REGISTRATION RIGHTS AGREEMENT
Exhibit 4.3
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of 24 April, 2006, by
and among Cross Shore Acquisition Corporation, a corporation organized under the laws of the State
of Delaware (the “Company”) and the undersigned parties listed on the signature page hereto (each,
an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company;
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of the Common Shares held by them;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows;
1. DEFINITIONS. The following capitalized terms used herein have the following
meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or
otherwise modified from time to time.
“Commission” means the Securities and Exchange Commission, or any other federal agency
then administering the Securities Act or the Exchange Act.
“Common Shares” means the common shares, par value $0.0001 per share, of the Company.
“Company” is defined in the preamble to this
Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Form S-3” is defined in Section 2.3.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
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“Investor” is defined in the preamble to this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Register,”
“registered” and “registration” mean a registration effected by
preparing and filing a registration statement or similar document in compliance with the
requirements of the Securities Act, and the applicable rules and regulations promulgated
thereunder, and such registration statement becoming effective.
“Registrable Securities” mean all of the Common Shares owned or held by Investors.
Registrable Securities include any warrants, shares in the share capital or other securities of the
Company issued as a dividend or other distribution with respect to or in exchange for or in
replacement of such Common 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 new certificates for them
not bearing a legend restricting further transfer shall have been delivered by the Company; (c)
such securities shall have ceased to be issued and outstanding, or (d) the Securities and Exchange
Commission makes a definitive determination or US securities counsel to the Company delivers an
opinion to the Company that the Registrable Securities are salable under Rule 144(k).
“Registration Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of the Common Shares (other than a registration statement
on Form S-4 or Form S-8, or their successors, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of another entity).
“Release
Date” means the date on which Common Shares are disbursed from escrow pursuant
to Section 3 of that certain Share Escrow Agreement dated as
of , 2006 by and among the parties
hereto and Xxxxxxx Xxxxxxx Limited, as escrow agent.
“Reporting Date” means the date on which the Company has become obligated to file
reports under the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
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time.
“Underwriter” means a securities dealer who purchases any Registrable Securities as
principal in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1.
Request for Registration. At any time and from time to time on or after the
later of the Release Date and the Reporting Date, the holders of a majority-in-interest of the
Registrable Securities held by the Investors or the transferees of
the Investors may make a written
demand for registration under the Securities Act of all or part of
their Registrable Securities (a
“Demand Registration”). Any demand for a Demand Registration shall specify the number of shares of
Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The
Company will notify all holders of Registrable Securities of the demand, and each holder of
Registrable Securities who wishes to include all or a portion of such holder’s Registrable
Securities in the Demand Registration (each such holder including shares of Registrable Securities
in such registration, a “Demanding Holder”) shall so notify the Company within fifteen (15) days
after the receipt by the holder of the notice from the Company. Upon any such request, the
Demanding Holders shall be entitled to have their Registrable Securities included in the Demand
Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company
shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this
Section 2.1.1 in respect of Registrable Securities.
2.1.2. Effective Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such Demand Registration
has been declared effective and the Company has complied with all of its obligations under this
Agreement with respect thereto; provided, however, that if, after such Registration Statement has
been declared effective, the offering of Registrable Securities pursuant to a Demand Registration
is interfered with by any stop order or injunction of the Commission or any other governmental
agency or court, the Registration Statement with respect to such Demand Registration will be deemed
not to have been declared effective, unless and until, (i) such stop order or injunction is
removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding
Holders thereafter elect to continue the offering: provided, further, that the Company
shall not be obligated to file a second Registration Statement until a Registration Statement that
has been filed is counted as a Demand Registration or is terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of the Demanding Holders so
elect and such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. In such event, the right of any holder to include
its Registrable Securities in such registration shall be conditioned upon such holder’s
participation in such underwriting and the inclusion of such holder’s Registrable
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Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to
distribute their securities through such underwriting shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand Registration.
