BROADSTONE NET LEASE, INC. REGISTRATION RIGHTS AGREEMENT Dated February 7, 2020
TABLE OF CONTENTS
| Article I DEFINITIONS |
2 | |||||
| Section 1.1 |
Certain Definitions |
2 | ||||
| Article II REGISTRATION RIGHTS |
6 | |||||
| Section 2.1 |
Shelf Registration Statement |
6 | ||||
| Section 2.2 |
Demand Registration Rights |
7 | ||||
| Section 2.3 |
Company Public Offerings |
9 | ||||
| Section 2.4 |
Registration Suspension |
10 | ||||
| Section 2.5 |
Holdback Agreement |
11 | ||||
| Section 2.6 |
Registration Procedures |
11 | ||||
| Section 2.7 |
Registration Expenses |
15 | ||||
| Section 2.8 |
Indemnification |
16 | ||||
| Section 2.9 |
Transfer of Registration Rights |
19 | ||||
| Section 2.10 |
Current Public Information |
20 | ||||
| Section 2.11 |
General Rules Applicable to Registration Statements |
21 | ||||
| Section 2.12 |
In-Kind Distributions |
21 | ||||
| Article III MISCELLANEOUS |
21 | |||||
| Section 3.1 |
Notices |
21 | ||||
| Section 3.2 |
Counterparts |
21 | ||||
| Section 3.3 |
Assignment |
21 | ||||
| Section 3.4 |
Termination |
21 | ||||
| Section 3.5 |
Descriptive Headings |
22 | ||||
| Section 3.6 |
Specific Performance |
22 | ||||
| Section 3.7 |
Governing Law |
22 | ||||
| Section 3.8 |
Severability |
22 | ||||
| Section 3.9 |
Waiver of Jury Trial; Consent to Jurisdiction |
22 | ||||
| Section 3.10 |
Amendments; Entire Agreement |
22 | ||||
| Section 3.11 |
Merger or Consolidation |
23 | ||||
| Section 3.12 |
No Recourse |
23 | ||||
i
This Registration Rights Agreement (this “Agreement”) is made and entered into as of February 7, 2020, by and among Broadstone Net Lease, Inc., a Maryland corporation (the “Company”), Broadstone Net Lease, LLC, a New York limited liability company and subsidiary of the Company and of which the Company is the managing member (“BNL OP”), the members of BNL OP listed on the signature page hereof (the “Members”) and the stockholders of the Company listed on the signature page hereof.
WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 11, 2019, by and among Broadstone Real Estate, LLC, a New York limited liability company (“BRE”), Trident BRE Holdings I, Inc., a Delaware corporation, Trident BRE Holdings II, Inc., a Delaware corporation, the Company, BNL OP, Broadstone Net Lease Sub 1, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, Broadstone Net Lease Sub 2, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, and, solely for purposes of Sections 6.18, 6.19 and 6.20 thereof, Trident BRE Holdings I, L.P., a Delaware limited partnership, and Trident BRE Holdings II, L.P., a Delaware limited partnership, upon the Closing (as defined in the Merger Agreement), BRE will be merged with and into BNL OP, with BNL OP surviving the merger;
WHEREAS, upon the Closing, certain of the units of BRE will be converted into the right to receive OP Units (as defined below);
WHEREAS, the Company and certain of the Members are parties to the Amended and Restated Operating Agreement of BNL OP, dated as of December 31, 2007, as amended by Amendment No. 1, dated as of the date hereof (as may be further amended, amended and restated or otherwise modified from time to time, the “BNL OP Operating Agreement”), establishing and setting forth, among other things, their agreement with respect to certain rights and obligations associated with ownership of Membership Units, as defined in the BNL OP Operating Agreement (the “OP Units”);
WHEREAS, as of the date hereof, the Company is contemplating an initial public offering of shares of its Class A Common Stock (the “IPO”); and
WHEREAS, in connection with the contemplated IPO and the entry into the BNL OP Operating Agreement, the Company has agreed to grant certain holders of its securities the registration rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:
“Adverse Disclosure” shall have the meaning set forth in Section 2.2.3 of this Agreement.
“Affiliate” means with, respect to a specified Person, any Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, the specified Person, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by contract, as trustee or executor or otherwise.
“Affiliated Investor” means, with respect to any Holder, (a) any investment fund or holding company that is directly or indirectly managed or advised by a manager or advisor of such Holder or any of its Affiliates and (b) any of its Affiliates or any other Person who or which is otherwise an Affiliate of any such Holder (other than the Company and its subsidiaries).
“Agreement” shall have the meaning set forth in the Preamble of this Agreement.
“BNL OP” shall have the meaning set forth in the Preamble of this Agreement.
“BNL OP Operating Agreement” shall have the meaning set forth in the Recitals of this Agreement.
“Board of Directors” means the Board of Directors of the Company.
“BRE” shall have the meaning set forth in the Recitals of this Agreement.
“Business Day” means any day excluding a Saturday, a Sunday and any other day on which banks are required or authorized to close in New York.
“Common Stock” means the shares of common stock, par value $0.001 per share, of the Company.
“Common Stock Equivalents” means any rights, warrants, options, convertible securities or indebtedness, exchangeable securities or indebtedness, or other rights, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock and securities convertible or exchangeable into Common Stock, whether at the time of issuance or upon the passage of time or the occurrence of such future event, including OP Units.
“Company” shall have the meaning set forth in the Preamble of this Agreement.
“Company Notice” means written notice of a Company Public Offering.
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“Company Public Offering” shall have the meaning set forth in Section 2.3(a) of this Agreement.
“Demand Notice” shall have the meaning set forth in Section 2.2.2(b) of this Agreement.
“Demand Offering” shall have the meaning set forth in Section 2.2.1(a) of this Agreement.
“Demand Registrable Shares” shall mean Registrable Shares issued to or owned by the Trident Holders.
“Demand Registration Statement” shall have the meaning set forth in Section 2.2.1(a) of this Agreement.
“Demand Request” shall have the meaning set forth in Section 2.2.1(a) of this Agreement.
“Effective Date” means the effective date of the Company’s registration statement on Form S-1 filed in connection with the IPO.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations promulgated by the SEC thereunder.
