REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
This
REGISTRATION RIGHTS AGREEMENT is entered into as of this 16th day of March, 2010 by
and among Care Investment Trust Inc., a Maryland real estate investment trust (the “Company”) and
Tiptree Financial Partners, LP, a Delaware limited partnership (the “Purchaser”). Notwithstanding
anything to the contrary contained herein, no provisions of this Agreement shall become effective
until the transactions contemplated by the Purchase Agreement (as defined below) have been
consummated.
WHEREAS, the Company and the Purchaser are parties to a Purchase and Sale Agreement, dated as
of March 16, 2010 (the “Purchase Agreement”), pursuant to which the Company agreed to issue in a
private placement to the Purchaser, and the Purchaser agreed to purchase, a number of shares of
Common Stock set forth in the Purchase Agreement (the “Shares”); and
WHEREAS, the Company and the Purchaser desire to enter into this Agreement to provide the
Purchaser and certain of its permitted transferees with certain registration rights described
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Purchase Agreement. The following capitalized terms
used herein have the following meanings:
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under common control with such
Person.
“Agreement” means this Registration Rights Agreement, as amended, restated, supplemented, or
otherwise modified from time to time.
“Blue Sky Filings” is defined in Section 5.1.5.
“Board” means the board of directors of the Company.
“Business Day” means any day, other than a Saturday or Sunday or a day on which commercial
banks in New York, New York are authorized or required by law to close.
“Common Stock” means the Company’s shares of common stock, par value $0.001 per share,
together with any class of shares of capital stock of the Company or shares of capital stock of a
successor to the entire business of the Company which may be issued in exchange for such Common
Stock.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.2.1.
“Eligible Market” means The NASDAQ Capital Market, The NASDAQ Global Market, The NASDAQ Global
Select Market, The New York Stock Exchange or The NYSE Amex Equities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder, all as the same shall be in effect at the time.
“Holder” means (a) the Purchaser or any Affiliate of the Purchaser, in its capacity as a
holder of record of Registrable Securities (including upon the direct or indirect transfer of
Registrable Securities from the Purchaser or any subsequent Holder) and (b) any direct or indirect
transferee of Registrable Securities issued to the Purchaser or any such Affiliate. For purposes
of this Agreement, the Company may deem and treat the registered holder of Registrable Securities
as the Holder and absolute owner thereof, unless notified to the contrary in writing by the
registered Holder thereof.
“Indemnified Party” is defined in Section 6.3.
“Indemnifying Party” is defined in Section 6.3.
“Inspectors” is defined in Section 5.1.8.
“Long-Form Demand Registration” is defined in Section 2.1.2.
“Losses” is defined in Section 6.1.
“Majority-in-Interest” means Holders of more than 50% of the Registrable Securities.
“Maximum Threshold” is defined in Section 2.4.
“Person” means an individual or a real estate investment trust, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization, association (including any
group, organization, co-tenancy, plan, board, council or committee), government (including a
country, state, county, or any other governmental or political subdivision, agency or
instrumentality thereof) or other entity (or series thereof).
“Piggy-Back Registration” is defined in Section 3.1.
“Pro Rata Adjusted” is defined in Section 2.4.
“Prospectus” means the prospectus or prospectuses included in any Registration Statement
(including without limitation, any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) and any prospectus subject to completion and a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act and any term sheet
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filed pursuant to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments and supplements to
the prospectus, including post-effective amendments and all material incorporated by reference or
deemed to be incorporated by reference in such prospectus or prospectuses.
“Purchase Agreement” is defined in the recitals to this Agreement.
“Purchaser” is defined in the preamble to this Agreement.
“Records” is defined in Section 5.1.8.
“Registration” means a registration effected by preparing and filing a registration statement
or similar document in compliance with the requirements of the Securities Act, and such
registration statement becoming effective.