2.1.4. Reduction of Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the Demanding Holders
in writing that the dollar amount or number of shares of Registrable Securities which the Demanding
Holders desire to sell, taken together with all other Common Shares or other securities which the
Company desires to sell and the Common Shares, if any, as to which registration has been requested
pursuant to written contractual piggy-back registration rights held by other shareholders of the
Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can
be sold in such offering without adversely affecting the proposed offering price, the timing, the
distribution method, or the probability of success of such offering (such maximum dollar amount or
maximum number of shares, as applicable, the “Maximum Number
of Shares”), then the Company
shall include in such registration: (i) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance with the
number of shares of Registrable Securities which such Demanding Holder has requested be included in
such registration, regardless of the number of shares of Registrable Securities held by each
Demanding Holder) that can be sold without exceeding the Maximum
Number of Shares; (ii) second, to
the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i),
the Common Shares or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (i) and (ii), the Common Shares for the
account of other persons that the Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the Maximum Number of Shares;
and (v) fourth, to the extent that the Maximum Number of Shares have not been reached under the
foregoing clauses (i), (ii), and (iii), the Common Shares that other shareholders desire to sell
that can be sold without exceeding the Maximum Number of Shares.
2.1.5. Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of
the terms of any underwriting or are not entitled to include all of
their Registrable Securities in
any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or Underwriters of their
request to withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding
Holders withdraws from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in Section 2.1.1.
2.2 Piggy-Back Registration.
2.2.1. Piggy-Back Rights. If at any time on or after the later of the
Release Date
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and the Reporting Date the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own
account or for shareholders of the Company for their account (or by the Company and by shareholders
of the Company including, without limitation, pursuant to Section 2.1), other than a Registration
Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an
exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for
an offering of debt that is convertible into equity securities of the Company or (iv) for a
dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing
to the holders of Registrable Securities as soon as practicable but in no event less than ten (10)
days before the anticipated filing date, which notice shall describe the amount and type of
securities to be included in such offering, the intended method(s) of distribution, and the name of
the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the
holders of Registrable Securities in such notice the opportunity to register the sale of such
number of shares of Registrable Securities as such holders may request in writing within fifteen
(15) days following receipt of such notice (a “Piggy-Back Registration”). The Company shall cause
such Registrable Securities to be included in such registration and shall use its best efforts to
cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in a Piggy-Back Registration to be included on the
same terms and conditions as any similar securities of the Company and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to distribute their
securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall
enter into an underwriting agreement in customary form (with respect to selling shareholders) with
the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders
of Registrable Securities in writing that the dollar amount or number of Common Shares which the
Company desires to sell, taken together with Common Shares, if any, as to which registration has
been demanded pursuant to written contractual arrangements with persons other than the holders of
Registrable Securities hereunder, the Registrable Securities as to which registration has been
requested under this Section 2.2, and the Common Shares, if any, as to which registration has been
requested pursuant to the written contractual piggy-back registration rights of other shareholders
of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such
registration:
(i) If the registration is undertaken for the Company’s account: (A) first, the Common Shares
or other securities that the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (A), the Common Shares, if any, including the Registrable Securities, as
to which registration has been requested pursuant to written contractual piggy-back registration
rights of security holders (pro rata in accordance with the number of Common Shares which each such
person has actually requested to be included in
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such registration, regardless of the number of Common Shares with respect to which such
persons have the right to request such inclusion) that can be sold without exceeding the
Maximum Number of Shares; and
(ii) If the registration is a “demand” registration undertaken at the demand of persons
other than the holders of Registrable Securities pursuant to written contractual arrangements with
such persons, (A) first, the Common Shares for the account of the demanding persons that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (A), the Common Shares or other
securities that the Company desires to sell that can be sold without exceeding the Maximum Number
of Shares; and (C) third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the Registrable Securities as to which registration has
been requested under this Section 2.2 (pro rata in accordance with the number of shares of
Registrable Securities held by each such holder); and (D) fourth, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Common
Shares, if any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights which other shareholders desire to sell that can be sold without
exceeding the Maximum Number of Shares.
2.2.3. Withdrawal. Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a registration statement at any
time prior to the effectiveness of the Registration Statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities
in connection with such Piggy-Back Registration as provided in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable Securities may at any
time and from time to time, request in writing that the Company register the resale of any or all
of such Registrable Securities on Form S-3 or any similar short-form registration which may be
available at such time (“Form S-3”); provided, however, that the Company is eligible to use such
form and provided further that the Company shall not be obligated to effect such request through an
underwritten offering. Upon receipt of such written request, the Company will promptly give written
notice of the proposed registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such holder’s or holders’
Registrable Securities as are specified in such request, together with all or such portion of the
Registrable Securities of any other holder or holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect any such
registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such offering; or
(ii) if the holders of the Registrable Securities, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the public of less than
$2,000,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand
Registrations
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effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company shall use
commercially reasonable efforts to effect the registration and sale of such Registrable Securities
in accordance with the intended method(s) of distribution thereof as expeditiously as practicable,
and in connection with any such request:
3.1.1.
