Form Of REGISTRATION RIGHTS AGREEMENT)
Exhibit
10.4
(Form
Of REGISTRATION RIGHTS AGREEMENT)
dated
as of
,
2007
among
GSC
ACQUISITION COMPANY
and
THE
PERSONS NAMED HEREIN
TABLE
OF CONTENTS
Page
ARTICLE
1
|
|
DEFINITIONS
|
|
Section
1.01. Defined Terms
|
1
|
Section
1.02. General Interpretive Principles
|
4
|
ARTICLE
2
|
|
REGISTRATION
RIGHTS
|
|
Section
2.01. Registrations on Form S-3
|
4
|
Section
2.02. Demand Registrations
|
5
|
Section
2.03. Incidental Registrations (“Piggy-Back”
Registrations)
|
9
|
Section
2.04. Registration Procedures
|
11
|
Section
2.05. Underwritten Offerings
|
15
|
Section
2.06. No Inconsistent Agreements; Additional
Rights
|
16
|
Section
2.07. Obligation to Suspend
Distribution
|
17
|
Section
2.08. Registration Expenses
|
17
|
Section
2.09. Indemnification
|
18
|
Section
2.10. Rule 144
|
21
|
ARTICLE
3
|
|
MISCELLANEOUS
|
|
Section
3.01. Term
|
22
|
Section
3.02. Notices
|
22
|
Section
3.03. Successors, Assigns and
Transferees
|
23
|
Section
3.04. Governing Law; Service of Process; Consent to
Jurisdiction
|
23
|
Section
3.05. Headings
|
23
|
Section
3.06. Severability
|
23
|
Section
3.07. Amendment; Waiver
|
24
|
Section
3.08. Counterparts
|
24
|
Section
3.09. Attorney-In-Fact
|
24
|
i
(Form Of REGISTRATION RIGHTS AGREEMENT)
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of
,
2007, by and among GSC ACQUISITION COMPANY, a Delaware corporation (the
“Company”) and the Persons listed on Schedule I hereto (each, a
“Founder”).
WHEREAS,
the Founders collectively beneficially own 4,375,000 shares (the
“Initial Founders’ Shares”) of the Company’s common stock, par
value $0.001 per share (the “Common Stock”), 4,000,000 initial
founders’ warrants, each to purchase one share of Common Stock (the
“Initial Founders’ Warrants” and together with the Initial
Founders’ Shares and the shares of Common Stock issuable upon exercise of the
Initial Founders’ Warrants, the “Founders’ Securities”), all of
which were acquired by private placement and are currently held of record by
certain of the Founders;
WHEREAS,
the Founders may in certain circumstances and subject to certain transfer and
other restrictions transfer (or cause to be transferred) to Permitted
Transferees (as defined below) some or all of the Founders’
Securities;
WHEREAS,
the Founders and the Company desire to enter into this Agreement to provide
the
Founders with certain rights relating to the registration of the Founders’
Securities, and to provide for any Permitted Transferees who receive Founders’
Securities from time to time with the ability to accede to this
agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises, covenants
and agreements of the parties hereto, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
“Adverse
Disclosure” means public disclosure of material non-public information,
which disclosure, in the good faith judgment of the chief executive officer
or
principal financial officer of the Company after consultation with counsel
to
the Company, (i) would be required to be made in any Registration Statement
or
prospectus in order for the applicable Registration Statement or prospectus
not
to contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein (in the case of any
1
prospectus
and any preliminary prospectus, in light of the circumstances under which they
were made) not misleading, (ii) would not be required to be made at such time
if
the Registration Statement were not being filed and (iii) the Company has a
bona fide business purpose for not publicly making it.
“Agreement”
has the meaning set forth in the preamble hereto.
“business
day” means any day, except a Saturday, Sunday or legal holiday on which
the banking institutions in the City of New York are authorized or obligated
by
law or executive order to close.
“Common
Stock” has the meaning set forth in the recitals.
“Company”
has the meaning set forth in the preamble and shall include the Company’s
successors by merger, acquisition, reorganization or otherwise.
“Demand
Registration” has the meaning set forth in Section
2.02(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any
successor thereto, and any rules and regulations promulgated thereunder, all
as
the same shall be in effect from time to time.
“Founder”
has the meaning set forth in the preamble hereto.
“holder”
or “holders” means any holder or holders of Registrable
Securities who is a party hereto or who otherwise agrees in writing to be bound
by the provisions of this Agreement pursuant to Section 3.03.
“Incidental
Registration” has the meaning set forth in Section
2.03(a).
“Initial
Business Combination” means the acquisition by the Company, through a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or other similar business combination, of one ore more businesses
or assets.
“Investors”
has the meaning set forth in the preamble hereto.
“Loss”
has the meaning set forth in Section 2.09(a).
“NASD”
means the National Association of Securities Dealers, Inc.
“Permitted
Transferees” has the meaning set forth in the Warrant Agreement dated
[ ],
2007, between the Company and American Stock Transfer & Trust
Company.
2
“Person”
shall be construed as broadly as possible and shall include an individual,
corporation, association, partnership (including a limited liability partnership
or a limited liability limited partnership), limited liability company, estate,
trust, joint venture, unincorporated organization or a government or any
department, agency or political subdivision thereof.
“prospectus”
means the prospectus included in any Registration Statement, all amendments
and
supplements to such prospectus and all material incorporated by reference in
such prospectus.
