw prior to the
effectiveness of the Registration Statement. If Member Holders holding or beneficially owning at
least a majority in interest of the Registrable Securities included in a Shelf Registration
withdraw from the Shelf Registration the Parent shall cease all efforts to effect such registration
upon such request, without liability to any participating Member Holder. If Member Holders
requesting an Underwritten Shelf Takedown holding or beneficially owning at least a majority in
interest of the Registrable Securities included in a such Underwritten Shelf Takedown withdraw from
the Underwritten Shelf Takedown then such registration shall not count as a Demand Registration for
the purposes of Section 2.2.2. Notwithstanding any such withdrawal, the Parent shall pay all
expenses incurred by the holders of Registrable Securities in connection with such Shelf
Registration as provided in Section 3.3.
2.5 Underwritten Offerings.
2.5.1 Holders of Registrable Securities. In connection with any underwritten public
offering of equity securities of the Parent (an “Underwritten Offering”) as to which Member
Holders or other holders of Registrable Securities are included as selling holders, if requested by
the managing Underwriter for such
12
Underwritten Offering, each Member Holder or other holder of Registrable Securities
participating in such offering agrees to enter into a lock-up agreement, in addition to any other
lock-up agreement then in effect with respect to Registrable Securities, containing customary
restrictions on transfers of equity securities of the Parent (except with respect to such
securities as are proposed to be offered pursuant to the Underwritten Offering), or any securities
convertible into or exchangeable or exercisable for such securities, for a period not greater than
seven (7) days prior to and ninety (90) days after the date of pricing of such Underwritten
Offering (subject to extension in connection with any earnings release or other release of material
information pursuant to FINRA Rule 2711(f) to the extent applicable) (the “Lock-Up
Period”); provided, that the Member Holders shall not be subject to the provisions
hereof unless the Parent’s directors, officers, and any other Persons participating in such
offering shall have signed lock-up agreements containing substantially similar terms with the
managing Underwriter and if any such Person shall be subject to a shorter lock-up period, receives
more advantageous terms relating to the Lock-Up Period or receives a waiver of its lock-up period
from the Parent or an Underwriter, then the Lock-Up Period shall be such shorter period, on such
more advantageous terms and shall receive the benefit of that waiver; provided,
further, that nothing herein will prevent (i) any Member Holder or other such holder that
is a partnership, limited liability company or corporation from making a distribution of
Registrable Securities to the partners, members or stockholders thereof or a transfer to an
Affiliate that is otherwise in compliance with the applicable securities laws, so long as such
distributees or transferees agree to be bound by the restrictions set forth in this Section 2.5,
(ii) the exercise, exchange or conversion of any security exercisable or exchangeable for, or
convertible into, Common Stock, provided the Common Stock issued upon such exercise or conversion
shall be subject to the restrictions set forth in this Section 2.5. The provisions of this Section
2.5 will no longer apply to a Member Holder or other holder of Registrable Securities once such
Person ceases to hold Registrable Securities.
2.5.2 Parent. In connection with any Underwritten Offering filed pursuant to this
Agreement which includes Member Holders as selling holders (other than an Underwritten Offering
under Section 2.3 as to which Registration was initiated by the Parent and in which the Parent
sells any of its securities), if requested by the managing Underwriter for such Underwritten
Offering, the Parent shall not effect any public sale or distribution of its equity securities, or
any securities convertible into or exchangeable or exercisable for such securities (except with
respect to such securities as are proposed to be offered pursuant to such Underwritten Offering or
pursuant to registrations on Form S-8 or Form S-4 under the Securities Act), during the seven (7)
days prior to and the ninety (90) day period beginning on the date of pricing of such Underwritten
Offering or such shorter period as is requested by such managing Underwriter (subject to extension
in connection with any earnings release or other release of material information pursuant to FINRA
Rule 2711(f) to the extent applicable).