“Excluded Registration” means a registration under the Securities Act of (a) securities registered on Form S-4 or S-8 or any similar successor forms, (b) securities registered in connection with a “bought deal” or “block trade” by the Trident Holders and (c) securities registered to effect the acquisition of, or combination with, another Person, other than in each case the registration and sale of securities by the Company in which it receives cash proceeds.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Holder” means each Trident Holder and Xxxx Family Member.
“Holder Affiliates” shall have the meaning set forth in Section 2.8(a) of this Agreement.
“Inspectors” shall have the meaning set forth in Section 2.6(h) of this Agreement.
“IPO” shall have the meaning set forth in the Recitals of this Agreement.
“Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of Registrable Shares.
“Launch Date” shall have the meaning set forth in Section 2.5(a) of this Agreement.
“Lockup Period” shall have the meaning set forth in Section 2.5(b) of this Agreement.
“Majority Requesting Holders” shall have the meaning set forth in Section 2.2.2(c) of this Agreement.
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“Material Adverse Effect” shall have the meaning set forth in Section 2.2.2(c) of this Agreement.
“Members” shall have the meaning set forth in the Preamble of this Agreement.
“Merger Agreement” shall have the meaning set forth in the Recitals of this Agreement.
“OP Units” shall have the meaning set forth in the Recitals of this Agreement.
“Permitted Transferee” shall have the meaning set forth in Section 2.9(a) of this Agreement.
“Person” shall mean an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity.
“Piggyback Notice” shall have the meaning set forth in Section 2.3(a) of this Agreement.
“Piggyback Registration” shall have the meaning set forth in Section 2.3(a) of this Agreement.
“Primary Shares” means shares of Common Stock issued by the Company after the date hereof.
“Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.
“Public Offering” means an underwritten public offering and sale of Common Stock pursuant to a registration statement, including a “bought” deal or “overnight” public offering.
“Records” shall have the meaning set forth in Section 2.6(h) of this Agreement.
“Redemption Shares” shall mean Common Stock issued by the Company, from time to time, to Holders in exchange for OP Units pursuant to the terms of the BNL OP Operating Agreement.
“register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.
“Registrable Shares” shall mean, with respect to any Holder, (a) shares of Common Stock owned immediately following the closing of the IPO; (b) the shares of Common Stock issued pursuant to the Merger Agreement; (c) Redemption Shares; and (d) any additional securities issued or issuable as a dividend or distribution on, in exchange for, or otherwise in respect of, such shares of Common Stock or Redemption Shares (including by way of share dividend or stock split or in connection with a combination of shares, recapitalization, merger,
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consolidation or other reorganization or otherwise and any shares of Common Stock issuable upon conversion, exercise or exchange thereof); provided, however, that Registrable Shares shall not include any shares of Common Stock (i) that have been sold pursuant to an effective registration statement under the Securities Act; (ii) that have been sold pursuant to Rule 144 under the Securities Act; (iii) that have been transferred to anyone other than a Permitted Transferee; or (iv) that have ceased to be outstanding.
“Registration Expenses” shall have the meaning set forth in Section 2.7 of this Agreement.
“Registration Statement” means a Shelf Registration Statement or a registration statement filed in order to effect a Demand Offering or a Company Public Offering.
“Registration Suspension” shall have the meaning set forth in Section 2.4 of this Agreement.
“Required Filing Date” shall have the meaning set forth in Section 2.2.1(a) of this Agreement.
“SEC” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations promulgated by the SEC thereunder.
“Shelf Period” shall have the meaning set forth in Section 2.1(b) of this Agreement.
“Shelf Registration Statement” shall have the meaning set forth in Section 2.1(a) of this Agreement.
“Shelf Resale” shall have the meaning set forth in Section 2.1(c) of this Agreement.
“Xxxx Family Member” shall mean any of Broadstone Ventures, LLC, Xxx X. Xxxx, Xxxxxx X. Xxxx as General Trustee of the Irrevocable Trust FBO Xxxxxxxx X. Xxxx dated December 18, 2017, and Xxxxxx X. Xxxx as General Trustee of the Irrevocable Trust FBO Xxxx X. Xxxx dated December 18, 2017, and their Permitted Transferees.
“Trident Holders” shall mean any fund managed by Stone Point Capital LLC and their Affiliates and Permitted Transferees, including, without limitation, Trident BRE, LLC, Trident BRE Holdings I Ltd and Trident BRE Holdings II Ltd.
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ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Shelf Registration Statement.
(a) The Company shall use commercially reasonable efforts to prepare and file with the SEC, on or before the date that is 180 days following the IPO, one or more registration statements on (i) Form S-3, or (ii) Form S-11, if for any reason the Company is not eligible to use Form S-3, or a successor form (a “Shelf Registration Statement”), relating to the redemption of OP Units and the offer and sale on a delayed or continuous basis in accordance with Rule 415 under the Securities Act of all Registrable Shares by the Holders from time to time and, if any such Shelf Registration Statement does not become effective automatically, shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as reasonably practicable; provided, however, that the Company shall not be required to file a Shelf Registration Statement on Form S-11 unless (a) the Company shall not have filed or caused to become effective a Shelf Registration Statement on Form S-3 by the first anniversary of the IPO or (b) the Company thereafter becomes ineligible to use Form S-3 for such Shelf Registration Statement.
(b) The Company shall use commercially reasonable efforts to keep a Shelf Registration Statement continuously effective under the Securities Act (including, but not limited to, the preparation and filing of any amendments and supplements necessary for that purpose) in order to permit the Prospectus forming a part thereof to be usable by Holders until the date as of which the holders of Registrable Shares no longer own any Registrable Shares (such period of effectiveness, the “Shelf Period”). The Company shall not be deemed to have used commercially reasonable efforts to keep a Shelf Registration Statement effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders covered by a Shelf Registration Statement not being able to offer and sell any Registrable Shares pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is (i) a Registration Suspension or (ii) required by applicable law.
