Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
_________________, 2004, between CODE, XXXXXXXX & XXXXXXX III, L.P. a Delaware
limited partnership ("Code"), and BEACON ROOFING SUPPLY, INC., a Delaware
corporation (the "Company").
WHEREAS, Code is the owner of ________ shares of the Company's issued and
outstanding shares of common stock, par value $.01 per share ("Common Stock") at
the date hereof, and Code and the Company have determined to offer to the public
(the "Public Offering") up to ____________ shares of the Common Stock, in a
primary and secondary offering.
WHEREAS, following completion of the Public Offering, Code will own less
than 50% of the outstanding shares of Common Stock.
WHEREAS, the parties hereto desire to enter into this Agreement which sets
forth the terms of certain registration rights applicable to the Registrable
Securities (as defined below)
NOW, THEREFORE, upon the premises and the mutual promises herein contained,
and for good and valuable consideration, the receipt and adequacy of which are
acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following initially
capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any other person who,
directly or indirectly, is in control of, is controlled by or is under common
control with the former person.
(b) "Holder" means Code and any "transferee" (as such term is defined in
Section 11 hereof) which is the beneficial holder of Registrable Securities.
(c) "Registrable Securities" means the Common Stock (as presently
constituted), any stock or other securities into which or for which such Common
Stock may hereafter be changed, converted or exchanged, and any other securities
issued to holders of such Common Stock (or such shares into which or for which
such shares are so changed, converted or exchanged) upon any reclassification,
share combination, share subdivision, share dividend, merger, consolidation or
similar transactions or events, PROVIDED that any such securities shall cease to
be Registrable Securities (i) if 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 disposed of in accordance with the plan of
distribution set forth in such registration statement, (ii) such securities
shall have been distributed pursuant to Rule 144, or (iii) subsequent to the
seventh anniversary of the closing of the Public Offering (subject to the
specific extensions specified herein).
(d) "Registration Expenses" means the following reasonable expenses in
connection with any registration of securities pursuant to this Agreement: (i)
SEC filing fees; (ii) the fees, disbursements and expenses of the Company's
counsel(s) and accountants in connection with the registration of the
Registrable Securities to be disposed of under the
Securities Act; (iii) all expenses in connection with the preparation, printing
and filing of the registration statement, any preliminary prospectus or final
prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to any Holders, underwriters and dealers and all expenses
incidental to delivery of the Registrable Securities; (iv) the cost of producing
blue sky or legal investment memoranda; (v) all expenses in connection with the
qualification of the Registrable Securities to be disposed of for offering and
sale under state securities laws, including the fees and disbursements of
counsel for the underwriters or Holders in connection with such qualification
and in connection with any blue sky and legal investments memoranda; (vi) the
filing fees incident to securing any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Registrable
Securities to be disposed of; (vii) transfer agents', depositaries' and
registrars' fees and the fees of any other agent appointed in connection with
such offering; (viii) all security engraving and security printing expenses;
(ix) all fees and expenses payable in connection with the listing of the
Registrable Securities on each securities exchange or quotation system on which
a class of common equity securities of the Company is then listed; and (x) any
one time payment for directors and officers insurance directly related to such
offering, PROVIDED the insurer provides a separate statement for such payment.
(e) "Rule 144" means Rule 144 promulgated under the Securities Act, or
any successor rule to similar effect.
(f) "SEC" means the United States Securities and Exchange Commission.