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Parent is required to effect the registration
of any Registrable Securities pursuant to Section 2, the Parent shall use commercially reasonable
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 (except that Section 3.1.1 shall not apply to the First Registration):
3.1.1 Filing Registration Statement. The Parent shall use commercially reasonable
efforts to, within forty-five (45) days after receipt of a request for a Demand Registration or the
Sponsor Demand Registration or pursuant to Section 2, prepare and file with the Commission a
Registration Statement on any form, for which the Parent then qualifies and which counsel for the
Parent shall deem appropriate (to the extent that the Registration Statement is a Form S-1, Parent
shall use its commercially reasonable efforts to convert such Registration Station to a
Registration Statement on Form S-3 as soon as practicable after the Company is eligible to use Form
S-3) 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
commercially reasonable efforts to cause such Registration Statement to become effective as of the
proposed date of effectiveness or as soon as practical thereafter and use its commercially
reasonable efforts to keep it effective until all Registrable Securities to which such Demand
Registration or Sponsor Demand Registration relates have been disposed, up to a maximum of 180 days
(extended by any period during which a stop order or injunction of the Commission or any other
governmental agency or court is in effect); provided, however, that, except with
respect to the First Registration, the Parent shall have the right to defer any Demand Registration
or Sponsor Demand Registration for the shortest possible period of
13
time (which such period may not be extended or renewed), up to sixty (60) 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 Parent shall
furnish to the holders a certificate signed by the Chief Executive Officer or Chairman of the Board
of Parent stating that, in the good faith judgment of the Board of Directors of the Parent, it
would be materially detrimental to the Parent and its stockholders for such Registration Statement
to be effected prior to the expiration of such period. The combined postponement periods relating
to all Demand Registrations and the Sponsor Demand Registration in any 12-month period shall not
exceed ninety (90) days. In determining whether the combined postponement periods have exceeded
ninety (90) days pursuant to the preceding sentence, the postponement periods of all Demand
Registrations and the Sponsor Demand Registration shall be counted separately, even if they
overlap.
3.1.2 Copies. The Parent shall, as far in advance as practicable but at least five (5)
days prior to filing a Registration Statement or prospectus, or any amendment or supplement
thereto, furnish without charge to the holders of Registrable Securities 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 of Registrable Securities 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 Parent shall, as promptly as practicable,
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 or for
any other reason, including but not limited to the filing of a post-effective amendment or
supplement to conduct any underwritten shelf takedown.
3.1.4 Notification. After the filing of a Registration Statement, the Parent 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
Parent 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. In the case where Parent, in its sole
discretion, believes that a confidentiality agreement is reasonably necessary, Parent shall not be
obligated to provide to a holder any information under this Section 3.1.4 until it receives an
executed copy of a confidentiality agreement, in form reasonably requested by Parent, from any
holder.
3.1.5 State Securities Laws Compliance. The Parent shall use its commercially
reasonable 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 of Registrable Securities included in such Registration Statement (in light
of their intended plan of distribution) may request, and promptly notify such holders of the
receipt of any notification with respect to the suspension of the qualification of Registrable
Securities for sale or offer in any such jurisdiction, 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 Parent and do any and
14
all other acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the disposition of
such Registrable Securities in such jurisdictions; provided, however, that the
Parent 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.
3.1.6 Underwriting. The Parent shall (i) enter into customary agreements (including,
if applicable, an underwriting agreement in customary form), which agreements may contain such
representations and warranties and covenants by the Parent and such other terms and provisions as
are customarily contained in underwriting agreements with respect to secondary distributions,
including indemnification and contribution provisions substantially to the effect and to the extent
provided in Section 4, and agreements as to the provision of opinions of counsel and accountants’
letters to the effect and to the extent provided in Section 3.1.9. and (ii) take such other
actions as are reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities. The holders of Registrable Securities on whose behalf the Registrable
Securities are to be distributed by such Underwriters shall be parties to any such underwriting
agreement, the representations, warranties and covenants of the Parent 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, and any or all of the conditions precedent to the obligations of such
Underwriters under such underwriting agreement shall be conditions precedent to the obligations of
such holders of Registrable Securities. No holders of Registrable Securities shall be required in
any such underwriting agreement to make any representations or warranties to or agreements with the
Company or the Underwriters other than representations, warranties or agreements regarding such
holder of Registrable Securities or such holder’s intended method of distribution and any other
representations required by law.
3.1.7 Cooperation. The principal executive officer of the Parent, the principal
financial officer of the Parent, the principal accounting officer of the Parent and all other
officers and members of the management of the Parent 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. In the case of an underwritten offering, the Parent shall use
its commercially reasonable efforts to have the senior executive officers of the Parent available
to participate in the customary “road show” presentations that may be reasonably requested by the
managing Underwriter or Underwriters in any such underwritten offering at mutually agreeable times
and locations and otherwise to facilitate, cooperate with, and participate in each proposed
offering contemplated herein and customary selling efforts related thereto.