“Registrable
Securities” means the Initial Founders’ Shares, the Initial Founders’
Warrants and the shares of Common Stock issuable upon exercise of
the Initial
Founders’ Warrants, in each case after their respective Release Dates;
provided, however, that any of the foregoing securities shall cease to
be Registrable Securities to the extent that (i) a Registration Statement with
respect to their sale has been declared effective under the Securities Act
and
they have been sold, transferred, disposed of or exchanged pursuant to such
Registration Statement, (ii) they have been otherwise transferred pursuant
to
Rule 144 under the Securities Act (or any similar rule or regulation then in
force), new certificates for them not bearing a legend restricting transfer
under the Securities Act shall have been delivered by the Company and they
may
be publicly resold without volume or method of sale restrictions without
registration under the Securities Act or (iii) they have ceased to be
outstanding. For purposes of this Agreement, the Initial Founders’ Shares and
the shares of Common Stock issuable upon exercise of the Initial Founders’
Warrants shall together constitute one “class” of Registrable Securities and the
Initial Founders’ Warrants shall constitute another class of Registrable
Securities, provided that no Registrable Securities shall be part of
the relevant class until the Release Date for such Registrable Securities.
A
“percentage” (or a “majority”) of the Registrable Securities or any class
thereof (or, where applicable, of any other securities) shall be determined
based on the total number of such securities outstanding at the relevant
time.
“registration”
means a registration of the Company’s securities for sale to the public under a
Registration Statement.
“Registration
Statement” means any registration statement (other than a registration
statement on Form S-4 or Form S-8) of the Company for a public offering of
the
Company’s securities filed with, or to be filed with, the SEC under the rules
and regulations promulgated under the Securities Act, including the prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
“Release
Date” means, with respect to the Initial Founders’ Shares, the date
that is three years from the date the Company completes its initial
public
3
offering
of securities, and with respect to the Initial Founders’ Warrants and the shares
of Common Stock issuable on exercise of them, the date on which the Warrants
become exercisable by their terms.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and any successor
thereto, and any rules and regulations promulgated thereunder, all as the same
shall be in effect from time to time.
“Underwritten
Offering” means a registration in which securities of the Company are
sold to an underwriter or underwriters on a firm commitment basis for reoffering
to the public.
Section
1.01. General
Interpretive Principles. Whenever used in this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, any
noun
or pronoun shall be deemed to include the plural as well as the singular and
to
cover all genders. The name assigned to this Agreement and the section captions
used herein are for convenience of reference only and shall not be construed
to
affect the meaning, construction or effect hereof. Unless otherwise specified,
the terms “hereof,” “herein,” “hereunder” and similar terms refer to this
Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of
this
Agreement.
ARTICLE
2
REGISTRATION
RIGHTS
Section
2.01. Registrations
on Form S-3.
(a) Filing.
The holders of Registrable Securities may at any time and from time to time
on
or after the applicable Release Date, request in writing that the Company
register the resale of any or all of such Registrable Securities on Form S-3
or
a successor or other appropriate, similar short-form registration which may
be
available at such time (“Form S-3”); provided,
however, that (i) the Company shall not be obligated to effect such request
through an Underwritten Offering and (ii) the Company shall not be obligated
to
effect such a request if the Company has within the preceding twelve (12) months
effected a registration on Form S-3. 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
4
specified
in a written request given within fifteen (15) business 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 2.01: (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 at an aggregate offering price to the public of
less
than $500,000. Registrations effected pursuant to this Section 2.01 shall not
be
counted as Demand Registrations effected pursuant to Section 2.02.
(b) Suspension
of Registration. If the filing, initial effectiveness or continued use of Form
S-3 at any time would require the Company to make an Adverse Disclosure or
would
require the inclusion in such Form S-3 of financial statements that are
unavailable to the Company for reasons beyond the Company’s control, the Company
may, upon giving prompt written notice of such action to the holders, delay
the
filing or initial effectiveness of, or suspend use of, the Form S-3 for the
shortest period of time determined in good faith by the Company to be necessary
for such purpose. In the event the Company exercises its rights under the
preceding sentence, the holders agree to suspend, immediately upon their receipt
of the notice referred to above, their use of the prospectus relating to the
registration on such Form S-3 in connection with any sale or offer to sell
Registrable Securities and agree not to disclose to any other Person the fact
that the Company has exercised such rights or any related facts. The Company
shall immediately notify the holders upon the expiration of any period during
which it exercised its rights under this Section 2.01(b).
Section
2.02. Demand
Registrations.
(a) Demand
by
Holders. (i) At any time and from time on or after the applicable Release Date,
the holders of not less than a majority of any class of the Registrable
Securities may make a written request to the Company for registration of all
or
part of each such class of Registrable Securities held by those holders,
provided that the estimated market value of the Registrable Securities
of all classes to be so registered thereunder is at least $500,000 in the
aggregate. Any such requested registration shall be referred to as a
“Demand Registration.” Each request for a Demand Registration
shall specify the class(es) and aggregate amount(s) of Registrable Securities
to
be registered and the intended methods of distribution thereof.
(ii) Within
five (5) business days following receipt of any request for a Demand
Registration, the Company shall deliver written notice of such request to all
other holders of Registrable Securities of the class or classes to be
registered. Thereafter, the Company shall include in such Demand Registration
any additional Registrable Securities of each such class which the holder or
holders thereof have requested in writing be
5
included
in such Demand Registration, provided that all such requests have been
received by the Company within ten (10) business days of the Company’s having
sent the applicable notice to such holder or holders (each such holder,
including the Registrable Securities in such Demand Registration, a
“Demanding Holder”). All such requests shall specify the class
and aggregate amount of Registrable Securities to be registered and the intended
method of distribution. The Company may include in such registration additional
securities of the class or classes of the Registrable Securities to be
registered thereunder, including securities to be sold for the Company’s own
account or for the account of Persons who are not holders of Registrable
Securities.
(iii) As
promptly as practicable, and, in any event, within sixty (60) days following
receipt of a request for a Demand Registration, the Company shall file a
Registration Statement relating to such Demand Registration and thereafter
the
Company shall use its reasonable best efforts to cause such Registration
Statement to be declared effective under the Securities Act.
(b) Limitation
on Demand Registrations. In no event shall the Company be required to effect
more than two (2) Demand Registrations, only one of which may be effected prior
to the last of the Release Dates. In addition, the Company shall not be required
to file a Registration Statement for a Demand Registration at any time during
the 12-month period following the effective date of another Registration
Statement filed pursuant to this Section 2.02.