(g) "Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
2. DEMAND REGISTRATION.
(a) At any time prior to the seventh anniversary of the closing date of
the Public Offering, upon written notice from a Holder in the manner set forth
in section 12(h) hereof requesting that the Company effect the registration
under the Securities Act of any or all of the Registrable Securities held by
such holder, which notice shall specify the intended method or methods of
disposition of such Registrable Securities, the Company shall use its best
efforts to effect, in the manner set forth in Section 5, the registration under
the Securities Act of such Registrable Securities for disposition in accordance
with the intended method or methods of disposition stated in such request,
PROVIDED that:
(i) if, within 5 business days of receipt of a registration
request pursuant to this Section 2 (a), the Company is advised in
writing (with a copy to the Holder requesting registration) by the
managing underwriter of the proposed offering described below that, in
such firm's good faith opinion, a registration at the time and on the
terms requested would materially and adversely affect any immediately
planned offering of securities by the Company that had been contemplated
by the Company prior to receipt of notice requesting registration
pursuant to this Section 2(a) (a "Transaction Blackout"), the Company
shall not be required to effect a registration pursuant to this Section
2(a)
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until the earliest of (A) the abandonment of such offering, (B) 90 days
after the completion of such offering, (C) the termination of any "hold
back" period obtained by the underwriter(s) of such offering from any
person in connection therewith or (D) 180 days after receipt by the
Holder requesting registration of the managing underwriter's written
opinion referred to above in this subsection (i));
(ii) if, while a registration request is pending pursuant to
this Section 2(a), the Company has determined in good faith that (A) the
filing of a registration statement would require the disclosure of
material information that the Company has a bona fide business purpose
for preserving as confidential or (B) the Company then is unable to
comply with SEC requirements applicable to the requested registration,
the Company shall not be required to effect a registration pursuant to
this Section 2(a) until the earlier of (1) the date upon which such
material information is otherwise disclosed to the public or ceases to
be material or the Company is able to so comply with applicable SEC
requirements, as the case may be, and (2) 45 days after the Company
makes such good-faith determination, PROVIDED that the Company shall not
be permitted to delay a requested registration in reliance on this
clause (ii) more than once in any 24 month period; and
(iii) the Company shall not be obligated to file a registration
statement relating to a registration request pursuant to this Section 2:
(A) within a period of 6 months after the effective date of any other
registration statement of the Company demanded pursuant to this Section
2(a); (B) if such registration request is for a number of Registrable
Securities less than 7.5% of the issued and outstanding common equity of
the Company (unless the Holders making the demand own 5% or more of the
issued and outstanding common equity of the Company in the aggregate and
the demand is for all their outstanding Registrable Securities) or (C)
if Holders in the aggregate own less than 5% of the issued and
outstanding common equity of the Company.
(b) Notwithstanding any other provision of this Agreement to the
contrary:
(i) a registration requested by a Holder pursuant to this
Section 2 shall not be deemed to have been effected (and, therefore, not
requested for purposes of subsection 2(a)) (A) unless the registration
statement filed in connection therewith has become effective, (B) if
after it has become effective such registration is interfered with by
any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result
thereof, 90% or more of the Registrable Securities requested to be
registered cannot be completely distributed in accordance with the plan
of distribution set forth in the related registration statement or (C)
if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration
are not satisfied (other than by reason of some acts or omission by such
Holder) or waived by the underwriters;
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(ii) a registration requested by a Holder pursuant to this
Section 2 and later withdrawn at the request of such Holder shall be
deemed to have been effected (and, therefore, requested for purposes of
Section 2 (a)), whether withdrawn by the Holder prior to or after the
effectiveness of such requested registration, except that if such
request is withdrawn by a Holder prior to the filing of a registration
statement with the SEC, such Holder can require the Company to disregard
for purposes of Section 2 (a) (iii) one such requested registration in
any six month period; and
(iii) nothing herein shall modify Holder's obligation to pay the
Registration Expenses incurred in connection with any withdrawn
registration.
(c) In the event that any registration pursuant to this Section 2 shall
involve, in whole or in part, an underwritten offering, a Holder shall have the
right to designate an underwriter reasonably satisfactory to the Company as the
lead managing underwriter of such underwritten offering and the Company shall
have the right to designate one underwriter reasonably satisfactory to the
Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of
additional securities for sale for the account of any person (including the
Company) in any registration of Registrable Securities requested by a Holder
pursuant to Section 2(a); PROVIDED that the Company shall not have the right to
cause the registration of such additional securities if such Holder is advised
in writing (with a copy to the Company) by the managing underwriter that, in
such firm's good faith opinion, registration of such additional securities would
materially and adversely affect the offering and sale of the Registrable
Securities then contemplated by such Holder, except that Code shall be required
to include shares of Xxxxxx Xxxx or Xxxxxx Xxxxx to the extent required by their
Executive Securities Agreements as in effect on the date hereof.