Filing Registration Statement. The Company shall, as expeditiously as possible
and in any event within sixty (60) days after receipt of a request for a Demand Registration
pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof, and shall use
commercially reasonable efforts to cause such Registration Statement to become and remain effective
for the period required by Section 3.1.3; provided, however, that the Company shall have the right
to defer any Demand Registration for up to sixty (60) days, and any Piggy-Back Registration for
such period as may be applicable to deferment of any demand registration to which such Piggy-Back
Registration relates, in each case if the Company shall furnish to the holders a certificate signed
by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be materially detrimental to the Company and its shareholders
for such Registration Statement to be effected at such time; provided further, however, that the
Company shall not have the right to exercise the right set forth in the immediately preceding
proviso more than once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2. Copies. The Company shall, prior to filing a Registration Statement or
prospectus, or any amendment or supplement thereto, furnish without charge to the holders
of Registrable Securities included in such registration that have so requested in writing, and such
holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement, the prospectus included in such
Registration Statement (including each preliminary prospectus), and such other documents as the
holders of Registrable Securities included in such registration or legal counsel for any such
holders may request in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3. Amendments and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and
supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of the Securities Act until
all Registrable Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of
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one hundred twenty (120) days plus any period during which any such disposition is interfered with
by any stop order or injunction of the Commission or any governmental agency or court) or such
securities have been withdrawn.
3.1.4. Notification. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in
all events within two (2)
business days of the occurrence of any of the following: (i) when such Registration Statement
becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the
Company shall take all actions required to prevent the entry of such stop order or to remove it if
entered); and (iv) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by such Registration
Statement, such prospectus will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, and promptly make available to the holders of Registrable Securities included in such
Registration Statement any such supplement or amendment; except that before filing with the
Commission a Registration Statement or prospectus or any amendment or supplement thereto, the
Company shall furnish to the holders of Registrable Securities included in such Registration
Statement, that have so requested in writing, and to the legal counsel for any such holders, copies
of all such documents proposed to be filed sufficiently in advance of filing to provide such
holders and legal counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any Registration Statement or prospectus or amendment or
supplement thereto, including documents incorporated by reference, to which such holders or their
legal counsel shall reasonably object.
3.1.5. State Securities Laws Compliance. The Company shall use commercially reasonable
efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement
under such securities or “blue sky” laws of such jurisdictions in the United States as the holders
of Registrable Securities included in such Registration Statement (in light of their intended plan
of distribution) may request and (ii) take such action necessary to cause such Registrable
Securities covered by the Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be necessary or advisable to enable the
holders of Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions:
provided, however, that
the Company shall not be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e) or subject itself to taxation
in any such jurisdiction.
3.1.6. Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
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such other actions as are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities, The representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any Underwriters, to the extent
applicable, shall also be made to and for the benefit of the holders of Registrable Securities
included in such registration statement. No holder of Registrable Securities included in such
registration statement shall be required to make any representations or warranties in the
underwriting agreement except, if applicable, with respect to such holder’s organization, good
standing, authority, title to Registrable Securities, lack of conflict of such sale with such
holder’s material agreements and organizational documents, and with respect to written information
relating to such holder that such holder has furnished in writing expressly for inclusion in such
Registration Statement.
3.1.7. Cooperation. The principal executive officer of the Company, the principal
financial officer of the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in any offering of
Registrable Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all other offering
materials and related documents, and participation in meetings with Underwriters, attorneys,
accountants and potential investors.
3.1.8. Records. The Company shall make available for inspection by the holders of
Registrable Securities included in such Registration Statement, any Underwriter participating in
any disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration
Statement or any Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
3.1.9. Opinions and Comfort Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed counterpart, addressed to
such holder, of (i) any opinion of counsel to the Company
delivered to any Underwriter and (ii)
provided that such holder has furnished customary representations and certifications, any comfort
letter from the Company’s independent public accountants delivered to any Underwriter.