(c) Except as otherwise provided in this Agreement and subject to any applicable transfer restrictions in the BNL OP Operating Agreement and applicable law, each Holder shall be entitled, at any time and from time to time when a Shelf Registration Statement is effective, to sell its Registrable Shares then registered pursuant to such Shelf Registration Statement, which resale may be underwritten (each, a “Shelf Resale”), provided, however, that any underwritten Shelf Resale shall be subject to the applicable terms, conditions and limitations set forth in Section 2.2.1(a) and the first sentence of Section 2.2.1(b). Except as otherwise provided in Section 2.2 below, a Holder initiating a Shelf Resale shall not be required to permit the offer and sale of Registrable Shares by any other Holders in connection with any such Shelf Resale.
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Section 2.2 Demand Registration Rights.
2.2.1. Demand Requests.
(a) Except as otherwise provided in this Section 2.2, any one or more of the Trident Holders may request the Company in writing (a “Demand Request”) to sell all or any portion of its or their Registrable Shares pursuant to a Registration Statement (each, a “Demand Offering”). Upon receipt of such Demand Request from the Trident Holders, the Company shall use commercially reasonable efforts to (i) prepare and file, on or before the date that is (A) 75 days after receiving such Demand Request in the case of a registration statement on Form S-11 or (B) 30 days after receiving such Demand Request in the case of a registration statement on Form S-3 (the “Required Filing Date”), a registration statement relating to the Demand Registrable Shares (a “Demand Registration Statement”) and (ii) if such Demand Registration Statement does not become effective automatically, cause such Demand Registration Statement to be declared effective by the SEC as promptly as reasonably practicable; provided, however, that in no event shall the Company be obligated under this Section 2.2 to (x) file a Demand Registration Statement prior to the IPO or the expiration of any underwriter’s lock-up period in connection with the IPO; and (y) file more than two (2) Demand Registration Statements. Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the aggregate value of the Registrable Shares included in such request at the time of such request exceed $50,000,000 or such request includes all Registrable Shares owned by the requesting Trident Holders at such time.
(b) Notwithstanding the foregoing, no Demand Registration Statement shall be deemed to have been filed for purposes of this Section 2.2.1 if such Demand Registration Statement (i) does not become effective, (ii) is not maintained effective for 90 days (or such shorter period as shall terminate when all Registrable Shares covered by such Demand Registration Statement have been sold), (iii) in an underwritten Demand Offering is subject to a cutback in accordance with Section 2.2.2(c) and fails to include at least 80% of the Demand Registrable Shares proposed to be included by the Trident Holders in such Demand Registration Statement, or (iv) the Demand Offering pursuant to such Demand Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court. The Company shall bear and pay all Registration Expenses (as provided in Section 2.7); provided, however, that in the event the Trident Holders revoke a Demand Request or withdraw a Demand Offering (which revocation or withdrawal may only be made prior to the Company requesting acceleration of effectiveness of the relevant Demand Registration Statement or, in the case of a shelf takedown, prior to the signing of an underwriting agreement or similar agreement), other than an automatic withdrawal pursuant to Section 2.2.3, and the Company has incurred Registration Expenses and not been reimbursed by the Trident Holders, then the Demand Registration Statement shall count as having been filed for purposes of this Section 2.2.1.
(c) The right to issue a Demand Request under this Section 2.2 is non-transferable and shall not be assigned to any transferee of Registrable Shares, including any Permitted Transferee, except in the case of a transfer by the Trident Holders to a Permitted Transferee of Registrable Shares representing not less than 50% of Registrable Shares held by the Trident Holders as of the date hereof.
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2.2.2. General Procedures.
(a) Each Demand Request shall specify: (i) the number of Demand Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the Xxxx Family Members. Notwithstanding the foregoing or any other provision of this Agreement, the Company shall not give any Demand Notice to any Xxxx Family Member as to any Demand Offering that is a “bought deal” or a “block trade” by the Trident Holders without the consent of the Trident Holders. Each Xxxx Family Member and each Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request.
(c) If a Demand Offering shall be underwritten, the Holders of a majority of the Registrable Shares included in a Demand Request (the “Majority Requesting Holders”) shall have the right to (i) select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company) and (ii) determine the plan of distribution, in each case, subject to the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Except in the case of a “bought deal” or “block trade” by the Trident Holders, if such firm or firms advise the Company, the Trident Holders and any participating Xxxx Family Member that, in the reasonable opinion of such firm or firms, the number of Registrable Shares and Primary Shares requested to be included in the Demand Offering would materially delay or jeopardize the success of the offering (including the offering price per share) (a “Material Adverse Effect”), then, unless otherwise agreed by the parties, the Company shall include in such Demand Offering, such number of Registrable Shares which can be so sold without causing a Material Adverse Effect according to the following priority: first, those of the Trident Holders; second, those of any Xxxx Family Member; and third, any Primary Shares or shares of Common Stock proposed to be registered for the account of the Company or any other holders of Common Stock, as the case may be.
2.2.3. Deferral of Filing. If a Demand Request is received and there is not an effective Shelf Registration Statement on file with the SEC, the Company may, upon prior written notice to the Holders, defer (but not more than twice in any 12-month period, and not within 120 days of any prior deferral) the filing or effectiveness (but not the preparation) of the Registration Statement or any amendment or supplement for a Shelf Registration Statement for the Demand Offering for a reasonable period of time not to exceed 60 days after the Required Filing Date (or, if longer, 60 days after the filing date of the registration statement contemplated by clause (b) below) if (a) at the time the Company receives the Demand Request, the Company or any of its subsidiaries is engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in connection with such Registration Statement (but would not be required if such Registration Statement were not filed), and the Board of Directors determines in good faith that such disclosure would be materially detrimental to the Company
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and its stockholders (an “Adverse Disclosure”), or (b) prior to receiving the Demand Request, the Board of Directors had determined to effect a Company Public Offering pursuant to Section 2.3, and the Company had taken substantial steps (including, without limitation, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a Registration Statement pursuant to this Section 2.2.3 shall be lifted, and the Registration Statement shall be filed promptly, if, in the case of a deferral pursuant to clause (a) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (b) of the preceding sentence, the proposed Company Public Offering is completed or abandoned. In order to defer the filing of a Registration Statement pursuant to this Section 2.2.3, the Company shall promptly (but in any event within five (5) days), upon determining to seek such deferral, deliver to each Holder requesting inclusion of Registrable Shares in the Demand Offering a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.2.3 and an approximation of the length of the anticipated delay. On the 20th day after the Trident Holders have received such certificate, the Demand Request shall be deemed withdrawn automatically unless, prior to such 20th day, the Trident Holders deliver to the Company a written notice to the effect that they do not want the Demand Request to be withdrawn.
