Registration Rights Agreement Dated as of August 30, 2007 between Cross Shore Acquisition Corporation and Daniel M. Perlman and Daniel Raynor as the RPS Securityholders Committee
Exhibit 4.1
Dated as of August 30, 2007
between
Cross Shore Acquisition Corporation
and
Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx as the RPS Securityholders Committee
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
August 30, 2007 by and between Cross Shore Acquisition Corporation (the “Company”), and
Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx as the RPS Securityholders Committee (the “Committee”).
WHEREAS, the Company and ReSearch Pharmaceutical Services, Inc. (“RPS”) are parties to
a Merger Agreement dated as of April 26, 2007 (the “Merger Agreement”) pursuant to which
the Company shall issue Shares and Warrants to RPS Securityholders; and
WHEREAS, the execution and delivery of this Agreement is a condition precedent to the
consummation of the transactions contemplated by the Merger Agreement.
The Company agrees with the Committee for the benefit of the beneficial owners from time to
time of the Registrable Securities as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Agreement: As defined in the Preamble hereof.
Commission: The U.S. Securities and Exchange Commission.
Committee: As defined in the Preamble hereof.
Company: As defined in the Preamble hereof.
Effective Date: The date on which the Registration Statement is declared effective by
the Commission.
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended.
Exchange Act Registration Statement: As defined in the Investor Rights Agreement.
Existing Agreements: The Investor Rights Agreement and the Founders Registration
Rights Agreement.
Founders Registration Rights Agreement: The Registration Rights Agreement dated as of
April 24, 2006 by and among the Company and the parties signatory thereto.
Holders: The holders of Registrable Securities.
Investor Rights Agreement: The Investor Rights Agreement dated as of April 24, 2006
by and among the Company, Sunrise Securities Corp. and Xxxxxxx Xxxxxxx Limited.
Lock-up Period: As defined in Section 2(e) hereof.
NASD: National Association of Securities Dealers, Inc.
Merger Agreement: As defined in the Recitals hereof.
Person: An individual, partnership, corporation, limited liability company,
unincorporated organization, association, joint-stock company, trust, joint venture, government or
any agency or political subdivision thereof or any other entity.
Piggy Back Registration: As defined in Section 2(a) hereof.
register, registered or 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 effectiveness of such registration statement.
Registrable Securities: Shares issued to Holders pursuant to the Merger Agreement or
acquired upon exercise of the Warrants issued to Holders pursuant to the Merger Agreement.
Registrable Securities shall include any warrants, shares of capital stock or other securities of
the Company issued as a dividend or other distribution with respect to, in exchange for, or in
replacement of, such Shares. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (a) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and such securities shall have
been sold, transferred, disposed of or exchanged in accordance with such Registration Statement;
(b) such securities shall have been otherwise transferred and (1) new certificates for them not
bearing a legend restricting their transfer under the U.S. securities laws shall have been
delivered or caused to be delivered by the Company or (2) new securities in dematerialized or
book-entry form not subject to transfer restrictions shall have been delivered or caused to be
delivered by the Company; (c) such securities shall have ceased to be outstanding; or (d) with
respect to Registrable Securities held by Persons who are not affiliates of the Company, such
securities may be sold or transferred pursuant to Rule 144 under the Securities Act (or any other
similar provision then in force) without any volume or manner of sale restrictions thereunder.
Registration Default: An Exchange Act Registration Default, a Demand Registration
Default or a Shelf Registration Default.
Registration Statement: Any registration statement of the Company on an applicable
form, including the prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
RPS: As defined in the Recitals hereof.
RPS Securityholders: As defined in the Merger Agreement.
Securities Act: The U.S. Securities Act of 1933, as amended.
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Securities Act Registration Statement: As defined in the Investors Rights Agreement.
Shares: The Company’s common stock, par value $0.0001 per share.