3.1.8 Records. The Parent 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 Parent, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Parent’s officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
3.1.9 Opinions and Comfort Letters. The Parent shall furnish to each holder of
Registrable Securities included in any Registration Statement and, in an underwritten public
offering, to any Underwriter, a signed counterpart, addressed to such holder and such Underwriter
(if any), of (i) any opinion of counsel to the Parent dated the date of the closing under the
underwriting agreement (if any) (or if such offering is not underwritten, dated the effective date
of the Registration Statement) and (ii) any “cold comfort” letters dated as of the effective date
of the Registration Statement and brought down to the date of closing under the underwriting
agreement addressed to such underwriter and each such holder of Registrable Securities and signed
by the independent public accountants who have audited the financial statements of the Parent
included in such Registration Statement, in each such case covering substantially the same matters
with respect to such Registration Statement (and the prospectus included therein) as are
customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to
underwriters in connection with the consummation of underwritten public offerings of securities and
such other matters as such holders of Registrable Securities may reasonably request and, in the
case
15
of such accountants’ letter, with respect to events subsequent to the date of such financial
statements. In the event no legal opinion is delivered to any Underwriter, the Parent 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 Parent consistent
with the foregoing, including an opinion 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 Parent 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, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11 Other Registration Procedures. The Parent shall also:
(a) ensure that at the time of pricing the offering of any Registrable Securities, the
Registration Statement, the prospectus or prospectus supplement included in such Registration
Statement, as then in effect, and any free writing prospectus related thereto, includes all
information reasonably necessary such that a seller of such Registrable Securities would not be
liable under Section 12(a)(2) of the Securities Act, and such offering and the sale of such
Registrable Securities in connection therewith would not constitute a violation of Section 17(a)(2)
of the Securities Act;
(b) take all reasonable action to ensure that any free writing prospectus utilized in
connection with any registration covered by this Agreement complies in all material respects with
the Securities Act, is filed in accordance with the Securities Act to the extent required thereby,
is retained in accordance with the Securities Act to the extent required thereby and, when taken
together with the related prospectus and any free writing prospectus, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading;
(c) use commercially reasonable efforts to obtain all appropriate registrations, permits and
consents in connection therewith, and do any and all other acts and things (including, without
limitation, commercially reasonable efforts to promptly remove any such suspension) which may be
necessary or advisable to enable the Member Holders or other holders or any such underwriter to
consummate the disposition in such jurisdictions of the Registrable Securities covered by such
Registration Statement as reasonably requested;
(d) if requested by a majority in interest of holders of Registrable Securities included in
the Registration Statement or the managing underwriter(s), use its commercially reasonable efforts
to list all such Registrable Securities covered by such registration on each securities exchange
and automated inter-dealer quotation system on which shares of Common Stock are then listed;
(e) furnish for delivery in connection with the closing of any offering of Registrable
Securities pursuant to a registration effected pursuant to this Agreement unlegended certificates
representing ownership of the Registrable Securities being sold in such denominations as shall be
requested by holders of Registrable Securities in such offering or the underwriters, subject to
receipt of undertakings by Member Holders regarding compliance with the terms hereof;
(f) not later than the effective date of the applicable Registration Statement, provide (i) a
transfer agent and registrar (if the Parent does not already have such an agent), (ii) a CUSIP
number for all Registrable Securities included in such Registration Statement and (iii) the
applicable transfer agent with printed certificates for the Registrable Securities which are in a
form eligible for deposit with the Depository Trust Company or other applicable clearing agency;
and
(g) otherwise use its commercially reasonable efforts to comply with all applicable securities
laws, including the rules and regulations of the Commission.
16
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Parent of
the happening of any event of the kind described in Section 3.1.4(iii) or (iv), or, in the case of
a resale registration on Form S-3 pursuant to Section 2.4 hereof or upon any suspension by the
Parent, pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Parent’s Board of
Directors, of the ability of all “insiders” covered by such program to transact in the Parent’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 until such holder of Registrable Securities is advised in writing by the Parent that
the then current prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such prospectus or the
restriction on the ability of “insiders” to transact in the Parent’s securities is removed, as
applicable. The Parent shall provide such holders of Registrable Securities and/or the managing
underwriter, if any, with any such supplemented or amended prospectuses or additional or
supplemental filings, as the case may be. Notwithstanding anything to the contrary in this
Agreement, the Parent shall not exercise its rights under this Section 3.2 to suspend sales of
Registrable Securities for a period in excess of sixty (60) days consecutively or ninety (90) days
in any three hundred sixty five (365) -day period unless the suspension is required by law
(including the rules and regulations of the Commission) in the opinion of counsel to the Company.