(c) Demand
Withdrawal. A holder may withdraw its Registrable Securities from a Demand
Registration at any time. If all holders withdraw, or holders withdraw
Registrable Securities from a Demand Registration in such amounts that the
Registrable Securities of all classes that remain covered by the relevant
Registration Statement have an estimated market value of less than $500,000,
the
Company shall cease all efforts to secure registration and such registration
shall be deemed a Demand Registration for purposes of Section 2.02(b) unless
the
withdrawal is based on the reasonable determination of the Demanding Holders
that there has been, since the date of such request, a material adverse change
in the business or prospects of the Company or in general market conditions
and
the Demanding Holders who requested such registration shall have paid or
reimbursed the Company for all of the reasonable out-of-pocket fees and expenses
incurred by the Company in connection with the withdrawn
registration.
(d) Effective
Registration. The Company shall be deemed to have effected a Demand Registration
if the applicable Registration Statement is declared effective by the SEC and
remains effective for not less than 180 days (or such shorter period as will
terminate when all Registrable Securities covered by such Registration Statement
have been sold or withdrawn) and the Company has
6
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 SEC
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) holders of a majority of the relevant class
or
classes of Registrable Securities 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.
(e) Suspension
of Registration. If the filing, initial effectiveness or continued use of a
Registration Statement in respect of a Demand Registration at any time would
require the Company to make an Adverse Disclosure or would require the inclusion
in such Registration Statement of financial statements that are unavailable
to
the Company for reasons beyond the Company’s control, the Company may, upon
giving prompt written notice of such action to the holders, delay the filing
or
initial effectiveness of, or suspend use of, such Registration Statement for
the
shortest possible period of time determined in good faith by the Company to
be
necessary for such purpose. In the event the Company exercises its rights under
the preceding sentence, the holders agree to suspend, immediately upon their
receipt of the notice referred to above, their use of the prospectus relating
to
the Demand Registration in connection with any sale or offer to sell Registrable
Securities. The Company shall immediately notify the holders of the expiration
of any period during which it exercised its rights under this Section
2.02(e).
(f) Underwritten
Offering. If the holders of not less than a majority of the Registrable
Securities of any class that is included in any offering pursuant to a Demand
Registration so elect, the offering of all of the Registrable Securities of
that
class shall be in the form of an Underwritten Offering and the right of any
holder to include Registrable Securities of that class in the Demand
Registration shall be conditioned upon such holder’s participation in the
Underwritten Offering. The holders of a majority of the class of Registrable
Securities included in such Underwritten Offering shall, in consultation with
the Company, have the right to select the managing underwriter or underwriters
for the offering, subject to the right of the Company should it so choose to
select one co-managing underwriter reasonably acceptable to such holders. All
holders proposing to distribute their Registrable Securities through such an
underwriting shall enter into an underwriting agreement in customary form with
the underwriter(s) selected for such underwriting.
7
(g) Reduction
of Offering. If the managing underwriter or underwriters of a proposed
Underwritten Offering of a class of Registrable Securities included in a Demand
Registration, inform the holders of such Registrable Securities and the Company
in writing that, in its or their opinion, the number of securities of such
class
requested to be included in such Demand Registration, including securities
of
the Company for its own account or for the account of other Persons who are
not
holders of Registrable Securities that the Company desires to sell and any
securities as to which registration has been requested pursuant to written
piggy-back registration rights (as described in Section 2.03 below), exceeds
the
maximum dollar amount or maximum number of securities, as applicable, that
can
be sold in such offering without being likely to have a significant adverse
effect on the price, timing or distribution of the class of securities offered
or the market for the class of securities offered (such maximum dollar amount
or
maximum number of securities, as applicable, the “Maximum Number of
Securities”), then the Company shall include in such
registration:
(i) first,
Registrable Securities as to which Demand Registration has been requested by
the
Demanding Holders, in an amount up to but not exceeding the Maximum Number
of
Securities (allocated pro rata among the holders who have requested
participation in the Demand Registration, based, for each such holder, on the
percentage derived by dividing (x) the number of Registrable Securities of
such
class which such holder has requested to include in such Demand Registration
by
(y) the aggregate number of Registrable Securities of such class which all
such
holders have requested to include);
(ii) second,
to
the extent that the Maximum Number of Securities has not been reached under
the
foregoing clause (i), securities that the Company desires to sell that can
be
sold without exceeding the Maximum Number of Securities;
(iii) third,
to
the extent that the Maximum Number of Securities has not been reached under
the
foregoing clauses (i) and (ii), securities 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 Securities; and
(iv) fourth,
to
the extent that the Maximum Number of Securities have not been reached under
the
foregoing clauses (i), (ii), and (iii), securities that other security holders
of the Company desire to sell that can be sold without exceeding the Maximum
Number of Securities.
To
the
extent that any Registrable Securities requested to be registered are excluded
pursuant to the foregoing provisions, the holders shall have the right to one
additional Demand Registration under this Section 2.02.
8
(h)
Registration Statement Form. Registrations under this Section 2.02 shall be
on
such appropriate registration form of the SEC (i) as shall be selected by the
Company and as shall be reasonably acceptable to the holders of a majority
of
each class of Registrable Securities requesting participation in the Demand
Registration and (ii) as shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the applicable holders’ requests for such registration.
Notwithstanding the foregoing, if, pursuant to a Demand Registration, (x) the
Company proposes to effect registration by filing a Registration Statement
on
Form S-3, (y) such registration is in connection with an Underwritten Offering
and (z) the managing underwriter or underwriters shall advise the Company in
writing that, in its or their opinion, the use of another form of registration
statement (or the inclusion, rather than the incorporation by reference, of
information in the prospectus related to a Registration Statement on Form S-3)
is of material importance to the success of such proposed offering, then such
registration shall be effected on such other form (or such information shall
be
so included in such prospectus).
Section
2.03. Incidental
Registrations (“Piggy-Back” Registrations).
(a) Participation.