3. PIGGYBACK REGISTRATION. At any time prior to the seventh anniversary of
the closing of the Public Offering, if the Company at any time proposes to
register any of its Common Stock or any other of its common equity securities
(collectively, "Other Securities") under the Securities Act (other than a
registration on Form S-4 or S-8 or any successor form thereto), whether or not
for sale for its own account, in a manner which would permit registration of
Registrable Securities for sale for cash to the public under the Securities Act,
it will each such time give prompt written notice to each Holder of its
intention to do so at least 10 business days prior to the anticipated filing
date of the registration statement relating to such registration. Such notice
shall offer each such Holder the opportunity to include in such registration
statement such number of Registrable Securities as each such Holder may request.
Upon the written request of any such Holder made within 5 business days after
the receipt of the Company's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), the Company shall effect, in the manner set forth in
Section 5, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered, PROVIDED that:
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(a) if at any time after giving written notice of its intention to
register any securities and prior to the effective date of 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 the Holder and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration and
(B) in the case of a determination to delay such registration, the Company shall
be permitted to delay registration of any Registrable Securities requested to be
included in such registration for the same period as the delay in registering
such other securities.
(b) (i) if the registration referred to in the first sentence of this
Section 3 is to be an underwritten primary registration on behalf of the
Company, and the managing underwriter advises the Company in writing that, in
such firm's opinion, such offering would be materially and adversely affected by
the inclusion therein of the Registrable Securities requested to be included
therein, the Company shall include in such registration: (1) first, all
securities the Company proposes to sell for its own account ("Company
Securities"), (2) second, up to the full number of Registrable Securities held
by Code and requested to be included in such registration by Code ("Code
Securities") and securities requested to be registered by Xxxxxx Xxxx and Xxxxxx
Xxxxx ("Management Securities") pursuant to the terms of the Executive
Securities Agreement as in effect on the date hereof in excess of the number or
dollar amount of securities the Company proposes to sell, which, in the good
faith opinion of such managing underwriter, can be so sold without so materially
and adversely affecting such offering, (and, if less than the full number of
securities, allocated among Code, Buck and Logie in accordance with the terms of
the Executive Securities Agreements as in effect on the date hereof), (3) third,
up to the full number of Registrable Securities (other than Code Securities) in
excess of the number or dollar amount of Company Securities, Code Securities and
Management Securities, which, in the good faith opinion of such managing
underwriter, can be so sold without materially and adversely affecting such
offering (and, if less than the full number of such Registrable Securities,
allocated PRO RATA among the Holders of such Registrable Securities (other than
Code Securities) on the basis of the number of securities requested to be
included therein by each such Holder) and (4) fourth, an amount of other
securities, if any, requested to be included therein in excess of the number or
dollar amount of Company Securities, Code Securities, Management Securities and
other Registrable Securities which, in the opinion of such underwriter(s) can be
so sold without materially and adversely affecting such offering (allocated
among the holders of such other securities in such proportions as such holders
and the Company may agree); and (ii) if the registration referred to in the
first sentence of this Section 3 is to be an underwritten secondary registration
on behalf of holders of securities (other than Registrable Securities) of the
Company (the "Other Holders"), and the managing underwriter advises the Company
in writing that in their good-faith opinion such offering would be materially
and adversely affected by the inclusion therein of the Registrable Securities
requested to be included therein, the Company shall include in such registration
the amount of securities (including Registrable Securities) that such managing
underwriter advises allocated PRO RATA among the Other Holders and the Holders
on the basis of the number of securities (including Registrable Securities)
requested to be included therein by each Other Holder and each Holder, subject
to the rights of Xxxxxx Xxxxx and Xxxxxx Xxxx under their respective Executive
Securities Agreement in effect on the date hereof;
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(c) the Company shall not be required to effect any registration of
Registrable Securities under this section 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans; and
(d) no registration of Registrable Securities effected under this
Section 3 shall relieve the Company of its obligation to effect a registration
of Registrable Securities pursuant to Section 2 hereof.
4. EXPENSES. The Company shall pay all Registration Expenses with respect
to an offering by Code pursuant to Section 2 hereof. Each Holder (other than
Code), by accepting Registrable Securities, agrees to pay all Registration
Expenses with respect to an offering pursuant to Section 2 hereof, PRO RATA
based on the number of Registrable Securities included in such offering by each
Holder (excluding Code), except to the extent the Company causes shares to be
registered for itself or another party pursuant to Section 2(d), in which event
the Company or such other party shall pay the incremental expenses of including
such shares in the offering. The Company agrees to pay all Registration Expenses
with respect to an offering pursuant to Section 3 hereof, except for the
incremental expenses of including Registrable Securities of a Holder (other than
Code) in such offering, which incremental expenses shall be paid by such Holder.