Section 2.3 Company Public Offerings.
(a) Except with respect to a Demand Offering, the procedures for which are addressed in Section 2.2, if the Company proposes to do a Public Offering of Primary Shares (other than (i) the IPO or (ii) an Excluded Registration) (a “Company Public Offering”), then, each such time after the IPO, the Company shall give prompt written notice of such Company Public Offering (no later than ten (10) days prior to the filing of the Registration Statement for such Company Public Offering or, if such Company Public Offering is pursuant to an effective Shelf Registration Statement, no later than two (2) Business Days prior to the launch of such Company Public Offering (in each case, a “Piggyback Notice”)) to the Trident Holders and the Xxxx Family Members holding Registrable Shares. The Piggyback Notice shall offer the Trident Holders and the Xxxx Family Members the opportunity to include (or cause to be included) in such Company Public Offering the number of Registrable Shares as each such Xxxx Family Member and/or Trident Holder may request (a “Piggyback Registration”). Subject to Section 2.3(c) hereof, the Company shall use commercially reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Registrable Shares requested to be included in a Piggyback Registration to be included on the same terms and conditions as any Primary Shares or other Registrable Shares included in such Company Public Offering. The Holders participating in the Piggyback Registration shall be permitted to withdraw all or part of the Registrable Shares from a Piggyback Registration at any time at least two (2) Business Days prior to the effective date or launch date, as applicable, of such Piggyback Registration. The Company shall not be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration beyond the earlier to occur of (x) one hundred and eighty (180) days after the effective date thereof and (y) consummation of the distribution by the Holders of the applicable Registrable Shares included in such Registration Statement.
(b) If any time after giving such Piggyback Notice and prior to the effective date of the Registration Statement filed in connection with such Company Public Offering, or the
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launch date of the Company Public Offering if pursuant to an effective Shelf Registration Statement, the Company shall determine for any reason not to register and sell the securities originally intended to be included in such registration, the Company may, at its election, give written notice of such determination to the Holders participating in the Piggyback Registration and thereupon the Company shall be relieved of its obligation to register and sell such Registrable Shares in connection with the registration and sale of securities originally intended to be included in such registration.
(c) If, in connection with a Company Public Offering, the managing underwriter or underwriters advise the Company that the inclusion of all Primary Shares and Registrable Shares requested to be included would cause a Material Adverse Effect, the Company shall include in such Company Public Offering the number of Primary Shares and Registrable Shares which can be so sold without causing a Material Adverse Effect in the following order of priority; first, any Primary Shares to be sold by the Company for its own account, second, Registrable Shares owned by the Trident Holders, and third, all other shares of Common Stock (including Registrable Shares) proposed to be included in the Company Public Offering pro rata on the basis of the number of shares of Common Stock owned by such other Holders who requested to be included in such Company Public Offering, as applicable.
Section 2.4 Registration Suspension. If the continued use of any Registration Statement filed and declared effective pursuant to this Agreement and which registers Registrable Shares at any time would require the Company to make an Adverse Disclosure, the Company may, upon giving written notice of such action to the Holders of Registrable Shares covered by such Registration Statement, suspend all such Holders’ ability to use such Registration Statement or otherwise make purchases of the Company’s securities for a reasonable period of time not in excess of 60 days, and not more than twice in any twelve (12) month period or within 120 days of any prior suspension (a “Registration Suspension”). Each such Holder shall keep confidential the fact that a Registration Suspension is in effect, the notice referred to above and its contents and the reason therefor unless and until otherwise notified by the Company, except (a) for disclosure to such Holder’s employees, agents and professional advisers who reasonably need to know such information for purposes of assisting the Holder with respect to its investment in the Company and agree to keep it confidential, (b) for disclosures to the extent required in order to comply with reporting obligations to its limited partners or other direct or indirect investors who have agreed to keep such information confidential, (c) if and to the extent such matters are publicly disclosed and (d) as required by law, rule or regulation or legal process. In the case of a Registration Suspension, upon receipt of such written notice, the Holders of Registrable Shares covered by the applicable Registration Statement agree to suspend use of the applicable Prospectus and any Issuer Free Writing Prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Shares, upon delivery of the notice referred to above. The Company shall immediately notify the Holders of Registrable Shares covered by the applicable Registration Statement upon the termination of any Registration Suspension, otherwise amend or supplement the applicable Prospectus and any Issuer Free Writing Prospectus, if necessary, so it does not contain any untrue statement or omission of a material fact and furnish to the Holders of Registrable Shares covered by the applicable Registration Statement such numbers of copies of the applicable Prospectus and any Issuer Free Writing Prospectus as so amended or supplemented as the Holders may reasonably request. The Company shall, if necessary, supplement or make
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amendments to the applicable Registration Statements as may reasonably be requested by a Holder of Registrable Shares covered by such Registration Statement.
Section 2.5 Holdback Agreement.
(a) In connection with any Demand Offering, the Company shall not effect any public sale of any shares of Common Stock or Common Stock Equivalents during the ten (10) Business Days, or such shorter period beginning with delivery of a Demand Notice or Company Notice, as applicable, prior to the anticipated date such Demand Offering is expected to be launched (the “Launch Date”) and during such time period after the pricing of such Demand Offering (not to exceed 90 days or sixty (60) days after the first Demand Offering) as the Company and the managing underwriter may agree, in each case except as part of such Demand Offering, pursuant to an Excluded Registration or as otherwise agreed between the Company and the managing underwriter for such Demand Offering.