(i) If at any time on or after the first Release Date, the Company proposes
to
file a Registration Statement with respect to any offering of its securities
for
its own account or for the account of any holders of its securities (or by
the
Company and by security holders of the Company, including, without limitation,
pursuant to Section 2.02 hereof), other than (A) a registration of securities
relating solely to an offering and sale to employees or directors of the Company
pursuant to any employee stock plan or other employee benefit plan arrangement,
(B) a registration on Form S-4 or S-8 or any successor form to such forms,
(C)
an exchange offer or offering of securities solely to the Company’s existing
shareholders, (D) an offering of debt that is convertible into equity
securities, (E) a dividend reinvestment plan, or (F) solely in connection with
a
merger, consolidation or non-capital raising bona fide business
transaction, then, as soon as practicable (but in no event less than ten (10)
business days prior to the proposed date of filing such Registration Statement),
the Company shall give written notice of such proposed filing to all holders
of
Registrable Securities, which notice shall describe the amount and class 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 such notice shall offer the holders of such
Registrable Securities the opportunity to register such number of Registrable
Securities as each such holder may request in writing (an “Incidental
Registration”). Subject to Section 2.03(b), the Company shall include
in such Registration Statement all such Registrable Securities requested to
be
included therein within five (5) business days after the receipt by such holder
of any such notice, on the same terms and conditions as any similar securities
of the Company. If at any time after giving written notice of its intention
to
register any securities and prior to the effective date of the
9
Registration
Statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, (x) in the case
of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration, and (y) in
the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities.
(ii) If
the
offering pursuant to an Incidental Registration is to be an Underwritten
Offering, then each holder making a request for its Registrable Securities
to be
included therein must, and the Company shall use its best efforts to make such
arrangements with the underwriters so that each such holder may, participate
in
such Underwritten Offering on the same terms and conditions as the Company
and
other Persons selling securities in such Underwritten Offering. If the offering
pursuant to such registration is to be on any other basis, then each holder
making a request for an Incidental Registration pursuant to this Section 2.03(a)
must participate in such offering on such basis.
(iii) Each
holder of Registrable Securities shall be permitted to withdraw all or part
of
such holder’s Registrable Securities from an Incidental Registration at any
time;
(b) Reduction
of Incidental Registration. If the managing underwriter or underwriters of
any
proposed Underwritten Offering of a class of securities included in an
Incidental Registration (or in the case of an Incidental Registration not being
underwritten, the Company) informs the holders of Registrable Securities of
any
class sought to be included in such registration in writing that, in its or
their opinion, the total amount or kind of securities which such holders and
any
other Persons intend to include in such offering exceeds the number which can
be
sold in such offering without being likely to have a significant adverse effect
on the price, timing or distribution of the class or classes of the securities
offered or the market for the class or classes of securities offered or the
Company’s common stock, then the securities of each class to be included in such
registration shall be allocated as follows:
(i) if
the
registration is undertaken for the Company’s account: (x) first, the securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Securities and (y) second, to the extent that the Maximum Number
of
Securities has not been reached under the foregoing clause (x), securities,
if
any, including the Registrable Securities, as to which registration has been
requested pursuant to written contractual incidental registration rights of
security holders (including this
10
Agreement)
that can be sold without exceeding the Maximum Number of Securities (pro
rata in accordance with the number of shares or other securities which each
such Person has actually requested to be included in such
registration);
(ii) if
the
registration is a demand registration undertaken by Persons with demand rights
pursuant to a written contractual arrangement other than this Agreement, (w)
first, securities for the account of the demanding Persons that can be sold
without exceeding the Maximum Number of Securities, (x) second, to the extent
that the Maximum Number of Securities has not been reached under the foregoing
clause (w), securities that the Company desires to sell and that can be sold
without exceeding the Maximum Number of Securities, (y) third, to the extent
that the Maximum Number of Securities has not been reached under the foregoing
clauses (w) and (x), securities (including the Registrable Securities) as to
which registration has been requested pursuant to a written contractual
incidental registration rights of security holders (including this Agreement)
that can be sold without exceeding the Maximum Number of Securities (pro
rata in accordance with the number of shares or other securities which each
such Person has actually requested to be included in such registration), and
(z)
fourth, to the extent that the Maximum Number of Securities have not been
reached under the foregoing clauses (w), (x) and (y), securities that other
security holders desire to sell without exceeding the Maximum Number of
Securities.
Section
2.04. Registration
Procedures.