3.1.10. Listing. The Company shall use its best efforts to cause all
Registrable Securities included in any registration to be listed on such exchanges or otherwise
designated for trading in the same manner as similar securities issued by the Company are then
listed or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1.4(iv), or, in the case
of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the
Company, pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s
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Board of Directors, of the ability of all “insiders” covered by such program to transact in the
Company’s securities because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately discontinue disposition of
such Registrable Securities pursuant to the Registration Statement covering such Registrable
Securities until such holder receives the supplemented or amended prospectus contemplated by
Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s
securities is removed, as applicable, and, if so directed by the Company, each such holder will
deliver to the Company all copies, other than permanent file copies then in such holder’s
possession, of the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration
pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and all
expenses incurred in performing or complying with its other obligations under this Agreement,
whether or not the Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky”
laws (including fees and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including,
without limitation, all salaries and expenses of its officers and employees); (v) the fees and
expenses incurred in connection with the listing of the Registrable Securities as required by
Section 3.1.11; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery
of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the fees and
expenses of any special experts retained by the Company in connection with such registration and
(ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest
of the Registrable Securities included in such registration. The Company shall have no obligation
to pay any underwriting discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling commissions shall be
borne by such holders. Additionally, in an underwritten offering, all selling shareholders and the
Company shall bear the expenses of the underwriter pro rata in proportion to the respective amount
of shares each is selling in such offering.
3.4 Information. The holders of Registrable Securities shall provide such
information’s may reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including amendments and supplements
thereto, in order to effect the registration of any Registrable Securities under the Securities Act
pursuant to Section 2 and in connection with the Company’s obligation to comply with federal and
applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold
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harmless each Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and
each person, if any, who controls an Investor and each other holder of Registrable Securities
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each,
an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages
or liabilities, whether joint or several, arising out of or based upon any untrue statement (or
allegedly untrue statement) of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arising out of or based upon any
omission (or alleged omission) to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by the Company of the Securities
Act or any rule or regulation promulgated thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such registration; and the
Company shall promptly reimburse the Investor Indemnified Party for any legal and any other
expenses reasonably incurred by such Investor Indemnified Party in connection with investigating
and defending any such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue statement or allegedly
untrue statement or omission or alleged omission made in such Registration Statement, preliminary
prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall indemnify any Underwriter of the
Registrable Securities, their officers, affiliates, directors, partners, members and agents and
each person who controls such Underwriter on substantially the same basis as that of the
indemnification provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling holder of
Registrable Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by such selling
holder, indemnify and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls such selling holder or such
underwriter within the meaning of the Securities Act, against any losses, claims, judgments,
damages or liabilities, whether joint or several, insofar as such losses, claims, judgments,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or allegedly untrue statement of a material fact contained in any Registration Statement
under which the sale of such Registrable Securities was registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the statement or omission was
made in reliance upon and in conformity with information furnished in writing to the Company by
such selling holder expressly for use therein, and shall reimburse the Company, its directors and
officers, and each such controlling person for any legal or other expenses
11
reasonably incurred by any of them in connection with investigation or
defending any such loss, claim, damage, liability or action. Each selling
holder’s indemnification obligations hereunder shall be several and not
joint and shall be limited to the amount of any net proceeds actually
received by such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any person of any notice of any loss, claim, damage or liability or any
action in respect of which indemnity may be sought pursuant to Section 4.1
or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect
thereof is to be made against any other person for indemnification
hereunder, notify such other person (the “Indemnifying Party”) in writing of
the loss, claim, judgment, damage, liability or action; provided, however,
that the failure by the Indemnified Party to notify the Indemnifying Party
shall not relieve the Indemnifying Party from any liability which the
Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such
failure. If the Indemnified Party is seeking indemnification with respect to
any claim or action brought against the Indemnified Party, then the
Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying
Parties, to assume control of the defense thereof with counsel satisfactory
to the Indemnified Party. After notice from the Indemnifying Party to the
Indemnified Party of its election to assume control of the defense of such
claim or action, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, with the
fees and expenses of such counsel to be paid by such Indemnifying Party if,
based upon the written opinion of counsel of such Indemnified Party,
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, consent to entry of judgment or effect any settlement of
any claim or pending or threatened proceeding in respect of which the
Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from
all liability arising out of such claim or proceeding.