(b) In connection with any Demand Offering or any Company Public Offering, each Holder shall not effect (subject to any exceptions the managing underwriter may agree) any public sale or private offer or distribution of any shares of Common Stock or Common Stock Equivalents during the ten (10) Business Days, or such shorter period beginning with delivery of a Demand Notice, Company Notice or Piggyback Notice, as applicable, prior to the anticipated Launch Date for such Demand Offering or Company Public Offering and during such time period after the pricing of such Demand Offering or Company Public Offering (not to exceed ninety (90) days or sixty (60) days after the first Demand Offering) (except as part of such offering) as the managing underwriter and the Company may agree (the “Lockup Period”). Each Holder shall receive the benefit of any shorter Lockup Period or permitted exceptions (on a pro rata basis) agreed to by the managing underwriter for any Public Offering pursuant to this Agreement; provided, however, that nothing herein will prevent any Holder that is a limited liability company, partnership or corporation from making a distribution of shares of Common Stock or Common Stock Equivalents to the members, partners 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 (subject to any exceptions the managing underwriter may agree). Each Holder agrees to execute a lock-up agreement in favor of the underwriters to such effect and, in any event, that the underwriters in any relevant Public Offering shall be third-party beneficiaries of this Section 2.5.
(c) Any discretionary waiver or termination of the requirements under the foregoing provisions made by the managing underwriter shall apply to each Holder on a pro rata basis in accordance with the number of Registrable Shares owned by each such Holder.
(d) The obligations of any Person under this Section 2.5 are not in limitation of holdback or transfer restrictions that may otherwise apply by virtue of any other agreement or undertaking.
Section 2.6 Registration Procedures. In connection with the Company’s obligations hereunder and subject to the applicable terms and conditions set forth herein, the Company shall use commercially reasonable efforts to:
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(a) prepare and file with the SEC a Registration Statement on any appropriate form under the Securities Act with respect to such Registrable Shares and use commercially reasonable efforts to cause such Registration Statement to become effective by the SEC as promptly as reasonably practicable; and to remain continuously effective; provided, however, that before filing a Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or otherwise make available to the Holders of Registrable Shares covered by such Registration Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review and comment of such counsel and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement (including a Shelf Registration Statement), Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto (including such document that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Offering to which the Trident Holders, their counsel, or the managing underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with applicable law.
(b) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement and supplements to such Registration Statement and the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be necessary to comply with the Securities Act or as necessary to keep such Registration Statement effective for the period of time required by this Agreement, and comply with provisions of the Securities Act with respect to the disposition of all Registrable Shares covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the Holders thereof set forth in such Registration Statement;
(c) furnish to each Holder of Registrable Shares covered by a Registration Statement and, in the event of a Public Offering, the underwriters of the securities being offered such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus), any documents incorporated by reference therein and such other documents as such Holder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such Holder or the sale of such securities by such underwriters (it being understood that, subject to Section 2.4 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Holder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the Registration Statement of which such Prospectus, amendment or supplement is a part); provided, however, that any such document available on the SEC’s XXXXX database shall satisfy any such obligation;
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(d) if applicable, register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as each Holder or, in the case of a Public Offering, the managing underwriter reasonably requests; use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement is required to be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder to consummate the disposition of the Registrable Shares owned by such Holder in such jurisdictions (provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it or its subsidiaries would not otherwise be required to qualify but for this subparagraph or (ii) consent to general service of process in any such jurisdiction);
(e) promptly notify each Holder of Registrable Shares covered by a Registration Statement and, in the case of a Public Offering, each underwriter (i) when a Prospectus or any prospectus supplement or amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, (iii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or related Prospectus or for additional information, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.6(o) below cease to be true and correct, and (v) of the happening of any event which makes any statement made in a Registration Statement or related Prospectus untrue or which requires the making of any changes in such Registration Statement, Prospectus or documents incorporated therein by reference so that they will not contain any 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, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment so that, as thereafter deliverable to the purchasers of such Registrable Shares, such Prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make generally available to the Company’s stockholders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(g) in the case of a Public Offering, if requested by the managing underwriter or any Holder participating in such Public Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any Holder reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such Holder, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
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(h) promptly make available for inspection by any Holder disposing of Registrable Shares pursuant to any Registration Statement, any underwriter participating in any disposition pursuant to any Registration Statement, and any attorney, accountant or other agent or representative retained by any such Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as shall be reasonably necessary to enable them to exercise their due diligence responsibility and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (h) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company is in the process of requesting or has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Inspectors requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided further, however, that each Inspector agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(i) in the case of a Public Offering, furnish to each Holder and underwriter participating in such Public Offering a signed counterpart of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants and the independent public accountants who have audited any other financial statements (including with respect acquired businesses) included or incorporated by reference into the Prospectus, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Holders or managing underwriter reasonably requests;
(j) cause the Registrable Shares included in any Registration Statement to be (i) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed prior to the effectiveness of such Registration Statement or (ii) authorized to be quoted and/or listed (to the extent applicable) on an automated quotation system if the Registrable Shares so qualify;
(k) provide a transfer agent and registrar for all Registrable Shares registered hereunder and provide a CUSIP number for the Registrable Shares included in any Registration Statement not later than the effective date of such Registration Statement;
(l) cause its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including participation in “road shows”) taking into account the Company’s business needs;
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(m) cooperate with counsel to the Holders and, in the case of a Public Offering, each underwriter participating in the disposition of such Registrable Shares in connection with any filings required to be made with FINRA;
(n) during the period when the Prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(o) in the case of a Public Offering, enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as are customary in connection with a Public Offering; and take all such other actions reasonably requested by the Holders of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, and in such connection whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested and (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 hereof with respect to all parties to be indemnified pursuant to said Section; and
(p) advise each Holder of Registrable Shares covered by a Registration Statement, promptly after it shall receive notice or obtain knowledge thereof of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
Section 2.7 Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Article II including, without limitation, all registration and filing fees, all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in Rule 5121 of FINRA regulations, and of its counsel), as may be required by the rules and regulations of FINRA, fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Registrable Shares), rating agency fees, printing expenses (including expenses of printing Prospectuses if the printing of Prospectuses is requested by a Holder), “road show” expenses, messenger and delivery expenses, the Company’s internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), the fees and expenses incurred in connection with any listing of the Registrable Shares, fees and expenses of counsel for the Company and its independent certified public accountants (including the expenses of any special audit or “comfort” letters required by or incident to such performance), fees and expenses of independent public accountants who have audited any other financial statements (including with respect acquired businesses) included or
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incorporated by reference into the Prospectus (including the expenses of any special audit or “comfort” letters required by or incident to such performance), securities acts liability insurance (if the Company elects to obtain such insurance), the fees and expenses of any special experts retained by the Company in connection with such registration, the fees and expenses of other Persons retained by the Company and the reasonable and documented fees and expenses of one counsel for the Trident Holders participating in any registration pursuant to this Agreement (the “Registration Expenses”) shall be borne by the Company whether or not any Registration Statement becomes effective or any sale is made in a Public Offering; provided, however, that in no event shall Registration Expenses include any underwriting discounts, commissions or fees attributable to the sale of the Registrable Shares or any accountants or other Persons (except as set forth above) retained or employed by any Holders, which expenses shall be borne by the relevant Holders who retained or employed such Persons. For the avoidance of doubt, the Company shall not be required to bear any fees or expenses of any counsel engaged by any Xxxx Family Member.