All Registration Expenses to be paid by a Holder (other than Code) shall be paid
within 30 days of the delivery of a statement, such statements to be delivered
not more frequently than once every 60 days. In an underwritten offering, each
party hereto shall be responsible for underwriting discounts and commissions
with respect to shares held by such party.
5. REGISTRATION AND QUALIFICATION. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in section 2 or 3 hereof, the Company,
subject to Section 4 hereof, shall:
(a) prepare and file a registration statement under the Securities Act
relating to the Registrable Securities to be offered as soon as practicable, but
in no event later than 45 days (60 days if the applicable registration form is
other than Form S-3) after the date notice is given, and use its best efforts to
cause the same to become effective within 90 days after the date notice is given
(120 days if the applicable registration form is other than Form S-3);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for 60 days (or,
in the case of an underwritten offering, such shorter time period as the
underwriters may require);
(c) furnish to the Holders and to any underwriter of such Registrable
Securities such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as the Holders or such underwriter may reasonably request in order to
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facilitate the public sale of the Registrable Securities, and a copy of any and
all transmittal letters or other correspondence to, or received from, the SEC or
any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering;
(d) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Holders or any underwriter of such
Registrable Securities shall request, and use its best efforts to obtain all
appropriate registrations, permits and consents required in connection
therewith, and do any and all other acts and things which may be necessary or
advisable to enable the Holders or any such underwriter to consummate the
disposition in such jurisdictions of its Registrable securities covered by such
registration statement; PROVIDED that the Company shall not for any such purpose
be required to register or qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to subject
itself to taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to furnish an opinion of counsel for the
Company addressed to the underwriters and dated the date of the closing under
the underwriting agreement (if any), and (ii) use its best efforts to furnish a
"comfort" letter addressed to the underwriters, and signed by the independent
public accountants who have audited the Company's financial statements included
in such registration statement, in each such case covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to underwriters in underwritten public
offerings of securities;
(f) immediately notify each Holder of Registrable Securities included in
such registration (each a "Selling Holder") in writing (i) at any time when a
prospectus relating to a registration pursuant to Section 2 or 3 hereof is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) of any request by the SEC or any other regulatory body
or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Selling Holders, subject to
Section 4 hereof, prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading;
(g) use its best efforts to list all such Registrable Securities covered
by such registration on each securities exchange and quotation system on which a
class of common equity securities of the Company is then listed, with expenses
in connection therewith (not
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including any future periodic assessments or fees for such additional listing)
to be paid in accordance with Section 4 hereof; and
(h) furnish unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters with expenses therewith to be paid in
accordance with Section 4 hereof.
6. CONVERSION OF OTHER SECURITIES, ETC. If Code offers any options, rights,
warrants or other securities issued by it or any other person that are offered
with, convertible into or exercisable or exchangeable for any Registrable
Securities, the Registrable Securities underlying such options, rights, warrants
or other securities shall be eligible for registration pursuant to Section 2 and
Section 3 of this Agreement.
7. UNDERWRITING; DUE DILIGENCE.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section 8 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 5(e) hereof. The Selling Holders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement. Such underwriting agreement
shall also contain such representations and warranties by the Selling Holders on
whose behalf the Registrable Securities are to be distributed as are customarily
contained in underwriting agreements with respect to secondary distributions.
Selling Holders may require that any additional securities included in an
offering proposed by a Holder be included on the same terms and conditions as
the Registrable Securities that are included therein.
(b) In the event that any registration pursuant to Section 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
the Registrable Securities requested to be registered pursuant to Section 3 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters under such
registration. If requested by the underwriters for such underwritten offering,
the Selling Holders on whose behalf the Registrable Securities are to be
distributed shall enter into an underwriting agreement with such underwriters,
such agreement to contain such representations and warranties by the Selling
Holders and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution substantially to the effect and
to the extent provided in Section 8 hereof. Such underwriting agreement shall
also contain such representations and warranties by the Company and such other
person or entity for whose account securities are being sold in such offering as
are customarily contained in underwriting agreements with respect to secondary
distributions.