(a) In
connection with the Company’s registration obligations in this Agreement, the
Company will, subject to the limitations set forth herein, use its reasonable
best efforts to effect any such registration so as to permit the sale of the
applicable Registrable Securities in accordance with the intended method or
methods of distribution thereof as expeditiously as reasonably practicable,
and
in connection therewith the Company will:
(i) before
filing a Registration Statement or prospectus, or any amendments or supplements
thereto and in connection therewith, furnish to the underwriter or underwriters,
if any, and to the holders of the Registrable Securities included in such
registration, and such holders’ legal counsel, copies of all documents prepared
to be filed, which documents will be subject to the review of such underwriters
and such holders and their counsel and, except in the case of a registration
under Section 2.03, will not file any Registration Statement or prospectus
or
amendments or supplements thereto to which a majority of such holders or the
underwriter or underwriters, if any, shall reasonably object;
11
(ii) prepare
and file with the SEC such amendments or supplements to the applicable
Registration Statement or prospectus as may be (A) reasonably requested by
any
participating holder (to the extent such request relates to information relating
to such holder), (B) necessary to keep such registration effective for the
period of time required by this Agreement or (C) reasonably requested by the
holders of a majority of any class of the participating Registrable
Securities;
(iii) notify
the
selling holders of Registrable Securities and the managing underwriter or
underwriters, if any, and (if requested) confirm such advice in writing, as
soon
as reasonably practicable after notice thereof is received by the Company (A)
when the applicable Registration Statement or any amendment thereto has been
filed or becomes effective and when the applicable prospectus or any amendment
or supplement thereto has been filed, (B) of any written comments by the SEC
or
any request by the SEC or any other federal or state governmental authority
for
amendments or supplements to such Registration Statement or prospectus or for
additional information, (C) of the issuance by the SEC or any other governmental
agency or court of any stop order suspending the effectiveness of such
Registration Statement or any order preventing or suspending the use of any
preliminary or final prospectus or the initiation or threat of any proceedings
for such purposes and (D) of the receipt by the Company of any notification
with
respect to the suspension of the qualification of the Registrable Securities
for
offering or sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(iv) promptly
notify each selling holder of Registrable Securities and the managing
underwriter or underwriters, if any, when the Company becomes aware of the
happening of any event as a result of which the applicable Registration
Statement or prospectus (as then in effect) contains any untrue statement of
a
material fact or omits to state a material fact necessary to make the statements
therein (in the case of the prospectus and any preliminary prospectus, in light
of the circumstances under which they were made) not misleading or, if for
any
other reason it shall be necessary to amend or supplement such Registration
Statement or prospectus in order to comply with the Securities Act and, in
either case as promptly as reasonably practicable thereafter, prepare and file
with the SEC an amendment or supplement to such Registration Statement or
prospectus which will correct such statement or omission or effect such
compliance;
(v) make
every
reasonable effort to prevent or obtain at the earliest possible moment the
withdrawal of any stop order with respect to the applicable Registration
Statement or other order suspending the use of any preliminary or final
prospectus;
12
(vi) promptly
incorporate in a prospectus supplement or post-effective amendment to the
applicable Registration Statement such information as the managing underwriter
or underwriters, if any, or the holders of a majority of the Registrable
Securities of the class being sold agree should be included therein relating
to
the plan of distribution with respect to such Registrable Securities; and make
all required filings of such prospectus supplement or post-effective amendment
as soon as reasonably practicable after being notified of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
(vii) furnish
to
each selling holder of Registrable Securities and each managing underwriter,
if
any, without charge, as many conformed copies as such holder or managing
underwriter may reasonably request of the applicable Registration
Statement;
(viii) deliver
to
each selling holder of Registrable Securities and each managing underwriter,
if
any, without charge, as many copies of the applicable prospectus (including
each
preliminary prospectus) as such holder or managing underwriter may reasonably
request (its being understood that the Company consents to the use of the
prospectus by each of the selling holders of Registrable Securities and the
underwriter or underwriters, if any, in connection with the offering and sale
of
the Registrable Securities covered by the prospectus) and such other documents
as such selling holder or managing underwriter may reasonably request in order
to facilitate the disposition of the Registrable Securities by such holder
or
underwriter;
(ix) on
or
prior to the date on which the applicable Registration Statement is declared
effective, use its reasonable best efforts to register or qualify such
Registrable Securities for offer and sale under the securities or “Blue Sky”
laws of each state and other jurisdiction of the United States, as any such
selling holder or underwriter, if any, or their respective counsel reasonably
requests in writing, and do any and all other acts or things reasonably
necessary or advisable to keep such registration or qualification in effect
so
as to permit the commencement and continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution
of
the Registrable Securities covered by the Registration Statement; provided,
however, that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to taxation or general service of process in
any
such jurisdiction where it is not then so subject;
(x) cooperate
with the selling holders of Registrable Securities and the managing underwriter,
underwriters or agent, if any, to facilitate
13
the
timely
preparation and delivery of certificates representing Registrable Securities
to
be sold and not bearing any restrictive legends;
(xi) not
later
than the effective date of the applicable Registration Statement, provide a
CUSIP number for all Registrable Securities and provide the applicable transfer
agent with printed certificates for the Registrable Securities which
certificates shall be in a form eligible for deposit with The Depository Trust
Company;
(xii) obtain
for
delivery to the holders of each class of Registrable Securities being registered
and to the underwriter or underwriters, if any, an opinion or opinions from
counsel for the Company dated the effective date of the Registration Statement
or, in the event of an Underwritten Offering, the date of the closing under
the
underwriting agreement, in customary form, scope and substance, at a minimum
to
the effect that the Registration Statement has been declared effective and
that
no stop order is in effect, which counsel and opinions shall be reasonably
satisfactory to a majority of the holders of each such class and underwriter
or
underwriters, if any, and their respective counsel;
(xiii) in
the
case of an Underwritten Offering, obtain for delivery to the Company and the
underwriter or underwriters, if any, with copies to the holders of Registrable
Securities included in such registration, such cold comfort letter(s) from
the
Company’s independent registered public accounting firm in customary form and
covering such matters of the type customarily covered by cold comfort letters
as
the managing underwriter or underwriters reasonably request;
(xiv) cooperate
with each seller of Registrable Securities and each underwriter or agent, if
any, participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
the
NASD;
(xv) use
its
reasonable best efforts to comply with all applicable rules and regulations
of
the SEC and make generally available to its security holders, as soon as
reasonably practicable (but not more than 15 months) after the effective date
of
the applicable Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xvi) provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by the applicable Registration Statement from and after
a
date not later than the effective date of such Registration
Statement;
14
(xvii) cause
all
Registrable Securities of a class covered by the applicable Registration
Statement to be listed on each securities exchange on which any of the Company’s
securities of such class are then listed or quoted and on each inter-dealer
quotation system on which any of the Company’s securities of such class are then
quoted;
(xviii) make
available upon reasonable notice at reasonable times and for reasonable periods
for inspection by a representative appointed by the holders of a majority of
the
Registrable Securities of each class covered by the applicable Registration
Statement, by any managing underwriter or underwriters participating in any
disposition to be effected pursuant to such Registration Statement and by any
attorney, accountant or other agent retained by such sellers or any such
managing underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company’s officers, directors and employees and the independent public
accountants who have certified its financial statements to make themselves
available to discuss the business of the Company and to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or
agent in connection with such Registration Statement as shall be necessary
to
enable them to exercise their due diligence responsibility (subject to the
entry
by each party referred to in this clause (xviii) into customary confidentiality
agreements in a form reasonably acceptable to the Company); and
(xix) in
the
case of an Underwritten Offering, cause senior executive officers of the Company
to participate in customary “road show” presentations that may be reasonably
requested by the managing underwriter in any such Underwritten Offering and
otherwise to facilitate, cooperate with, and participate in each proposed
offering contemplated herein and customary selling efforts related
thereto.