Section 2.8 Indemnification. In the event any Registrable Shares are included in a Registration Statement under this Agreement:
(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Holder, and each of its employees, advisors, agents, representatives, members, partners, stockholders, equityholders, officers and directors and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Holder, and each of such controlling Person’s employees, advisors, agents, representatives, members, partners, stockholders, equityholders, officers and directors (collectively, the “Holder Affiliates”) against any and all losses, claims, damages, liabilities, costs, judgments, fines, penalties, charges, amounts paid in settlement and expenses, joint or several (including, without limitation, attorneys’ fees and disbursements except as limited by Section 2.8(c)) based upon, arising out of, related to or resulting from any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus, Free Writing Prospectus (as defined under Rule 405 of the Securities Act) or preliminary Prospectus or any amendment thereof or supplement thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, any filing made in connection with the qualification of the offering under the securities or other “blue sky” law of any jurisdiction in which Registrable Shares are offered, or any other offering document (including any related notification, or the like) incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, or any violation by the Company of the Securities Act or of the Exchange Act, or any violation by the Company of this Agreement and will reimburse each such Holder and Holder Affiliate for any legal or other expenses reasonably incurred in connection with investigating, defending or settling any such loss, claim, damage, liability, costs, judgment, fine, penalty, charge or actions or proceedings; except insofar as any such statements or omissions are made in reliance upon and in strict conformity with information or affidavits furnished in writing to the Company by such Holder or any Holder Affiliate for use in such Registration Statement, Prospectus or preliminary Prospectus or amendment thereof or supplement thereto. The reimbursements
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required by this Section 2.8(a) will be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred.
(b) Each participating Holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement, Prospectus or preliminary Prospectus or amendment thereof or supplement thereto and, to the fullest extent permitted by law, each such Holder will indemnify the Company and its directors and officers and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) against any and all losses, claims, damages, liabilities, costs, judgments, fines, penalties, charges, amounts paid in settlement and expenses (including, without limitation, reasonable attorneys’ fees and disbursements except as limited by Section 2.8(c)) resulting from any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, Free Writing Prospectus (as defined under Rule 405 of the Securities Act) or any preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by such Holder or any of its Holder Affiliates specifically for inclusion in the Registration Statement, Prospectus or preliminary Prospectus or amendment thereof or supplement thereto; provided, however, that the obligation to indemnify will be several, not joint and several, among such Holders, and the liability of each such Holder will be in proportion thereto; and provided further, however, that such liability will be limited to the net proceeds received by such Holder from the sale of Registrable Shares (net of any underwriting discounts and commissions) pursuant to such Registration Statement and such Holder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement, Prospectus or preliminary Prospectus or Free Writing Prospectus (as defined under Rule 405 of the Securities Act) or amendment thereof or supplement thereto, such Holder has furnished in writing to the Company information expressly for use in such Registration Statement, Prospectus or preliminary Prospectus or amendment thereof or supplement thereto which corrected or made not misleading information previously furnished to the Company.
(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such Person except to the extent that the indemnifying party is materially prejudiced by such failure to give prompt notice) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (x) the indemnifying party has agreed to pay such fees or expenses or (y) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person. If such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any
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settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). If such defense is assumed by the indemnifying party pursuant to the provisions of this Agreement, such indemnifying party shall not settle or otherwise compromise the applicable claim unless (A) such settlement or compromise contains a full and unconditional release of the indemnified party or (B) the indemnified party otherwise consents in writing. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels. Notwithstanding the foregoing, an indemnified party shall have the right to employ separate counsel at the indemnifying party’s expense to participate in the defense of a claim if the named parties to any such claim (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by outside counsel that there is an actual conflict of interest between the indemnifying party and indemnified party that would make it inappropriate in the reasonable judgment of such outside counsel for the same counsel to represent both the indemnified party and indemnifying party.
(d) Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Section 2.8(a) or 2.8(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, costs, judgments, fines, penalties, charges, amounts paid in settlement or expenses (or actions in respect thereof) referred to therein, then each 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 losses, claims, damages, liabilities, costs, judgments, fines, penalties, charges, amounts paid in settlement or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in the losses, claims, damages, liabilities, costs, judgments, fines, penalties, charges, amounts paid in settlement or expenses as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.8(d) were determined by pro rata allocation (even if the Holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 2.8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, costs, judgment, fines, penalties, charges, amounts paid in settlement or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 2.8(c) defending any such action or claim. Notwithstanding the provisions of this Section 2.8(d), no Holder shall be required to contribute an amount greater than the proceeds (net of any underwriting discounts and
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commissions) received by such Holder with respect to the sale of any Registrable Shares. 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. The Holders’ obligations in this Section 2.8(d) to contribute shall be several and not joint in proportion to the amount of Registrable Shares registered by them.
(e) If indemnification is available under this Section 2.8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.8(a) and 2.8(b) of this Agreement without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in Section 2.8(d).
(f) The indemnification and contribution provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and will survive the transfer of securities.
(g) Any indemnified parties pursuant to this Agreement shall be third-party beneficiaries of this Section 2.8.