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(c) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Company shall give the Holders of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such Holder and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities made pursuant
to this Agreement, the Company agrees to indemnify and hold harmless each
Holder, its officers and directors, each underwriter of Registrable Securities
so offered and each person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act, from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for any
reasonable legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
in any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company shall not be liable to a particular Holder in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance upon
and in conformity with information relating to such Holder furnished to the
Company in writing by or on behalf of such Holder specifically for use in the
preparation of the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, its officers and
directors, underwriters of the Registrable Securities or any controlling person
of the foregoing; PROVIDED FURTHER, that, as to any underwriter or any person
controlling any underwriter, this indemnity does not apply to any loss,
liability, claim, damage or expense arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(b) In the case of each offering made pursuant to this Agreement, each
Holder of Registrable Securities included in such offering, by exercising its
registration rights
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hereunder, agrees to indemnify and hold harmless the Company, its officers and
directors and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act (and if requested by the underwriters, each
underwriter who participates in the offering and each person, if any, who
controls any such underwriter within the meaning of the Securities Act), from
and against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become subject,
under the Securities Act or otherwise, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement of a
material fact is contained in, or such material fact is omitted from,
information relating to such Holder furnished in writing to the Company by or on
behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability which such
Holder may otherwise have to the Company, or any of its directors, officers or
controlling persons; PROVIDED, HOWEVER, that, as to any underwriter or any
person controlling any underwriter, this indemnity does not apply to any loss,
liability, claim, damage or expense arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(c) Each party indemnified under paragraph (a) or (b) of this Section 8
shall, promptly after receipt of notice of any claim or the commencement of any
action against such indemnified party in respect of which indemnity may be
sought, notify the indemnifying party in writing of the claim or the
commencement thereof; PROVIDED that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party on account of the indemnity agreement contained in paragraph (a) or (b) of
this Section 8, except to the extent the indemnifying party was prejudiced by
such failure, and in no event shall relieve the indemnifying party from any
other liability which it may have to such indemnified party. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED that each
indemnified party, its officers and directors, if any, and each person, if any,
who controls such indemnified party within the meaning of the Securities Act,
shall have the right to employ separate counsel reasonably approved by the
indemnifying party to
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represent them if the named parties to any action (including any impleaded
parties) include both such indemnified party and an indemnifying party or an
affiliate of an indemnifying party, and such indemnified party shall have been
advised by counsel either (i) that there may be one or more legal defenses
available to such indemnified party that are different from or additional to
those available to such indemnifying party or such affiliate or (ii) a conflict
may exist between such indemnified party and such indemnifying party or such
affiliate, and in that event the fees and expenses of one such separate counsel
for all such indemnified parties shall be paid by the indemnifying party. An
indemnified party will not enter into any settlement agreement which is not
approved by the indemnifying party, such approval not to be unreasonably
withheld. The indemnifying party may not agree to any settlement of any such
claim or action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof with counsel reasonably satisfactory to
the indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or its
counsel in the defense of each claim or action.
If the indemnification provided for in this Section 8 shall for any reason
be unavailable to an indemnified party in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to herein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not by
reference to any indemnified party's stock ownership in the Company. In no
event, however, shall a Holder be required to contribute in excess of the amount
of the net proceeds received by such Holder in connection with the sale of
Registrable Securities in the offering which is the subject of such loss, claim,
damage or liability. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this paragraph shall be deemed to include, for purposes of
this paragraph, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. 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.
9. RULE 144. The Company shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 (or any successor provision.)
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10. HOLDBACK.
(a) Each Holder agrees by acquisition of Registrable Securities, if so
required by the managing underwriter, not to sell, make any short sale of, loan,
grant any option for the purchase of, effect any public sale or distribution of
or otherwise dispose of any securities of the Company, during the 30 days prior
to and the 90 days after any underwritten registration pursuant to Section 2 or
3 hereof has become effective (or such shorter period as may be required by the
underwriter) except as part of such underwritten registration. Notwithstanding
the foregoing sentence, each Holder subject to the foregoing sentence shall be
entitled to sell during the foregoing period securities in a private sale. The
Company may legend and may impose stop transfer instructions on any certificate
evidencing Registrable Securities relating to the restrictions provided for in
this Section 10.