Shelf Registration Statement: A shelf registration statement of the Company filed
pursuant to the provisions of Section 3 of this Agreement, which covers the resale by the Holders
of all of the Registrable Securities on an appropriate form (including Form S-3 or a similar short
form registration statement) under Rule 415 under the Securities Act, or any similar rule that may
be adopted by the Commission, including all amendments and supplements thereto and all exhibits and
material incorporated by reference therein.
Warrants: Warrants to purchase Shares in the form attached to the Merger Agreement as
Exhibit H.
SECTION 2. PIGGY BACK REGISTRATION
(a) Requests for Piggy Back Registration. If, at any time other than as provided in
Section 2(c) below, the Company proposes to register any Shares under the Securities Act in
connection with the public offering of such Shares, either for its own account or for the accounts
of shareholders other than the Holders, including, without limitation, pursuant to the Existing
Agreements (other than registrations on Form S-4 or Form S-8 or in connection with an exchange
offer or an offering of securities solely to the Company’s existing shareholders), the Company
shall give written notice to each Holder of Registrable Securities at least thirty (30) days prior
to the initial filing of such Registration Statement and of such Holder’s rights pursuant to this
Section 2. Upon the request of any Holder of Registrable Securities made within twenty (20) days
after any such notice is given (which request shall specify the number of Registrable Securities
intended to be disposed of by such Holder), the Company will use its commercially reasonable
efforts to effect the registration (the “Piggy Back Registration”) under the Securities Act
of all Registrable Securities which the Company has been so requested to register by the Holders
thereof, provided, however, that if, at any time after giving written notice of its intention to
register any Shares and prior to the Effective Date of the Registration Statement filed in
connection with such Piggy Back Registration, the Company shall determine for any reason not to
register or to delay the registration of such Shares, the Company may, at its election, give
written notice of such determination to each Holder of Registrable Securities and, thereupon (i) in
the case of a determination not to register, the Company shall be relieved of its obligation to
register any Registrable Securities under this Section 2(a) in connection with such registration
(but not from its obligation to pay the expenses incurred in connection therewith) and (ii) in the
case of a determination to delay registration, the Company shall be permitted to delay registering
any Registrable Securities under this Section 2(a) during the period that the registration of such
other Shares is delayed.
(b) Priority on Piggy Back Registration. If the managing underwriters of a
registration advise the Company in writing that in their opinion the amount of Registrable
Securities and other Shares requested to be included exceeds the amount of Registrable Securities
and other Shares which can be sold in such offering without adversely affecting the distribution of
the securities being offered, the price that will be paid in such offering or the
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marketability thereof (the “Maximum Number of Shares”), then the Company shall include
in such registration:
(i) If the registration is a demand registration undertaken pursuant to the Existing
Agreements: (A) first, the number of Shares for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent the
Maximum Number of Shares has not been reached under the foregoing clause (A), such number of
Registrable Securities for which registration has been requested pursuant to this Section 2
and Shares of other holders having the right to inclusion of their securities in such
Registration Statement by reason of written contractual piggy back registration rights that
may be sold without exceeding the Maximum Number of Shares, allocated pro rata in proportion
to the number of Registrable Securities or other Shares sought to be included by each holder
of Registrable Securities or other Shares, and (C) to the extent the Maximum Number of
Shares has not been reached under the foregoing clauses (A) and (B), such number of Shares
that the Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; and
(ii) With respect to any other registration, whether on account of the Company or for
the accounts of shareholders other than the Holders, a number of Registrable Securities and
other Shares of the Company proposed to be included equal to the Maximum Number of Shares,
allocated ratably among the Holders of Registrable Securities, the Company and the other
holders of such other Shares based on the respective amounts of Registrable Securities or
other Shares, as the case may be, requested or proposed to be registered by each such holder
or the Company.