“Registrable Securities” means at any time the Shares and any additional shares of Common
Stock acquired by the Purchaser or any of its Affiliates, together with any class of shares of
capital stock of the Company or shares of capital stock of a successor to the entire business of
the Company which may be issued in exchange for any such shares or as payment of any dividend on
any such shares. As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities on the earliest to occur of: (a) the date on which a Registration Statement
with respect to the sale of such securities shall have become effective under the Securities Act
and such securities shall have been sold, transferred, disposed of or exchanged in accordance with
such Registration Statement; (b) the date on which such securities shall have ceased to be
outstanding; (c) the date on which the Registrable Securities have been sold and all transfer
restrictions and restrictive legends with respect to such Registrable Securities are removed upon
the consummation of such sale; and (d) the date on which such securities shall have been assigned,
sold, disposed of or otherwise transferred to any Person that is not and does not become a Holder
upon receipt of such securities. Notwithstanding the foregoing, shares of Common Stock of a Holder
shall not be deemed to be Registrable Securities hereunder if, in the opinion of counsel for the
Company, all of such shares may be sold pursuant to Rule 144 (or any successor provision) under the
Securities Act without volume limitations at the time when a Holder seeks to exercise such Holder’s
rights for Registration hereunder.
“Registration Expenses” is defined in Section 5.3.
“Registration Statement” means any registration statement filed by the Company with the SEC in
compliance with the Securities Act for a public offering and sale of shares of Common Stock or
other securities of the Company, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and all materials
incorporated by reference or deemed to be incorporated by reference in such Registration Statement
(other than a registration statement on Form S-4 or Form S-8, or their successors).
“Resale Registration Statement” is defined in Section 2.3.
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“SEC” means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder, all as the same shall be in effect at the time.
“Shares” is defined in the recitals to this Agreement.
“Short-Form Demand Registration” is defined in Section 2.2.1.
“underwritten offering” means a Registration in which securities of the Company are sold to
one or more underwriters for reoffering to the public.
“Withdrawn Request” is defined in Section 2.7.
“Withdrawn Demand Registration” is defined in Section 2.7.
2. Registration Rights.
2.1 Long-Form Registrations.
2.1.1 Subject to the terms of this Agreement, at any time and from time to time, Holders
representing a Majority-In-Interest of the Registrable Securities may request registration under
the Securities Act on Form S-11 or any similar or other applicable long-form Registration Statement
for the offering of all or any portion of their Registrable Securities.
2.1.2 Within ten (10) days after receipt of any written request pursuant to Section 2.1.1, the
Company will give written notice of such request to all other Holders of Registrable Securities and
will use commercially reasonable efforts to include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion within ten (10) days
after delivery of the Company’s notice, and, thereupon the Company will use its commercially
reasonable efforts to effect, at the earliest possible date, the registration under the Securities
Act. All registrations requested pursuant to Section 2.1.1 are referred to herein as “Long-Form
Demand Registrations.”
2.1.3 Notwithstanding the foregoing provisions of this Section 2.1, the Company shall not be
obligated to effect more than three (3) Long-Form Demand Registrations for all Holders in the
aggregate pursuant to Section 2.1.1.
2.2 Short-Form Registrations.
2.2.1 In addition to the Long-Form Demand Registrations provided pursuant to Section 2.1
above, commencing on the date on which the Company becomes eligible to register securities issued
by it on an appropriate form for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act or any successor thereof (“Short-Form Demand Registrations”
and, together with the Long-Form Demand Registrations, “Demand Registrations”), each Holder will be
entitled to request registrations under the Securities Act of all or part of its Registrable
Securities; provided, that with respect to
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any requests under this Section 2.2.1, the anticipated aggregate offering amount of the
Registrable Securities covered by a Short-Form Demand Registration shall exceed $1,000,000 (net of
underwriting discounts and commissions).