3.3 Registration Expenses. Other than as set forth in the last sentence of this
paragraph, the Parent shall bear all costs, expenses and fees incurred in connection with all
registrations under this Agreement (including any takedowns related thereto), and all costs,
expenses and fees incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective or whether any holder of
Registrable Securities withdraws from any such registration, 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 Parent’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(d); (vi) FINRA fees; (vii) fees and disbursements of counsel for the Parent and fees
and expenses for independent certified public accountants retained by the Parent (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
Parent in connection with such registration; (ix) fees and expenses incurred in compliance with
Section 3.1.11; and (x) the fees and expenses of one legal counsel selected by the holders of a
majority of the Registrable Securities held by the Members included in such registration or, solely
with respect to a Sponsor Demand Registration, the Sponsor (fees and expenses with respect to any
other counsel shall not be paid by Parent). In an underwritten offering, the Parent 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 (for the sake of clarity, with respect to any other holder, brokers’
commissions or similar fees will not be borne by Parent).
3.4 Information. The holders of Registrable Securities shall provide such information
as may reasonably be requested by the Parent, 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 Parent’s obligation to comply with Federal and applicable
state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Parent. The Parent agrees to indemnify and hold harmless
the Member Holders and other parties to this Agreement whose Registrable Securities are included in
a registration statement filed pursuant to this Agreement (together with Member Holders, the
“Selling Holders”), and each of their respective officers, employees, affiliates,
directors, partners, members, attorneys and agents, and each Person(s), if any, who controls a
Selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a “Holder Indemnified Party”), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or based upon (a) any
untrue statement (or allegedly untrue statement) of a material fact contained in any Registration
Statement under which the sale of such Registrable
17
Securities was registered under the Securities Act, any preliminary prospectus, final
prospectus, free writing prospectus or summary prospectus contained in the Registration Statement,
(b) 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 Parent of the
Securities Act or any rule or regulation promulgated thereunder applicable to the Parent and
relating to action or inaction required of the Parent in connection with any such registration or
(c) any other information provided by the Parent, either directly or through the Underwriters, to
any purchaser of Registrable Securities in connection with or at the time of sale of such
Registrable Securities or any omissions of material facts that any purchaser of Registrable
Securities lacked at the time of sale of such Registrable Securities and the Parent shall promptly
reimburse the Holder Indemnified Party for any legal and any other expenses reasonably incurred by
such Holder Indemnified Party in connection with investigating and defending any such expense,
loss, judgment, claim, damage, liability or action; provided, however, that the
Parent 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, final
prospectus, free writing prospectus or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Parent, in writing, by such
selling holder expressly for use therein. If applicable, the Parent also shall indemnify any
Underwriter, 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.
4.2 Indemnification by Selling 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 or beneficially owned by such Selling Holder, indemnify and hold
harmless the Parent, 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, free writing 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 regarding such
Selling Holder furnished in writing to the Parent by such Selling Holder expressly for use therein,
and shall reimburse the Parent, 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.
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
18
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.
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 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.
4.5 State Securities Laws. Indemnification and contribution similar to that specified
in the preceding paragraphs of this Section 4 (with appropriate modifications) shall be given by
the Parent, the selling holders of Registrable Securities and the Underwriters with respect to any
required registration or other qualification of securities under any state law or regulation.
4.6 Non-Exclusivity. The obligations of the parties under this Section 4 shall be in
addition to any liability which any party may otherwise have to any other party.
4.7 Survival. The rights and obligations of the Parent and the Member Holders under
this Section 4 shall survive the termination of this Agreement.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Parent covenants that it shall use its reasonable best efforts to
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
19
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.