(c) Limitation on Piggy Back Registrations. If the Company shall have filed a Shelf
Registration Statement pursuant to Section 3 hereof, the Company shall not be obligated to permit
Piggy Back Registrations pursuant to this Section 2 with respect to such Holder’s Registrable
Securities during the period when such Shelf Registration Statement is effective and available for
resales by such Holder who would otherwise be entitled to the benefit of such Piggy Back
Registration.
(d) Certain Communications; Waivers. The parties acknowledge that the notices and
other communications the Company is required to provide to Holders under this Section 2 hereof may
contain or constitute price sensitive information and/or material non-public information under
applicable law, and the receipt of such notices and other communications may make it unlawful for
Holders to trade their Shares for a period of time after receipt. Each Holder is deemed to agree
to keep confidential the fact that it may have received a notice or communication from the Company
and the contents of any such notice or communication. Any Holder that wishes to waive its rights
under Section 2 hereof may do so at any time by written notice to the Company. Any such waiver
shall be revocable by subsequent written notice to the Company.
(e) Holdback Agreement. Each Holder whose Registrable Securities are included in a
Registration Statement as part of a Piggy Back Registration pursuant to this Section 2, if
requested by the Company and the managing underwriters of an offering by the Company of
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the Shares pursuant to such Registration Statement, shall agree not to effect any public sale
or private offer or distribution of any Registrable Securities or other securities of the Company
held by such Holder for a specified period of time (the “Lock-up Period”) following the
Effective Date of such Registration Statement; provided that such Lock-up Period shall not exceed
(i) one hundred eighty (180) days, with respect to the first Registration Statement covering
Registrable Securities to be sold to the public in an underwritten offering and (ii) ninety (90)
days, with respect to all subsequent underwritten offerings covering Registrable Securities.
SECTION 3. SHELF REGISTRATION
(a) The Company may, at any time, cause a Shelf Registration Statement to be filed and
declared effective by the Commission, which Shelf Registration Statement shall provide for the
resales of all Registrable Securities held by the Holders who shall have provided the information
required pursuant to Section 3(c). Notwithstanding the foregoing, as soon as reasonably
practicable after the Company has become a registrant entitled to use Form S-3 (or any successor
form to Form S-3) or any similar short form Registration Statement, the Company shall file a Shelf
Registration Statement on Form S-3 for the registration of the Registrable Securities and use its
commercially reasonable efforts to cause such Form S-3 Registration Statement to be declared
effective.
(b) Notwithstanding any other provision in this Agreement, the Company may delay the initial
filing of the Shelf Registration Statement and may from time to time suspend the use of any
prospectus forming a part of the Shelf Registration Statement for a period of up to ninety (90)
days during any six-month period (such period during which the use of a prospectus is suspended, a
“Suspension Period”) if the Board of Directors of the Company shall have determined in good
faith that because of valid business reasons (not including avoidance of the Company’s obligations
hereunder), including, without limitation, proposed or pending corporate developments or similar
events or because of filings with the Commission, it is in the best interest of the Company to
suspend such use, and prior to suspending such use the Company provides the Holders of Registrable
Securities with written notice of such suspension which notice need not specify the nature of the
event giving rise to such suspension.