4.4 Contribution.
4.4.1. If the indemnification provided for in the foregoing Sections
4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any
loss, claim, damage, liability or action referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage, liability or action in such proportion
as is appropriate to reflect the relative fault of the Indemnified Parties
and the Indemnifying Parties in connection with the actions or omissions
which resulted in such loss, claim, damage, liability or action, as well as
any
12
other relevant equitable considerations. The relative fault of any
Indemnified Party and any Indemnifying Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such Indemnified Party or
such Indemnifying Party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
4.4.2. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding Section 4.4.1. The amount paid or payable by an Indemnified Party
as a result of any loss, claim, damage, liability or action referred to in
the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by
such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 4.4,
no holder of Registrable Securities shall be required to contribute any
amount in excess of the dollar amount of the net proceeds (after payment of
any underwriting fees, discounts, commissions or taxes) actually received
by such holder from the sale of Registrable Securities which gave rise to
such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act
and shall take such further action as the holders of Registrable Securities
may reasonably request, all to the extent required from time to time to
enable such holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided
by Rule 144 under the Securities Act, as such Rules may be amended from
time to time, or any similar Rule or regulation hereafter adopted by the
Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants
that no person, other than a holder of the Registrable Securities, has any
right to require the Company to register any shares of the Company’s share
capital for sale or to include shares of the Company’s share capital in any
registration filed by the Company for the sale of shares of share capital
for its own account or for the account of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations of the Company hereunder may not be
assigned or delegated by the Company in whole or in part. This Agreement
and the rights, duties and obligations of the holders of Registrable
Securities hereunder may be freely assigned or delegated by such holder of
Registrable Securities in conjunction with and to the extent of any
transfer of Registrable
13
Securities by any such holder. This Agreement and the provisions
hereof shall be binding upon and shall inure to the benefit of each of the
parties and their respective successors and the permitted assigns of the
Investor or holder of Registrable Securities or of any assignee of the
Investor or holder of Registrable Securities. This Agreement is not
intended to confer any rights or benefits on any persons that are not party
hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively, “Notices”) required or permitted to be
given hereunder or which are given with respect to this Agreement shall be
in writing and shall be personally served, delivered by reputable air
courier service with charges prepaid, or transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission
if personally served or transmitted by telegram, telex or facsimile;
provided, that if such service or transmission is not on a business day or
is after normal business hours, then such notice shall be deemed given on
the next business day. Notice otherwise sent as provided herein shall be
deemed given on the next business day following timely delivery of such
notice to a reputable air courier service with an order for next-day
delivery.
To the Company:
Cross Shore Acquisition Corporation
c/o Glencoe Capital
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chairman
c/o Glencoe Capital
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chairman
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx (London) LLP
00 Xxxx Xxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxx X. Xxxxxxxxx
00 Xxxx Xxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxx X. Xxxxxxxxx
To an Investor, to the address of such investor on the books of the Company,
with a copy to:
Sunrise Securities Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Gloldman
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Gloldman
14
6.4
Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other
term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall
be added as a part of this Agreement a provision as similar in terms to
such invalid or unenforceable provision as may be possible and be valid and
enforceable.
6.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including all agreements
entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements,
representations, understandings, negotiations and discussions between
the parties, whether oral or written.
6.7 Modifications and Amendments. No amendment, modification or
termination of this Agreement shall be binding upon any party unless
executed in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided
that such waiver will not be effective against the waiving party unless it
is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any . preceding or succeeding breach
thereof nor of any other agreement or provision herein contained. No waiver
or extension of time for performance of any obligations or acts shall be
deemed a waiver or extension of the time for performance of any other
obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to
observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable
Securities may proceed to protect and enforce its rights by suit in equity
or action at law, whether for specific performance of any term contained in
this Agreement or for an injunction against the breach of any such term or
in aid of the exercise of any power granted in this Agreement or to enforce
any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and
each such right, power or remedy shall be cumulative and in addition to any
other right, power or remedy, whether conferred by this Agreement or now or
hereafter available at law, in equity, by statute or otherwise.
15
6.11 Governing Law. This Agreement shall be governed by, interpreted
under, and construed in accordance with the internal laws of the State of
New York applicable to agreements made and to be performed within the State
of New York, without giving effect to any choice-of-law provisions thereof
that would compel the application of the substantive laws of any other
jurisdiction.
6.12
Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or
otherwise) arising out of, connected with or relating to this Agreement,
the transactions contemplated hereby, or the actions of the Investor in the
negotiation, administration, performance or enforcement hereof.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
16
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be executed and delivered by their duly
authorized representatives as of the date first written above.
| CROSS SHORE ACQUISITION CORPORATION | ||||||
| A Delaware corporation | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| INVESTORS: | ||||||
| /s/ Xxxxxxx Xxxxxxxxxx | ||||||
| XXXXXXX XXXXXXXXXX | ||||||
| /s/ Xxx Xxxxxxx | ||||||
| XXX XXXXXXX | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| CSA I, LLC | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| CSA II, LLC | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| CSA III, LLC | ||||||
| /s/ Xxxxxx Xxxxxx | ||||||
| SUNRlSE SECURITIES CORP. | ||||||