2.2.2 Within ten (10) days after receipt of any request pursuant to Section 2.2.1, the Company
will give written notice of such request to all other holders of Registrable Securities and will
use commercially reasonable efforts to include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion within ten (10) days after
delivery of the Company’s notice. The Company will use its commercially reasonable efforts to make
Short-Form Demand Registrations available for the sale of Registrable Securities. Demand
Registrations will be Short-Form Demand Registrations whenever the Company is permitted to use any
applicable short form. If for marketing or other reasons, any underwriters with respect to any
Short-Form Demand Registration request the inclusion in the Registration Statement of information
that is not required under the Securities Act to be included in a Registration Statement on the
applicable form for the Short-Form Demand Registration, the Company will provide such information
as may be reasonably requested for inclusion by such underwriters in the applicable Registration
Statement.
2.2.3 The Company shall prepare and file such additional Registration Statements as necessary
to maintain continuously effective Resale Registration Statements (as defined below) in connection
with Short-Form Demand Registrations, and use its commercially reasonable efforts to cause any such
Registration Statement to be declared effective by the SEC (if it is not an automatic shelf
registration statement) so that a Resale Registration Statement remains continuously effective,
subject to Section 2.6, with respect to resales of Registrable Securities registered pursuant to a
Short-Form Demand Registration as and for the periods required hereunder, each such subsequent
Registration Statement to constitute a Resale Registration Statement hereunder.
2.3 Additional Securities. The Company may not include in the Registration Statement
relating to any Demand Registrations (the “Resale Registration Statement”) additional securities of
the class of Registrable Securities to be registered thereunder, including securities to be sold
for the Company’s own account or the account of Persons who are not Holders of Registrable
Securities, unless Holders representing a Majority-in-Interest of the Registrable Securities to be
included in such Resale Registration Statement approve such inclusion in writing.
2.4 Underwritten Offering; Reduction of Offering. Holders representing a
Majority-in-Interest of the Registrable Securities shall have the right to request that a Demand
Registration be effected as an underwritten offering at any time, subject to this Section 2. All
Holders proposing to participate in such underwriting shall (a) enter into an underwriting
agreement in reasonable and customary form with the underwriter(s) selected for such underwriting
by Holders representing a Majority-in-Interest of the Registrable Securities, which underwriter(s)
shall be reasonably acceptable to the Company; provided that with respect to such underwriting
agreement or any other documents reasonably required under such agreement, (i) no Holder shall be
required to make any representation or warranty with respect to or on behalf of the Company or any
other stockholder of the Company and (ii) the liability of any Holder
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shall be limited as provided in Section 6.2 hereof, and (b) complete and execute all
questionnaires, powers-of-attorney, indemnities, opinions and other documents reasonably required
under the terms of such underwriting agreement. Notwithstanding the foregoing, in no event shall
the Company be obligated to effect more than one underwritten offering hereunder in any single
six-month period. If the managing underwriter(s) for an underwritten offering advise(s) the
Company and the Holders in writing that the dollar amount or number of Registrable Securities which
the Holders desire to sell, taken together with all other shares of Common Stock or other
securities which the Company desires to sell and the shares of Common Stock or other securities, if
any, as to which registration has been requested pursuant to written contractual piggy-back
registration rights held by other stockholders of the Company who desire to sell or otherwise,
exceeds the maximum dollar amount or maximum number of securities that can be sold in such offering
without adversely affecting the proposed offering price, the timing, the distribution method, or
the probability of success of such offering (such maximum dollar amount or maximum number of
securities, as applicable, the “Maximum Threshold”), then the Company shall include in such
registration (subject to the provisions of Section 2.3): (w) first, the Registrable
Securities of Holders (pro rata in accordance with the number of Registrable Securities which such
Holders have requested be included in such underwritten offering, regardless of the number of
Registrable Securities or other securities held by each such Person (such proportion is referred to
herein as “Pro Rata Adjusted”) that can be sold without exceeding the Maximum Threshold; (x)
second, to the extent that the Maximum Threshold has not been reached under the foregoing
clause (w) the shares of Common Stock or other securities that the Company desires to sell that can
be sold without exceeding the Maximum Threshold; (y) third, to the extent that the Maximum
Threshold has not been reached under the foregoing clauses (w) and (x) the shares of Common Stock
or other 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 Threshold; and (z) fourth, to the extent that the Maximum Threshold
has not been reached under the foregoing clauses (w), (x) and (y) the shares of Common Stock that
other stockholders desire to sell that can be sold without exceeding the Maximum Threshold to the
extent that the Company, in its sole discretion, wishes to permit such sales pursuant to this
clause (z). For the avoidance of doubt, any inclusion of additional shares of Common Stock or
securities in any such Demand Registration shall be subject to Section 2.3. In the event the
Company shall not, by virtue of this Section 2.4, include in any Demand Registration all of the
Registrable Securities of any Holder requesting to be included in such Demand Registration, such
Holder may, upon written notice to the Company given within five (5) days of the time such Holder
first is notified of such matter, further reduce the amount of Registrable Securities it desires to
have included in such Demand Registration, whereupon only the Registrable Securities, if any, it
desires to have included will be so included and the Holders not so reducing shall be entitled to a
corresponding pro rata increase in the amount of Registrable Securities to be included in such
Demand Registration.