5.2 Due Diligence. In connection with the preparation and filing of each Registration
Statement registering Registrable Securities under the Securities Act pursuant to Section 2, but
not during any suspension period pursuant to Section 3.1.1 and Section 3.2, the Parent shall give
the holders of Registrable Securities included in such Registration Statement and the Underwriters,
if any, and their respective counsel and accountants such reasonable and customary access to its
books, records and properties and such opportunities to discuss the business and affairs of Parent
with its officers and the independent public accountants who have certified the financial
statements of the Parent as shall be necessary, in the opinion of such holders of Registrable
Securities and such Underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act and to establish a due diligence defense thereunder;
provided, that such holders and the Underwriters and their respective counsel and accountants
shall use their commercially reasonable efforts to coordinate any such investigation of the books,
records and properties of the Parent and, if requested by Parent, in its sole discretion, will
enter into confidentiality agreements in a form reasonably requested by Parent.
6. MISCELLANEOUS.
6.1 Other Registration Rights.
6.1.1 The Parent represents and warrants that, other than pursuant to this Agreement, no
Person has any right to require the Parent to register any shares of the Parent’s capital stock for
sale or to include shares of the Parent’s capital stock in any registration filed by the Parent for
the sale of shares of capital stock for its own account or for the account of any other Person.
6.1.2 This Agreement supersedes and replaces the Existing 00xx Xxxxxx GAC
Registration Rights Agreement in its entirety.
6.2 Assignment; Assumption.
6.2.1 Assignment; No Third Party Beneficiaries. Except as provided in this Section
6.2, this Agreement and the rights, duties and obligations of the Parent hereunder may not be
assigned or delegated by the Parent or the Member Holders or other parties in whole or in part.
Provided that the proposed permitted transferee agrees to execute a Joinder Agreement in
substantially the form attached hereto as Exhibit A(to the extent such party executes and
delivers a Joinder Agreement, a “Joining Stockholder”), this Agreement and the rights,
duties and obligations of a Member Holder (including EHL’s right to request the First Registration)
may be freely assigned or delegated by such Member Holder in conjunction with and to the extent of
any transfer by any such holder of Registrable Securities, securities of Parent or any subsidiary
exchangeable, convertible or exercisable for Registrable Securities, securities issued in
connection with a combination of securities, conversion, exchange, replacement, recapitalization,
merger, consolidation, or other reorganization or otherwise in exchange for Registrable Securities
or that would otherwise represent beneficial ownership of Registrable Securities, including without
limitation the New Crumbs Class B Exchangeable Units. This Agreement and the provisions hereof
shall be binding upon and shall inure to the benefit of each of the parties and its successors and
the permitted assigns of the Member Holders or of any assignee of the Member Holders. Parties
other than the Member Holders may assign their rights, duties and obligations under this Agreement
only with the written consent of the Parent. 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. A Member Holder that is part of a Member Group may designate a Joining
Stockholder as a “Designated Transferee” with respect to its Member Group in connection
with a transfer contemplated by this Section 6.2 by such Member Holder to such Joining Stockholder.
6.2.2 Assumption of Obligation Upon Certain Fundamental Changes. In the event of any
merger, sale of all or substantially all the assets of Parent, reorganization, reclassification,
exchange offer, or consolidation of or involving Parent that results in the reclassification,
exchange or conversion of the Registrable Securities into or for, inter alia, securities (“New
Securities”) of an issuer other than Parent (the “New Issuer”),
20
Parent shall cause the New Issuer to assume, and the New Issuer shall assume, by executing a
written instrument, the obligations of Parent under this Agreement as they relate to the New
Securities. In addition, the New Issuer shall acknowledge in such written instrument that this
Section 6.2.2. shall similarly apply to successive mergers, sales, reorganizations,
reclassifications, exchange offers, or consolidations.
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 Parent, to:
Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
If to the Sponsor, to:
00xx Xxxxxx GAC Holdings LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
If to the Representative, to:
Xxxxxx Xxxxxx & Co. Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax No.: (000) 000-0000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax No.: (000) 000-0000
with a copy, to:
XxXxxxxxx Will & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
21
If to the Member Holders, to the addresses set forth in Exhibit B hereto.
If to the Underwriter Holders (other than the Representative), to the addresses set forth in
Exhibit C hereto.
If to the Expense Holders, to the addresses set forth in Exhibit D hereto.
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 Modification and Amendment; Further Assurances.