(b) The Company agrees, if so required by the managing underwriter, not
to sell, make any short sale of, loan, grant any option for the purchase of
(other than pursuant to employee benefit plans) effect any public sale or
distribution of or otherwise dispose of its equity securities or securities
convertible into or exchangeable or exercisable for any such securities during
the 30 days prior to and the 90 days after any underwritten registration
pursuant to Section 2 or 3 hereof has become effective, except as part of such
underwritten registration and except pursuant to registrations on Form X-0, X-0
or any successor or similar forms thereto.
11. TRANSFER OF REGISTRATION RIGHTS.
(a) Code may transfer all or any portion of its rights under this
Agreement to any transferee of the lesser of (i) at least 20% of Code's initial
holdings of Registrable Securities and (ii) all of Code's remaining Registrable
Securities (each, a "transferee"). No transfer of registration rights pursuant
to this Section shall be effective unless the Company has received written
notice from Code of an intention to transfer such registration rights at least
15 days prior to the transfer thereof. Such notice, if sent prior to the date of
transfer of the underlying Registrable Securities, need not contain the name a
proposed transferee. On or before the later of (i) the transfer of the
registration rights or (ii) the transfer of the underlying Registrable
Securities, the Company shall receive a written notice stating (to the extent
not included in the notice of transfer of registration rights) the name and
address of any transferee of the registration rights and identifying the amount
of Registrable Securities with respect to which the rights under this Agreement
are being transferred and the nature of the rights so transferred. In connection
with any such transfer, the term "Code" as used in this Agreement (other than in
this Section 11, Section 3(b) (i) (2), Section 4 and Section 1(c) (iii)) shall,
where appropriate to assign the rights and obligations of Code hereunder to such
direct transferee, be deemed to refer to the transferee holder of such
Registrable Securities. Code and such transferees may exercise the registration
rights hereunder in such proportion and upon the demand of such Holder as they
shall agree among themselves, PROVIDED that in no event shall the Company be
required to effect more than one registration pursuant to Section 2 of this
Agreement in any 6 month period and that each such registration shall be at the
request of not more than one Holder.
(b) After any such transfer, Code shall retain its rights under this
Agreement with respect to all other Registrable Securities owned by Code.
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(c) Upon the request of Code, the Company shall execute a Registration
Rights Agreement with such transferee or a proposed transferee substantially
similar to this Agreement, and any demand registrations granted to such
transferee shall limit the demand registrations to which Code is entitled under
Section 2(a) hereof.
12. MISCELLANEOUS.
(a) INJUNCTIONS. Each party acknowledges and agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
Therefore, each party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court having jurisdiction, such remedy
being in addition to any other remedy to which such party may be entitled at law
or in equity.
(b) SEVERABILITY. If any term or provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term or provision.
(c) FURTHER ASSURANCES. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) WAIVERS. ETC. No failure or delay on the part of either party (or
the intended third-party beneficiaries referred to herein) in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor consent to any
departure therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of each of the parties, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(e) ENTIRE AGREEMENT. This Agreement contains the final and complete
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties, whether
written or oral, with respect to the subject matter hereof. The paragraph
headings contained in this Agreement are for reference purposes only, and shall
not affect in any manner the meaning or interpretation of this Agreement.
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(f) COUNTERPARTS. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
(g) AMENDMENT. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) NOTICES. Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed to be duly given (i) when personally delivered or
(ii) if mailed registered or certified mail, postage prepaid, return receipt
requested , on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
upon the signed receipt of the addressee, on the date the receipt acknowledgment
is executed or refused by the addressee or its agent:
(i) if to Code, to
Code, Xxxxxxxx & Xxxxxxx III, L.P.
c/o Code Xxxxxxxx & Xxxxxxx, LLC
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
(ii) if to the Company, to
Beacon Roofing Supply, Inc.
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
(iii) if to a Holder of Registrable Securities, to the name
and address as the same appear in the security transfer
books of the Company or such other address as either
party (or other Holders of Registrable Securities) may,
from time to time, designate in a written notice in a
like manner.
(i) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS.
(j) ASSIGNMENT. Except as provided herein, the parties may not assign
their rights under this Agreement. The Company may not delegate its obligations
under this Agreement.
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IN WITNESS WHEREOF, Code and the Company have caused this Agreement to be
duly executed by their authorized representative as of the date first above
written.
CODE, XXXXXXXXX & XXXXXXX III, L.P.
By
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BEACON ROOFING SUPPLY, INC.
By
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