(c) No Holder of Registrable Securities may include any of its Registrable Securities in any
registration pursuant to this Section 3 unless and until such Holder furnishes to the Company in
writing, within ten (10) days after receipt of a request therefore, such information as the Company
may reasonably request for use in connection with any Shelf Registration Statement and agrees to
comply with Regulation M under the Exchange Act. Each Holder as to whose Registrable Securities
any Shelf Registration Statement is being filed or maintained effective agrees to furnish promptly
to the Company all information required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
SECTION 4. LIQUIDATED DAMAGES
(a) If the Exchange Act Registration Statement or the Securities Act Registration Statement,
as applicable, shall not have been declared effective within ninety (90) days of the Registration
Date as required by Section 2(a) of the Investors Rights Agreement (an
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“Exchange Act Registration Default”), or if the Company does not effect a Demand
Registration within the time periods specified in Section 3(b) of the Investors Rights Agreement
(a “Demand Registration Default”), or if the Company does not cause to be declared
effective a Shelf Registration Statement on Form S-3 within ninety (90) days after it becomes a
registrant entitled to use Form S-3 (or, in the case where a Shelf Registration Statement is
available for resales of the Registrable Securities, does not file any required amendment or
supplement to the prospectus contained in the Shelf Registration Statement or any such amendment
shall not be effective) (a “Shelf Registration Default”), then, in each case, the Company
shall, as promptly as practicable and in no event later than two (2) days following the end of the
month in which such Registration Default initially occurred, pay liquidated damages
(“Liquidated Damages”) in the form of Shares as follows:
(i) With respect to an Exchange Act Registration Default or a Shelf Registration
Default, to each Holder of Shares in an amount equal to 1.0% of the number of such Holder’s
Registrable Securities held on the date of such Registration Default upon payment by such
Holder of Registrable Securities to the Company of the par value of such Shares, subject to
compliance with applicable securities laws;
(ii) With respect to a Demand Registration Default, to each Holder of Registrable
Securities which had requested its Registrable Securities to be included in such Demand
Registration pursuant to the exercise of its Piggyback Rights set forth in Section 2 hereof,
and subject to the terms and conditions as set forth therein (or underwritten offering in
the case of a Shelf Registration Statement being used in lieu of a Demand Registration), in
an amount equal to 1.0% of the number of such Holder’s Registrable Securities requested to
be included therein upon payment by such Holder of Registrable Securities to the Company of
the par value of such Shares, subject to compliance with applicable securities laws.
(b) The Company shall pay additional Liquidated Damages within two days of the end of each
month until the Registration Default shall have been cured; provided that a pro rata portion of the
Liquidated Damages shall be paid with respect to any month in which the Company shall have been in
Registration Default for a portion of such month; and provided, further, that Liquidated Damages
shall be payable for a maximum period of two (2) months following the occurrence of a Registration
Default.
(c) Notwithstanding any other provision of this Agreement, the Liquidated Damages contemplated
in this Section 4 shall be the sole and exclusive remedy available to the Holders in the event of a
Registration Default by the Company.
SECTION 5. REGISTRATION PROCEDURES
Whenever required under this Agreement to use its commercially reasonable efforts to effect
the registration of any Registrable Securities (including, without limitation, in connection with
any Piggy Back Registration), the Company will use its commercially reasonable efforts to effect
the registration and the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company shall, as expeditiously as reasonably
possible:
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(a) Prepare and file with the Commission a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause such Registration Statement to become and
remain effective until the distribution thereof has been completed.
(b) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of such Registrable Securities owned by them;
(c) Notify the selling Holders of Registrable Securities promptly (but in any event within two
(2) business days), and confirm such notice in writing (i) when a prospectus or any prospectus
supplement or post-effective 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 the Commission of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, (iii) if at any time when
a prospectus is required by the Securities Act to be delivered in connection with the sales of
Registrable Securities, the Company becomes aware that the representations and warranties of the
Company contained in any underwriting agreement cease to be true and correct in any material
respect, (iv) of the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale in any jurisdiction, or (v) if the Company becomes aware
of the happening of any event that makes any statement made in such Registration Statement or
related prospectus or document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in such Registration
Statement, prospectus or documents so that, in the case of such Registration Statement, it 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 that in the case of
the prospectus, it 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, in light
of the circumstances under which they were made, not misleading;