6.7.1 Amendment. The provisions of this Agreement (including the provisions of this
sentence) applicable to the rights, duties and obligations of Member Holders may not be amended,
modified or supplemented, without the written consent of the Parent and Member Holders holding or
beneficially owning at least fifty percent (50%) of the Registrable Securities then issued and
outstanding or, with respect to EHL Additional Shares, without the written consent of Parent and
EHL or its Designated Transferee; provided, that in the event that such amendment,
modification or supplement would be materially adverse to any Member Holder or Member Group, then
such amendment or waiver will require the consent of such Member Holder or Member Group,
respectively. The provisions of this Agreement (including the provisions of this sentence)
applicable to the rights, duties and obligations of the Sponsor, the Underwriter Holders or the
Expense Holders, as the case may be, may not be amended, modified or supplemented, without the
written consent of the Parent and, as applicable, the Sponsor, a majority in interest of the
Insider Shares or a majority in interest of the Expense Shares.
6.7.2 Further Assurances. Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party hereto may reasonably
require in order to effectuate the terms and purposes of this Agreement.
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 Interpretation. Whenever the words “include,” “includes” or “including” are used
in this Agreement, they shall be deemed to be followed by the words “without limitation.” The
words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. The parties have participated jointly in the negotiation and drafting of this
Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
6.10 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
22
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.
6.11 Specific Performance; Remedies Cumulative. In the event that the Parent fails to
observe or perform any covenant or agreement to be observed or performed under this Agreement, the
Member Holders 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.
6.12 Governing Law. This Agreement shall be governed by, interpreted under, and
construed in accordance with the internal laws of the State of Delaware applicable to agreements
made and to be performed within the State of Delaware, without giving effect to any choice-of-law
provisions thereof that would compel the application of the substantive laws of any other
jurisdiction.
6.13 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 or the
transactions contemplated hereby.
6.14 Exchange Agreement Matters. For purposes of this Agreement and notwithstanding
anything to the contrary, holders of New Crumbs Class B Exchangeable Units shall be deemed to
beneficially own and/or hold the shares of Common Stock issuable upon exchange of such New Crumbs
Class B Exchangeable Units and shall not be required to exchange such units in order to exercise
any rights hereunder except in conjunction with the timely delivery of any shares of Common Stock
required to be delivered to complete a transfer contemplated by a Registration Statement. The
Parent shall use commercially reasonable efforts to ensure that the settlement procedures related
to any Registration Statement, including those set forth in any underwriting agreement to which the
Parent is a party, provide sufficient time for such holders to provide notice in accordance with
the Exchange Agreement after the relevant settlement date has been definitively determined and
cause such shares of Common Stock to be timely delivered to the recipient of such shares.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
| 57TH STREET GENERAL ACQUISITION CORP. |
||||
| By: | /S/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | CFO | |||
S-1
[Signature Page to Registration Rights Agreement]
| MEMBER HOLDERS: |
||||
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
| /s/ Xxx Xxxxx | ||||
| Xxx Xxxxx | ||||
| /s/ Xxxxxx Xxxxx | ||||
| Xxxxxx Xxxxx | ||||
| CRUMBS, INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | President | |||
| EHL HOLDINGS LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chairman | |||
| /s/ Xxxx X. Ireland | ||||
| Xxxx X. Ireland | ||||
S-2
[Signature Page to Registration Rights Agreement]
| SPONSOR: 57TH STREET GAC HOLDINGS, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Manager | |||
| REPRESENTATIVE AND EXPENSE HOLDER: XXXXXX XXXXXX & CO. INC. |
||||
| By: | /s/ Xxxx Xxx Xxxxxxxxx | |||
| Name: | Xxxx Xxx Xxxxxxxxx | |||
| Title: | Vice Chair | |||
| UNDERWRITER HOLDERS AND EXPENSE HOLDERS: LADENBURG XXXXXXXX & CO. INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| I-BANKERS SECURITIES INCORPORATED |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | CFO | |||
| MAXIM GROUP LLC |
||||
| By: | /s/ Xxxx XxXxxx | |||
| Name: | Xxxx XxXxxx | |||
| Title: | Senior Managing Director | |||
| XXXXXX & XXXXXXX, LLC |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Sr. Managing Director | |||
S-3
[Signature Page to Registration Rights Agreement]
| EXPENSE HOLDERS: AKIN GUMP XXXXXXX XXXXX & XXXX, LLP |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | Partner | |||
| ELLENOFF XXXXXXXX & SCHOLE LLP |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Elenoff | |||
| Title: | Partner | |||
| XXXXXXX XXXX LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Member | |||
| INTEGRATED CORPORATE RELATIONS INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | CEO | |||
S-4
[Signature Page to Registration Rights Agreement]
Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT to the Registration Rights Agreement (the “Joinder Agreement”)
is made and entered into as of ______ by and among [57th Street General Acquisition
Corp.], a Delaware corporation (the “Parent”), and the undersigned (the “Joining
Stockholder(s)”), and relates to that certain Registration Rights Agreement dated as of __(as
amended from time to time, the “Registration Rights Agreement”), by and among the Parent
and the members of Crumbs Holdings LLC, a Delaware limited liability company (“Crumbs”), as
set forth on the signature pages thereto and any other Joining Stockholder permitted by Section 6.2
thereof (each a “Member Holder” and, collectively, the “Member Holders”).
Capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the
Registration Rights Agreement.
WHEREAS, the Joining Stockholder(s) [is][are] acquiring New Crumbs Class B Exchangeable Units,
shares of Common Stock of Parent into which such New Crumbs Class B Exchangeable Units have been
converted or other Registrable Securities, and in connection therewith, the Corporation has agreed
to grant certain registration rights to such Joining Stockholder(s) as provided for in the
Registration Rights Agreement; and
WHEREAS, the Joining Stockholder(s) [has][have] agreed to become a party to the Registration
Rights Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Agreement to be Bound. [Each][The] Joining Stockholder agrees that, upon the
execution of this Joinder Agreement, such Joining Stockholder shall become a party to the
Registration Rights Agreement and shall be fully bound by, and subject to, all of the covenants,
terms and conditions of the Registration Rights Agreement and such Joining Stockholder(s) shall be
deemed a “Joining Stockholder” thereunder for all purposes.
2. Notices. The address, facsimile number and email address to which notices
delivered pursuant to the Registration Rights Agreement may be sent to the Joining Stockholder(s)
is as follows:
3. Binding Effect. This Joinder Agreement shall be binding upon and shall inure to
the benefit of, and be enforceable by, the Parent, the Member Holders and the Joining
Stockholder(s) and their respective heirs, personal representatives, successors and assigns.
4. Severability. The invalidity or unenforceability of any particular provision of
this Joinder Agreement shall not affect the other provisions hereof or thereof, and this Joinder
Agreement shall be construed in all respects as if such invalid or unenforceable provision was
omitted. In the case of any such invalidity or unenforceability, the parties hereto agree to use
all commercially reasonable efforts to achieve the purpose of such provisions by a new legally
valid and enforceable stipulation.
5. Captions. This Joinder Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
6. Counterparts. This Joinder Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
7. Governing Law. This Joinder Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, all rights and remedies being
governed by such laws, without regard to its conflicts of law rules.
Signature Page Follows
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be duly executed
as of the date first set forth above.
[57TH STREET GENERAL ACQUISITION CORP]. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [THE JOINING STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit B
Member Holders’ Addresses
Xxxxx Xxxxx:
Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Xxx Xxxxx:
c/o Xxxxx Xxxxx
Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
c/o Xxxxx Xxxxx
Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Xxxxxx Xxxxx:
000 Xxxx 00xx Xxxxxx
Xxx 00X
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
000 Xxxx 00xx Xxxxxx
Xxx 00X
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Crumbs, Inc.:
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
EHL Holdings LLC:
Xxxxx Xxxxx:
000 X. Xxxxxx Xx. Xxx 0
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx Xxxxx:
000 X. Xxxxxx Xx. Xxx 0
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx X. Ireland
c/o Crumbs Holdings LLC
00000 Xxxxxxxxx Xx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
c/o Crumbs Holdings LLC
00000 Xxxxxxxxx Xx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Exhibit C
Underwriter Holders’ Addresses
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
I-Bankers Securities Incorporated
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Facsimile: 000-000-0000
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Facsimile: 000-000-0000
Maxim Group LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxx
Facsimile: 000-000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxx
Facsimile: 000-000-0000
Xxxxxx & Xxxxxxx, LLC
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
Exhibit D
Expense Holders’ Addresses
Akin Gump Xxxxxxx Xxxxx & Xxxx, LLP
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
Ellenoff Xxxxxxxx & Schole LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
Xxxxxxx Xxxx LLC
000 Xxxxx Xxxxxx, 00X
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx, 00X
Xxx Xxxx, XX 00000
Integrated Corporate Relations, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile: 000-000-0000
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile: 000-000-0000