(b) The
Company may require each selling holder of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Securities and such other information
relating to such holder and its ownership of the applicable Registrable
Securities as the Company may from time to time reasonably request. Each holder
of Registrable Securities agrees to furnish such information to the Company
and
to cooperate with the Company as necessary to enable the Company to comply
with
the provisions of this Agreement. The Company shall have the right to exclude
any holder that does not comply with the preceding sentence from the applicable
registration.
Section
2.05. Underwritten
Offerings.
15
(a)
Underwriting
Agreements. If requested by the underwriters for any Underwritten Offering
requested by holders pursuant to Sections 2.01 or 2.02, the Company and the
holders of Registrable Securities to be included therein shall enter into an
underwriting agreement with such underwriters, such agreement to be reasonably
satisfactory in substance and form to the Company, the holders of a majority
of
each class of the Registrable Securities to be included in such Underwritten
Offering and the underwriters, and to contain such terms and conditions as
are
generally prevailing in agreements of that type, including, without limitation,
indemnities no less favorable to the recipient thereof than those provided
in
Section 2.09. The holders of any Registrable Securities to be included in any
Underwritten Offering pursuant to Section 2.03 shall enter into such an
underwriting agreement at the request of the Company. All of the representations
and warranties and the other agreements by and on the part of the Company to
and
for the benefit of the underwriters included in any such underwriting agreement
shall also be made to and for the benefit of such holders, and any or all of
the
conditions precedent to the obligations of the underwriters under such
underwriting agreement shall be conditions precedent to the obligations of
such
holders. No holder shall be required in any such underwriting agreement to
make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such
holder, such holder’s Registrable Securities, such holder’s intended method of
distribution and any other representations required by law.
(b) Price
and
Underwriting Discounts. In the case of an Underwritten Offering requested by
holders pursuant to Sections 2.01 or 2.02, the price, underwriting discount
and
other financial terms of the related underwriting agreement for each class
of
Registrable Securities shall be determined by the holders of a majority of
such
class of Registrable Securities. In the case of any Underwritten Offering
pursuant to Section 2.03, such price, discount and other terms shall be
determined by the Company, subject to the right of the holders to withdraw
their
request to participate in the registration pursuant to Section 2.03(a)(iii)
after being advised of such price, discount and other terms.
(c) Participation
in Underwritten Offerings. No Person may participate in an Underwritten Offering
unless such Person (i) agrees to sell such Person’s securities on the basis
provided in the underwriting arrangements approved by the Persons entitled
to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
Section
2.06. No
Inconsistent Agreements; Additional Rights. The Company will not
enter into, and is not currently a party to, any agreement that is inconsistent
with the rights granted to the holders of Registrable Securities by this
Agreement.
16
Section
2.07. Obligation
to Suspend Distribution.
(a) Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening
of
any events of the kind described in Sections 2.04(a)(iii)(C), 2.04(a)(iii)(D)(in
any applicable state) or 2.04(a)(iv), such holder will discontinue disposition
of its Registrable Securities pursuant to the Registration Statement, in the
case of Section 2.04(a)(iv), until the holder receives copies of the
supplemented or amended prospectus contemplated by Section 2.04(a)(iv), or
in
any case until the holder is advised in writing by the Company that the use
of
the prospectus may be resumed, and receives copies of any additional or
supplemental filings that are incorporated by reference in the prospectus and,
if so directed by the Company, the holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
holder’s possession, of the prospectus covering such Registrable Securities that
are current at the time of the receipt of such notice. In the event that the
Company shall give any such notice in respect of a Demand Registration, the
period during which the applicable Registration Statement is required to be
maintained effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 2.04(a)(iv) or is advised in writing by the Company
that
the use of the prospectus may be resumed.
(b) In
the
case of a resale registration on Form S-3 pursuant to Section 2.01, upon any
suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company’s 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 the
restriction on the ability of “insiders” to transact in the Company’s securities
is removed.
Section
2.08. Registration
Expenses. (a) The Company shall pay all of the expenses set
forth in this paragraph (a) in connection with a registration under this
Agreement of Registrable Securities. Such expenses are (i) all registration
and
filing fees, and any other fees and expenses associated with filings required
to
be made with the SEC or the NASD, (ii) all fees and expenses of compliance
with
state securities or “Blue Sky” laws, (iii) all printing, duplicating, word
processing, messenger, telephone, facsimile and delivery expenses (including
expenses of printing certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses), (iv) all fees and disbursements of counsel for the Company and
of
all independent certified
17
(a) public
accountants of the Company, (v) Securities Act liability insurance or similar
insurance if the Company so desires and (vi) all fees and expenses incurred
in
connection with the listing of the Registrable Securities on any securities
exchange or the quotation of the Registrable Securities on any inter-dealer
quotation system. In addition, in all cases the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense
of
any audit and the fees and expenses of any other Persons retained by the
Company, including any special experts. In addition, the Company shall pay
all
reasonable fees and disbursements not to exceed
$[ ]
of one law firm or other counsel selected by the holders of a majority of the
Registrable Securities being registered.
(b) The
Company shall not be required to pay any other costs or expenses in the course
of the transactions contemplated hereby, including underwriting discounts and
commissions and transfer taxes attributable to the sale of Registrable
Securities and the fees and expenses of any counsel to any holder of Registrable
Securities other than as provided pursuant to the last sentence of the preceding
paragraph (a), or of counsel to the underwriters.