2.5 Inclusion in Resale Registration Statement. The Company shall give written notice
to all Holders at least 10 days prior to the anticipated filing date of the Resale Registration
Statement, which notice may include a questionnaire seeking information from the Holders deemed
necessary or advisable by the Company or its counsel in order to file the Resale Registration
Statement. At the time the Resale Registration Statement is declared effective (or becomes
effective, if the Resale Registration Statement is an automatic shelf registration statement), each
Holder that has delivered to the Company a duly completed and executed
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questionnaire on or prior to the date which is ten days prior to such time of effectiveness
shall be named as a selling stockholder in the Resale Registration Statement and the related
Prospectus in such a manner as to permit such Holder, if so required, to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law. Subject to the terms and
conditions hereof, after effectiveness of the Resale Registration Statement, the Company shall file
a supplement to such Prospectus or amendment to the Resale Registration Statement upon request of
any Holder as necessary to name as selling stockholders therein any Holders that provide to the
Company duly completed and executed questionnaires and shall use commercially reasonable efforts to
cause any post-effective amendment to such Resale Shelf Registration Statement filed for such
purpose to be declared effective (if it is not an automatic shelf registration statement) by the
SEC as promptly as reasonably practicable after the filing thereof.
2.6 Suspension of Use of Registration Statement. Upon prior written notice to the
Holders, the Company may suspend the use of a Resale Registration Statement pursuant to this
Section 2 on up to two occasions during any period of twelve consecutive months for a reasonable
time specified in the notice but not exceeding 60 days in the aggregate during any such twelve
month period (which period may not be extended or renewed), if (a) the Board determines in good
faith that permitting sales under such Resale Registration Statement would materially and adversely
affect an offering of securities of the Company; or (b) the Company is in possession of material
non-public information and the Board determines in good faith that the disclosure of such
information during the period specified in such notice would not be in the best interests of the
Company.
2.7 Withdrawal. A Long-Form Demand Registration may be withdrawn prior to the filing
of the Registration Statement by the Holders representing a Majority-In-Interest of the Registrable
Securities to be included therein (a “Withdrawn Request”) and a Registration Statement filed in
connection with a Long-Form Demand Registration may be withdrawn prior to the effectiveness thereof
by a Majority-In-Interest of the Registrable Securities included therein (a “Withdrawn Demand
Registration”), but such Long-Form Demand Registration subject to a Withdrawal Request or a
Withdrawn Demand Registration shall be treated as a Demand Registration which shall have been
effected pursuant to Section 2.1, unless the Holders of Registrable Securities to be included in
such Registration Statement reimburse the Company for its reasonable out-of-pocket Registration
Expenses relating to the preparation and filing of such Registration Statement (to the extent
actually incurred), in which case such Long-Form Demand Registration subject to a Withdrawal
Request or a Withdrawn Demand Registration shall not be treated as a Demand Registration effected
pursuant to this Section 2 (and shall not be counted toward the number of Demand Registrations
permitted hereunder); provided, however, that if a Withdrawn Request or Withdrawn
Demand Registration is made (A) because of a Company Material Adverse Effect (as defined in the
Purchase Agreement), or (B) because the sole or lead managing underwriter advises that the amount
of Registrable Securities to be sold in such offering be reduced pursuant to Section 2.4 by more
than 10% of the Registrable Securities included or to be included in such Registration Statement,
then such Long-Form Demand Registration subject to a Withdrawal Request or a Withdrawn Demand
Registration shall not be treated as a Demand Registration effected pursuant to this Section 2 (and
shall not be counted toward the number of Demand Registrations permitted hereunder), and the
Company shall pay all Registration Expenses (as defined below) in connection therewith. Any Holder
requesting inclusion in a Long-Form Demand Registration may, at any time prior to the effective
date of the
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Registration Statement (and for any reason) revoke such request by delivering written notice
to the Company revoking such requested inclusion.