(d) As promptly as practicable after the Registration Statement shall have been declared
effective under the Securities Act, use its commercially reasonable efforts to cause the Shares to
be authorized to be quoted and/or listed (to the extent applicable) on the American Stock Exchange,
the New York Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market (or, in each
case, a successor thereto) or a similarly recognized trading platform, if the Shares so qualify;
(e) Use its commercially reasonable efforts to register and qualify the Registrable Securities
covered by the Registration Statement under such other securities or “Blue Sky” laws of such
jurisdictions as shall be reasonably appropriate for the distribution of the Registrable Securities
covered by the Registration Statement; provided that the Company shall not be required in
connection therewith or as a condition thereto, to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions; and provided, further that
(anything in this Agreement to the contrary notwithstanding with respect to the bearing of
expenses) if any jurisdiction in which the Registrable Securities shall be qualified
7
requires that expenses incurred in connection with the qualification of the securities in that
jurisdiction be borne by selling shareholders, then such expenses shall be payable by the Holders
of such Registrable Securities pro rata to the extent required by any jurisdiction;
(f) in connection with an underwritten offering, enter into an underwriting agreement in form,
scope and substance as is customary in underwritten offerings and take all other actions as are
reasonably requested by the managing underwriters in order expedite or facilitate the registration
or disposition of the Registrable Securities, and in such connection (i) make such representations
and warranties to the underwriters, 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 confirm the same if and
when requested, (ii) obtain opinions of counsel to the Company and updates thereof (which opinions
(in form, scope and substance) shall be reasonably satisfactory to the managing underwriters),
addressed to the underwriters covering the matters customarily covered in opinions requested in
underwritten offerings, (iii) obtain “cold comfort” letters and updates thereof from the
independent public certified accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of an business acquired by the
Company for which financial statements and financial data are, or are required to be, included in
the Registration statement), addressed to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in “cold comfort” letters in connection
with the underwritten offerings and (iv) if any underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable to the Holders of
Registrable Securities than those set forth in Section 8 hereof (or such other provisions and
procedures acceptable to holders of a majority of the Registrable Securities covered by such
Registration Statement and the managing underwriters or agents). The above actions shall be taken
at each closing under such underwriting agreement, or as and to the extent required thereunder;
(g) Make available for inspection by any selling Holder of Registrable Securities, by any
underwriter participating in any disposition to be effected pursuant to such Registration Statement
and by any attorney, accountant or other agent retained by any such selling Holder or any such
underwriter, all pertinent financial and other records and pertinent corporate documents and
properties of the Company, and cause all of the Company’s officers, directors and employees to
supply all information reasonably requested by any such selling Holder, underwriter, attorney,
accountant or agent in connection with such Registration Statement; and
(h) Use every reasonable effort to prevent the issuance of any stop order suspending the
effectiveness of such Shelf Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus and, if any such order is issued, to obtain the lifting thereof at
the earliest reasonable time.
SECTION 6. INFORMATION FURNISHED BY HOLDERS
It shall be a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to the registration of any Holder’s Registrable
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Securities that such Holder furnish to the Company such information regarding itself, the
Registrable Securities held by such Holder, and the intended method of disposition of such
Registrable Securities as the Company shall reasonably request and as shall be required in
connection with the action to be taken by the Company.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company’s performance of or compliance with this Agreement
will be borne by the Company regardless of whether any Registration Statement hereunder is filed or
becomes effective, including without limitation and as applicable: (i) all Commission, securities
exchange or NASD registration and filing fees and expenses; (ii) all fees and expenses of
compliance with U.S. federal securities and state blue sky laws and compliance with the rules of a
securities exchange or NASD, as applicable; (iii) all expenses of printing, messenger and delivery
services; (iv) all fees and disbursements of counsel for the Company; (v) all fees and
disbursements of independent certified public accountants of the Company (including the expenses of
any special audit and comfort letters required by or incident to such performance); and (vi)
underwriters’ fees and expenses (but excluding discounts, commissions, or fees of underwriters,
selling brokers, dealer directors or similar security industry professionals relating to the
distribution of the Registrable Securities and the fees for counsel of the selling Holders).
(b) The Company will, in any event, bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person, including special experts,
retained by the Company.