Section
2.09. Indemnification.
(a) Indemnification
by the Company. The Company agrees to indemnify and hold harmless, to the full
extent permitted by law, each holder of Registrable Securities and their
respective officers, directors, employees, advisors and agents and each Person
who controls (within the meaning of the Securities Act or the Exchange Act)
such
Persons from and against any and all losses, claims, damages, liabilities (or
actions or proceedings in respect thereof, whether or not such indemnified
party
is a party thereto) and expenses (including reasonable costs of investigation
and legal expenses), joint or several (each, a “Loss” and
collectively “Losses”), arising out of or based upon (i) any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Securities were registered
under the Securities Act (including any final, preliminary or summary prospectus
contained therein or any amendment thereof or supplement thereto or any
documents incorporated by reference therein) or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading; provided, however, that the Company shall not be
liable to any indemnified party in any such case to the extent that any such
Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by such holder expressly for use in the preparation thereof;
and
provided, further, that the Company will not be liable to
18
any
indemnified party in any case to the extent that any such Loss arises out of
or
is based upon any untrue statement or alleged untrue statement or omission
or
alleged omission made in any final, preliminary or summary prospectus if such
untrue statement or alleged untrue statement or omission or alleged omission
is
corrected in an amendment or supplement to such prospectus which has been made
available to the holders and the relevant holder of Registrable Securities
fails
to deliver such prospectus as so amended or supplemented, if such delivery
is
required under applicable law or the applicable rules of any securities
exchange, prior to or concurrently with the sales of the Registrable Securities
to the Person asserting such loss, claim, damage, liability or expense. This
indemnity shall be in addition to any liability the Company may otherwise
have.
(b) Indemnification
by the Holders. Each selling holder of Registrable Securities agrees (severally
and not jointly) to indemnify and hold harmless, to the full extent permitted
by
law, the Company, its directors and officers and each Person who controls the
Company (within the meaning of the Securities Act and the Exchange Act) from
and
against any Losses resulting from any untrue statement of a material fact or
any
omission of a material fact required to be stated in the Registration Statement
under which such Registrable Securities were registered under the Securities
Act
(including any final, preliminary or summary prospectus contained therein or
any
amendment thereof or supplement thereto or any documents incorporated by
reference therein), or necessary to make the statements therein (in the case
of
a prospectus or preliminary prospectus, in light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission had been contained in any information
furnished in writing by such selling holder to the Company specifically for
inclusion in such Registration Statement and was not corrected in a subsequent
writing prior to or concurrently with the sale of the Registrable Securities
to
the Person asserting such loss, claim, damage, liability or expense. This
indemnity shall be in addition to any liability such holder may otherwise have.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any indemnified party.
In
no event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder under the sale of the Registrable Securities giving rise to
such
indemnification obligation.
(c) Conduct
of
Indemnification Proceedings. Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of any claim
with
respect to which it seeks indemnification (provided, however, that
any delay or failure to so notify the indemnifying party shall relieve the
indemnifying party of its obligations hereunder only to the extent, if at all,
that it is actually and materially prejudiced by reason of such delay or
failure) and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any
19
Person
entitled to indemnification hereunder shall have the right to select and employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless
(A)
the indemnifying party has agreed in writing to pay such fees or expenses,
(B)
the indemnifying party shall have failed to assume the defense of such claim
within a reasonable time after having received notice of such claim from the
Person entitled to indemnification hereunder and to employ counsel reasonably
satisfactory to such Person, (C) in the reasonable judgment of any such Person,
based upon advice of its counsel, a conflict of interest exists between such
Person and the indemnifying party with respect to such claims or (D) based
on
advice of counsel, the indemnified party has reasonably concluded that there
may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party
such
that the indemnifying party’s assumption of defense of the indemnified party
would be likely to adversely affect the defense of the indemnified party (in
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such claim on behalf of such Person). If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent, but such consent may not be
unreasonably withheld; provided, however, that an indemnifying party
shall not be required to consent to any settlement involving the imposition
of
equitable remedies or involving the imposition of any material obligations
on
such indemnifying party other than financial obligations for which such
indemnified party will be indemnified hereunder. If the indemnifying party
assumes the defense, the indemnifying party shall have the right to settle
such
action without the consent of the indemnified party; provided, however,
that the indemnifying party shall be required to obtain such consent (which
consent shall not be unreasonably withheld) if the settlement includes any
admission of wrongdoing on the part of the indemnified party or any restriction
on the indemnified party or its officers or directors. No indemnifying party
shall consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to each indemnified party of an unconditional release from all
liability in respect to such claim or litigation. The indemnifying party or
parties shall not, in connection with any proceeding or related proceedings,
be
liable for the reasonable fees, disbursements and other charges of more than
one
separate firm at any one time for all such indemnified party or parties unless
(x) the employment of more than one counsel has been authorized in writing
by
the indemnifying party or parties, (y) a conflict or potential conflict exists
or may exist (based on advice of counsel to an indemnified party) between such
indemnified party and the other indemnified parties or (z) based on advice
of
counsel, an indemnified party has reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to
20
the
other
indemnified parties, in each of which cases the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel
or
counsels.
(d) Contribution.
If for any reason the indemnification provided for in the paragraphs (a) and
(b)
of this Section 2.09 is unavailable to an indemnified party or insufficient
to
hold it harmless as contemplated by paragraphs (a) and (b) of this Section
2.09,
then the indemnifying party shall contribute to the amount paid or payable
by
the indemnified party as a result of such Loss in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one
hand and the indemnified party on the other. The relative fault 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 the indemnifying party or
the
indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 2.09(d) to the contrary,
no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.09(d) to contribute any amount in excess of the amount by which the
net proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant
to
this Section 2.09(d) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. 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. If indemnification is available
under this Section 2.09, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Sections 2.09(a) and 2.09(b)
hereof without regard to the relative fault of said indemnifying parties or
indemnified party.
Section
2.10. Rule
144. The Company covenants that it shall use its best efforts to
file any reports required to be filed by it under the Securities Act and the
Exchange Act and shall take such further action as the holders of Registrable
Securities may reasonably request, all to the extent required from time to
time
to enable such 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.