2.8 Other Registrations. During the period (i) beginning on the date of a request for
a Demand Registration and (ii) ending on the date that is ninety (90) days after the date that a
Demand Registration Statement filed pursuant to such request has been declared effective by the SEC
or, if the Holders shall withdraw such request or such Demand Registration Statement, on the date
of such Withdrawn Request or such Withdrawn Demand Registration, the Company shall not, without the
consent of the Holders representing a Majority Holders of the Registrable Securities, file a
registration statement pertaining to any other securities of the Company.
3. Piggy-Back Registration.
3.1 Piggy-Back Rights. If at any time or from time to time the Company proposes to
file a Registration Statement under the Securities Act with respect to an offering of equity
securities by the Company for its own account or for stockholders of the Company for their account
and the registration form to be used may be used for any registration of Registrable Securities,
then the Company shall (a) give written notice of such proposed filing and offering to the Holders
of Registrable Securities as soon as practicable but in no event less than ten (10) days before the
anticipated filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name of the proposed
managing underwriter(s), if any, of the offering, and (b) offer to the Holders of Registrable
Securities in such notice the opportunity to register the sale of such number of Registrable
Securities as such Holders may request in writing within five (5) days following receipt of such
notice (a “Piggy-Back Registration”). If at any time after giving written notice of its intention
to register any securities and prior to the effective date of the 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. The Company shall cause such Registrable Securities to be
included in such registration and shall use its commercially reasonable efforts to cause the
managing underwriter(s) of a proposed underwritten offering to permit the Registrable Securities
requested to be included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof. All Holders of
Registrable Securities proposing to distribute their securities through a Piggy-Back Registration
that involves an underwriter(s) shall enter into an underwriting agreement in reasonable and
customary form with the underwriter(s) selected for such Piggy-Back Registration; provided that
with respect to such underwriting agreement or any other documents reasonably required under such
agreement, (i) no Holder shall be required to make any representation or warranty with respect to
or on behalf of the Company or any other stockholder of the Company and (ii) the liability of any
Holder shall be limited as provided in Section 6.2 hereof and (ii) complete and execute all
questionnaires, powers-of-attorney, indemnities,
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opinions and other documents reasonably required under the terms of such underwriting
agreement. No registration effected under this Section 3 shall relieve the Company of its
obligations to effect a Demand Registration required by Section 2.