(h) The indemnity and contribution agreements contained in this Section 2.8 are in addition to any other liability that the indemnifying parties may otherwise have to the indemnified parties; provided that in no event shall any Holder of Registrable Shares be liable to any indemnified parties with respect to any untrue statement or alleged untrue statement or omission or alleged omission in any Registration Statement, Prospectus, Free Writing Prospectus or any preliminary Prospectus or any amendment thereof or supplement thereto for any amount in excess of the amount by which the net proceeds to the indemnifying party from the sale of the Registrable Shares sold in the transaction that resulted in any liability, exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission (including as a result of any indemnification or contribution obligation hereunder). Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provision in the underwriting agreement shall control.
Section 2.9 Transfer of Registration Rights.
(a) The rights of each Holder under this Agreement may be assigned to a transferee of Registrable Shares that constitute at least 1% of the Company’s or BNL OP’s outstanding Common Stock or OP Units, as the case may be; provided, however, (i) that any such transfer is permitted in accordance with the BNL OP Operating Agreement and any other applicable documents, (ii) that any such transfer is not made pursuant to Rule 144 under the Securities Act or a registration statement filed pursuant to this Agreement, and (iii) that the Company is given written notice by such Holder at or within a reasonable time after said transfer, stating the name and address of such transferee and identifying the Registrable Shares with respect to which such registration rights are being transferred. Notwithstanding the foregoing, any Holder may: (A) transfer rights to a transferee of Registrable Shares if such transferee is
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(x) an Affiliate or Affiliated Investor of any Holder or (y) any family member or trust for the benefit of any individual Holder; and (B) transfer rights in connection with effecting in-kind or similar distributions of all or part of its Registrable Shares to its direct or indirect equityholders, managers, employees, agents or representatives. Any such transferee permitted by this Section 2.9(a) (a “Permitted Transferee”) shall be required to execute the joinder agreement set forth in Exhibit A. Notwithstanding the foregoing, the right to issue a Demand Request under Section 2.2 of this Agreement is non-transferable and shall not be assigned to any transferee of Registrable Shares, including any Permitted Transferee, except in the case of a transfer by the Trident Holders to a Permitted Transferee of Registrable Shares representing not less than 50% of Registrable Shares held by the Trident Holders as of the date hereof.
(b) If the Company may at any time hereafter provide to any Person who is a holder of any securities of the Company or BNL OP rights with respect to the registration of such securities under the Securities Act, such rights shall not be in conflict with or adversely affect any of the rights provided to the Holders in, or conflict (in a manner that adversely affects the Holders) with any other provisions included in, this Agreement; provided, however, that any rights which are the same as or equal to the rights provided in this Agreement will not be considered in conflict with or to adversely affect the rights of the Holders provided in this Agreement. To the extent the Company provides any right to others that are more favorable than those provided for herein, this Agreement shall be deemed to be automatically modified to ensure that such Holders will have the benefit of terms that are at least as favorable as those provided to such other Persons. The Company shall provide prompt notice to the Holders of any such modifications.
(c) For the purposes of calculating any percentage of Common Stock or OP Units, as the case may be, as contemplated by this Section 2.9, the term “Holder” shall include all Affiliates thereof owning any Registrable Shares.
Section 2.10 Current Public Information.
(a) With a view to making available to the Holders the benefits of certain rules and regulations of the SEC that may at any time permit the sale of securities to the public without registration, the Company agrees to use commercially reasonable efforts to:
(i) make and keep public information available, as those terms are defined in Rule 144 under the Securities Act, at all times from and after 90 days following the Effective Date;
(ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act (at any time during which it is subject to such reporting requirements); and
(iii) furnish to any Holder, so long as such Holder owns any Registrable Shares, upon the reasonable request by such Holder, (A) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after 90 days after the Effective Date), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (B) a copy of the most recent annual
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or quarterly report of the Company and (C) such other reports and documents of the Company and other information in the possession of or reasonably obtainable by the Company as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder to sell any such securities without registration; provided, however, that any such document requested pursuant to clauses (B) or (C) above and available on the SEC’s XXXXX database shall satisfy any such obligation under clause (B) or (C) above.
(b) Notwithstanding anything in this Section 2.10, the Company may deregister under Section 12 of the Exchange Act if it is then permitted to do so pursuant to the Exchange Act and the rules and regulations thereunder.
Section 2.11 General Rules Applicable to Registration Statements. No Holder may participate in any Demand Offering or Company Public Offering unless such Holder (a) agrees to sell such Holder’s Registrable Shares on the basis provided in any underwriting arrangements described above and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
Section 2.12 In-Kind Distributions. If any Holder seeks to effectuate an in-kind distribution of all or part of its Registrable Shares to its direct or indirect equityholders pursuant to Section 2.9(a), the Company will, subject to any applicable lock-up agreement, work with such Holder and the Company’s transfer agent to facilitate such in-kind distribution in the manner reasonably requested by such Holder.
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. All notices, elections, demands or other communications required or permitted to be made or given pursuant to this Agreement shall be in writing and shall be considered as properly given or made on the date of actual delivery if given by (a) personal delivery, (b) expedited overnight delivery service with proof of delivery, (c) via facsimile with confirmation of delivery or (d) electronic mail, addressed to the respective addressee(s). All notices hereunder to the Company or BNL OP shall be mailed to it at the respective address of its principal place of business and all notices to the Holders shall be mailed to them at their last known addresses as shown on the books and records of the Company. Any Holder may change its address by giving notice in writing to the Company of its new address.
Section 3.2 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement.
Section 3.3 Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and, subject to Section 2.9 their respective transferees (provided that any such transferee is a Permitted Transferee), successors and assigns.
Section 3.4 Termination. This Agreement shall terminate when no Registrable Shares remain outstanding; provided, however, that Section 2.8 and Article III shall survive any termination hereof.
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Section 3.5 Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for reference only and shall not limit or otherwise affect the meaning hereof. References herein to Sections are references to Sections of this Agreement, except as otherwise indicated.
Section 3.6 Specific Performance. The parties hereto recognize and agree that money damages may be insufficient to compensate the Holders for breaches by the Company of the terms hereof and, consequently, that the equitable remedy of specific performance of the terms hereof will be available in the event of any such breach, without posting a bond or other undertaking, and this being in addition to any other remedy to which such party is entitled at law or in equity.