SECTION 8. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless each Holder, its officers and employees and
each Person, if any, who controls any such Holders, within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which that Holder, officer, employee or controlling Person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement filed pursuant hereto or in any amendment or supplement
thereto; and (ii) the omission or alleged omission to state in any Registration Statement filed
pursuant hereto or in any amendment or supplement thereto any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, and shall reimburse each Holder and each such officer, employee or
controlling Person promptly upon demand for any legal or other expenses reasonably incurred by that
Holder, officer, employee or controlling Person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such expenses are
incurred; provided that no Holder shall be indemnified for untrue statements or alleged untrue
statements or omissions or alleged omissions arising from information provided by the Holder in
writing for inclusion in any Registration Statement filed pursuant hereto. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have to any Holder or to
any officer, employee or
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controlling Person of that Holder.
(b) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the Company under this Section 8, notify the Company in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the Company shall not
relieve it from any liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the failure to notify the
Company shall not relieve it from any liability which it may have to an indemnified party otherwise
than under this Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the Company thereof, the Company shall be entitled to participate
therein and, to the extent that it wishes to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the Company to the indemnified party of
its election to assume the defense of such claim or action, the Company shall not be liable to the
indemnified party under this Section 8 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, any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the employment of such
counsel has been specifically authorized by the Company in writing, or (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to the Company and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the Company has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified party notifies the
Company in writing that it elects to employ separate counsel at the expense of the Company, the
Company shall not, in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to one local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Holders of a majority of the Registrable Securities.
The Company shall not (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the Company or if there be a final judgment of the plaintiff in any
such action, the Company agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(c) If the indemnification provided for in this Section 8 shall for any reason be unavailable
to or insufficient to hold harmless an indemnified party under Section 8(a) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to therein, then
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the Company shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Holders on the other, from the sale of
the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but any other relevant equitable considerations. The Company and the Holders
agree that it would not be just and equitable if contributions pursuant to this Section 8(c) were
to be determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss claim, damage or liability, or action in respect thereof, referred to above in this
Section 8 shall be deemed to include, for purposes of this Section 8(c), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8(c), no Holder
shall be required to contribute any amount in excess of the amount by which the net proceeds
received by it in connection with its sale of Shares exceeds the amount of any damages which such
Holder has otherwise paid or become liable to pay by reason of the untrue or alleged untrue
statement or omission or alleged omission. 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 to
contribute as provided in this Section 8(c) are several and not joint.
SECTION 9. MISCELLANEOUS
(a) No Inconsistent Agreements. The Company shall not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement granting any registration rights with
respect to its Shares to any Person except for the registration rights granted pursuant to the
Existing Agreements. The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the Company’s Shares under any
agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions hereof may
not be given without the written consent of the Company and the Committee (it being understood, for
the avoidance of doubt, that any Holder may waive any provision of this Agreement as to itself and
its Shares).
(c) Third Party Beneficiaries. The Holders shall be third party beneficiaries under
this Agreement, entitled to enforce all of their rights hereunder. Other than as provided in the
preceding sentence, nothing in this Agreement shall create or be deemed to create any third party
beneficiary rights in any Person not a party to this Agreement.
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(d) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, facsimile or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth in the record books of the Company; and
(ii) if to the Company to:
| Cross Shore Acquisition Corporation | ||
| c/o Glencoe Capital | ||
| 000 Xxxx Xxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Attn: Chairman | ||
| with a copy to: | ||
| XxXxxxxxx Will & Xxxxx LLP | ||
| 000 Xxxx Xxxxxx Xxxxxx | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Attn: Xxxxxx X. Xxxxxxxx |
Any such notices and communications shall take effect at the time of receipt thereof.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(i) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
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agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by the Company herein.
This Agreement supersedes all prior agreements and understandings between the parties with respect
to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| Very truly yours, | ||||
| THE COMPANY: | ||||
| CROSS SHORE ACQUISITION CORPORATION | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | CEO | |||
| THE COMMITTEE: | ||||
| /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx | ||||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