21
ARTICLE
3
MISCELLANEOUS
Section
3.01. Term. This
Agreement shall terminate upon earlier of (i) the tenth anniversary of the
date
of this Agreement or (ii) the date as of which (A) all of the Registrable
Securities have been sold pursuant to a Registration Statement (but in no event
prior to the applicable period referred to in Section 4(3) of the Securities
Act
and Rule 174 thereunder) or (B) the holders are permitted to sell their
Registrable Securities under Rule 144(k) under the Securities Act (or any
similar provision then in force permitting the sale of restricted securities
without limitation on the amount of securities sold or the manner of sale).
The
provisions of Section 2.09 and Section 2.10 shall survive any
termination.
Section
3.02. Notices. All
notices, other communications or documents provided for or permitted to be
given
hereunder, shall be made in writing and shall be given either personally by
hand-delivery, by facsimile transmission, by mailing the same in a sealed
envelope, registered first-class mail, postage prepaid, return receipt
requested, or by air courier guaranteeing overnight delivery:
(a) if
to the
Company to:
GSC
ACQUISITION COMPANY
000
Xxxxxx
Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Chief Executive Officer
Fax:
(000)
000-0000
with
a
copy to:
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxxxxxx, Esq.
Fax:
(000)
000-0000
(b) if
to an
Investor, to the address set forth below such Investor’s name on the signature
page hereto.
Each
holder, by written notice given to the Company in accordance with this Section
3.02, may change the address to which notices, other communications or documents
are to be sent to such holder. All notices, other communications or documents
shall be deemed to have been duly given: (i) at the time delivered by hand,
if
personally delivered; (ii) when receipt is acknowledged in writing by addressee,
if by facsimile transmission; (iii) five business days after having been
deposited in the mail, postage prepaid, if mailed by first class mail; or (iv)
on the
22
first
business day with respect to which a reputable air courier guarantees delivery;
provided, however, that notices of a change of address shall be
effective only upon receipt.
Section
3.03. Successors,
Assigns and Transferees.
(a) The
registration rights of any holder under this Agreement with respect to any
Registrable Securities may be transferred and assigned, provided,
however, that no such assignment shall be binding upon or obligate the
Company to any such assignee unless and until the Company shall have received
notice of such assignment as herein provided and a written agreement of the
assignee to be bound by the provisions of this Agreement. Any transfer or
assignment made other than as provided in the first sentence of this Section
3.03 shall be null and void.
(b) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and permitted assigns.
Section
3.04. Governing
Law; Service of Process; Consent to Jurisdiction. (a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN
THAT
STATE.
(b) To
the
fullest extent permitted by applicable law, each party hereto (i) agrees that
any claim, action or proceeding by such party seeking any relief whatsoever
arising out of, or in connection with, this Agreement or the transactions
contemplated hereby shall be brought only in the United States District Court
for the Southern District of New York and in any New York State court located
in
the Borough of Manhattan and not in any other State or Federal court in the
United States of America or any court in any other country, (ii) agrees to
submit to the exclusive jurisdiction of such courts located in the State of
New
York for purposes of all legal proceedings arising out of, or in connection
with, this Agreement or the transactions contemplated hereby and (iii)
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section
3.05. Headings. The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement.
Section
3.06. Severability. Whenever
possible, each provision or portion of any provision of this Agreement will
be
interpreted in such manner as to be effective and valid under applicable law
but
if any provision or portion of any
23
provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained
therein.
Section
3.07. Amendment;
Waiver.
(a) This
Agreement may not be amended or modified and waivers and consents to departures
from the provisions hereof may not be given, except by an instrument or
instruments in writing making specific reference to this Agreement and signed
by
the Company and the holders of a majority of Registrable Securities of each
class then outstanding. Each holder of any Registrable Securities at the time
or
thereafter outstanding shall be bound by any amendment, modification, waiver
or
consent authorized by this Section 3.07(a), whether or not such Registrable
Securities shall have been marked accordingly.
(b) The
waiver
by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or
as a
waiver of any other or subsequent breach. Except as otherwise expressly provided
herein, no failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in
respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Section
3.08. Counterparts. This
Agreement may be executed in any number of separate 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 together shall constitute one and
the
same agreement.
Section
3.09. Attorney-In-Fact. The
Investors hereby appoint and designate [INSERT NAME(S)], as their agent and
attorney-in-fact to take all actions (including any decisions on behalf of
the
holders) and to deliver all documents and certificates with respect to this
Agreement, including the making of any modifications or amendments hereto.
The
actions of either or both of the agents named in the previous sentence in doing
the foregoing are hereby affirmed, ratified, confirmed and approved in all
respects. This power of attorney shall be revocable on the delivery of written
notice of such revocation to the Company and [INSERT NAME(S)] or either of
them.
24
IN
WITNESS
WHEREOF, the parties hereto have caused this Registration Rights Agreement
to be
duly executed as of the date first written above.
GSC
ACQUISITION COMPANY
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By:
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Name: | |||
Title: | |||
GSC
SECONDARY INTEREST FUND, LLC
[Address]
Fax:
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By:
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||
Name: Xxxx Xxxxxxx | |||
Title: | |||
XXXXX
X. XXXXXXX
[Address]
Fax:
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|||
|
By:
|
||
Name: Xxxxx X. Xxxxxxx | |||
Title: | |||
XXXXXXX
X. XXXXXXXX
[Address]
Fax:
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|||
|
By:
|
||
Name: Xxxxxxx X. XxXxxxxx | |||
Title: | |||
XXXXXX
X. XXXXXXX
[Address]
Fax:
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|||
|
By:
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25
Name: Xxxxxx X. Xxxxxxx | |||
Title: | |||
26
Schedule
I
GSC
Secondary Interest Fund, LLC
Xxxxx
X.
Xxxxxxx
Xxxxxxx
X.
XxXxxxxx
Xxxxxx
X.
Xxxxxxx
27