Section 3.7 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO RULES OR PRINCIPLES OF CONFLICTS OF LAW REQUIRING THE APPLICATION OF THE LAW OF ANOTHER STATE.
Section 3.8 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible within a reasonable period of time.
Section 3.9 Waiver of Jury Trial; Consent to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Commercial Division of the New York Supreme Court located in the Borough of Manhattan in the City of New York and the United States District Court for the Southern District of New York for the purpose of adjudicating any dispute arising hereunder. Each party hereto hereby irrevocably and unconditionally waives and agrees not to plead or claim in any such court any objection to such jurisdiction, whether on the grounds of hardship, inconvenient forum or otherwise. Each party hereto further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s address as provided pursuant to Section 3.1 shall be effective service of process for any action, suit or proceeding with respect to any matters to which it has submitted to jurisdiction in this Section 3.9.
Section 3.10 Amendments; Entire Agreement. Any amendment or waiver of, or any consent given under, any provision of this Agreement shall be in writing by the Company and
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each of the Trident Holders and Xxxx Family Members (or Permitted Transferees thereof, as applicable) holding Registrable Shares; provided, however, that no amendment to this Agreement shall be effected if such amendment materially adversely affects a Holder or group of Holders in a manner that is disproportionate relative to the effect on any other Holder, unless such Holder or Holders holding a majority of the Registrable Shares of such group of Holders at the relevant time of determination consents thereto. Any waiver of any provision of this Agreement shall be subject to the same approval requirements as an amendment in the event that such amendment would have the same effect as such waiver. This Agreement supersedes all prior discussions, memoranda of understanding, agreements and arrangements (whether written or oral, including all correspondence), if any, between the parties hereto with respect to the subject matter hereof, and this Agreement contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.
Section 3.11 Merger or Consolidation. In the event the Company engages in a merger or consolidation in which the Registrable Shares are converted into securities of another company, appropriate arrangements will be made so that the registration rights provided under this Agreement continue to be provided to the Holders by the issuer of such securities. To the extent such new issuer, or any other company acquired by the Company in a merger or consolidation, was bound by registration rights obligations that would conflict with the provisions of this Agreement, the Company will, unless the Holders then holding at least a majority of the Registrable Shares otherwise agree, use its reasonable best efforts to modify any such “inherited” registration rights obligations so as not to interfere in any material respects with the rights provided under this Agreement. To the extent any such modification of “inherited” registration rights disproportionately and adversely impacts any Holder hereunder, such modification shall not be effective as to such Holder without the consent of such Holder.
Section 3.12 No Recourse. This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto, and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, equityholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date first written above.
| BROADSTONE NET LEASE, INC. | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| BROADSTONE NET LEASE, LLC | ||||
| By: | Broadstone Net Lease, Inc., | |||
| its managing member | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
[Signature Page to Registration Rights Agreement]
| Stockholders | ||||
| BROADSTONE VENTURES, LLC | ||||
| By: | /s/ Xxx X. Xxxx | |||
| Name: Xxx X. Xxxx | ||||
| Title: Chief Executive Officer | ||||
| XXX X. XXXX | ||||
| /s/ Xxx X. Xxxx | ||||
| XXXXXX X. XXXX AS GENERAL TRUSTEE OF THE IRREVOCABLE TRUST FBO XXXXXXXX X. XXXX DATED DECEMBER 18, 2017 | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: Xxxxxx X. Xxxx | ||||
| Title: General Trustee | ||||
| XXXXXX X. XXXX AS GENERAL TRUSTEE OF THE IRREVOCABLE TRUST FBO XXXX X. XXXX DATED DECEMBER 18, 2017 | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: Xxxxxx X. Xxxx | ||||
| Title: General Trustee | ||||
[Signature Page to Registration Rights Agreement]
| TRIDENT BRE HOLDINGS I LTD | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | President | |||
| TRIDENT BRE HOLDINGS II LTD | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | President | |||
| TRIDENT BRE, LLC | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | President | |||
[Signature Page to Registration Rights Agreement]
EXHIBIT A
FORM OF JOINDER
THIS JOINDER (this “Joinder”) is made and entered into as of [●] by the undersigned (the “New Holder”) in accordance with the terms and conditions set forth in that certain Registration Rights Agreement, by and among Broadstone Net Lease, Inc., a Maryland corporation (the “Company”), Broadstone Net Lease, LLC, a New York limited liability company (“BNL OP”) and the Holders party thereto, dated as of February 7, 2020, as the same may be amended, restated or otherwise modified from time to time (the “Registration Rights Agreement”), for the benefit of, and for reliance upon by, the Company, BNL OP and the Holders.
WHEREAS, New Holder has acquired certain Registrable Shares from [●].
WHEREAS, the New Holder desires to exercise certain rights granted to it under the Registration Rights Agreement; and
WHEREAS, the execution and delivery to the Company of this Joinder by the New Holder is a condition precedent to the New Holder’s exercise of any of its rights under the Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties to this Joinder hereby agree as follows:
(a) Agreement to be Bound. The New Holder hereby agrees that upon execution of this Joinder, it 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 as though an original party thereto and shall be deemed a Holder for all purposes thereof.
(b) Successors and Assigns. Except as otherwise provided herein, this Joinder shall bind and inure to the benefit of and be enforceable by the Company and its successors, heirs and assigns.
(c) Notices. For purposes of notices pursuant to the Registration Rights Agreement, all notices, requests and demands to the New Holder shall be directed to:
[Name]
[Address]
(d) Further Assurances. The New Holder agrees to perform any further acts and execute and deliver any additional documents and instruments that may be necessary or reasonably requested by the Company to carry out the provisions of this Joinder or the Registration Rights Agreement.
(e) Descriptive Headings. The descriptive headings of this Joinder are inserted for convenience only and do not constitute a part of this Joinder.
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IN WITNESS WHEREOF, the parties hereto have executed this Joinder to the Registration Rights Agreement as of the date first written above.
| BROADSTONE NET LEASE, INC. | ||||
| By |
| |||
| Name: | ||||
| Title: | ||||
| BROADSTONE NET LEASE, LLC | ||||
| By: | Broadstone Net Lease, Inc. | |||
| Its Managing Member | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| [NEW HOLDER] | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
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