3.2 Reduction of Offering. If the managing underwriter(s) for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the Holders of
Registrable Securities that in their opinion the dollar amount or number of shares of Common Stock
or other securities which the Company desires to sell, taken together with shares of Common Stock
or other securities, if any, as to which registration has been demanded pursuant to written
contractual arrangements with third parties, the Registrable Securities as to which registration
has been requested under this Section 3, and the shares of Common Stock or other securities, if
any, as to which registration has been requested pursuant to the written contractual piggy-back
registration rights of other stockholders of the Company, exceeds the Maximum Threshold, then the
Company shall include in any such registration:
(a) If the registration is undertaken for the Company’s account: (i) first, the shares
of Common Stock or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Threshold; and (ii) second, to the extent that the Maximum Threshold
has not been reached under the foregoing clause (i), the Registrable Securities and the shares of
Common Stock or other securities proposed to be sold for the account of other Persons that the
Company is obligated to register pursuant to written contractual piggy-back registration rights
with such Persons and that can be sold without exceeding the Maximum Threshold (pro rata in
accordance with the number of Registrable Securities and shares of Common Stock or other securities
which such Holders and other Persons have requested be included in such underwritten offering,
regardless of the number of Registrable Securities and shares of Common Stock or other securities
held by each such Holder or other Person); and
(b) If the registration is a “demand” registration undertaken at the demand of one or more
Persons other than the Company and any Holder, (i) first, the shares of Common Stock or
other securities for the account of such demanding Persons that can be sold without exceeding the
Maximum Threshold; (ii) second, to the extent that the Maximum Threshold has not been
reached under the foregoing clause (i), Registrable Securities and the shares of Common Stock or
other securities proposed to be sold for the account of other Persons that the Company is obligated
to register pursuant to written contractual piggy-back registration rights with such Persons and
that can be sold without exceeding the Maximum Threshold (pro rata in accordance with the number of
Registrable Securities and shares of Common Stock or other securities which such Holders and other
Persons have requested be included in such underwritten offering, regardless of the number of
Registrable Securities and shares of Common Stock or other securities held by each such Holder or
other Person); and (iii) third, to the extent that the Maximum Threshold has not been
reached under the foregoing clauses (i) and (ii), shares of Common Stock or other securities that
the Company desires to sell that can be sold without exceeding the Maximum Threshold.
3.3 Withdrawal. Any Holder of Registrable Securities may elect to withdraw such
Holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of
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the Registration Statement or filing of a Prospectus naming such Holder as a selling
stockholder, as applicable. The Company (whether on its own determination or as the result of a
withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw a
Registration Statement filed or to be filed pursuant to this Section 3 at any time prior to the
effectiveness of the Registration Statement without thereby incurring any liability to the Holders
of Registrable Securities. Notwithstanding any such withdrawal, the Company shall pay the expenses
incurred by the Holders of Registrable Securities in connection with such Piggy-Back Registration
as provided in Section 5.3.
4. Restrictions on Public Sale by the Company.
The Company agrees not to effect any public sale or distribution (other than, in the case of
the Company, in connection with (a) any merger, acquisition or similar transaction that involves
the public offering of securities or (b) public sales or distributions solely by and for the
account of the Company of securities issued pursuant to any employee benefit or similar plan,
including equity incentive plans or upon exercise or conversion by the holders thereof of other
derivative securities issued by the Company that are then outstanding), of any securities during
the period commencing on the date the Company receives a request for an underwritten offering from
any Holder and continuing until 90 days after the consummation of the underwritten offering (or for
such shorter period as the lead underwriter(s) shall request after consultation with Holders of a
Majority-in-Interest of the Registrable Securities) unless earlier terminated by the lead
underwriter(s) in such underwritten offering.
5. Registration Procedures.
5.1 Filings. In connection with the filing of any Registration Statement as provided
in this Agreement, the paragraphs below shall be applicable:
5.1.1 Filing of Registration Statement. The Company shall (a) prepare and file with
the SEC a Registration Statement on any form for which the Company then qualifies or which counsel
for the Company shall deem appropriate and which form shall be available for the sale of all
Registrable Securities to be registered thereunder in accordance with the intended method(s) of
distribution thereof, which shall comply as to form with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith, (b) file the
applicable Registration Statement as soon as practicable, but in no event later than thirty (30)
days following the request for any Demand Registration, and use its commercially reasonable efforts
to cause such Registration Statement to be declared (if it is not an automatic shelf registration
statement) and remain effective for the period required by Section 5.1.3, (c) not take any action
that would cause a Registration Statement to contain a material misstatement or omission or to be
not effective and usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable, (d) use its commercially reasonable
efforts to cause each Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration Statement, amendment or
supplement to comply in all material respects with any requirements of the Securities Act and the
rules and regulations of the SEC and (e) cause such Registration Statement and the related
Prospectus and any amendment or supplement thereto not to contain any untrue statement of a
material fact required to be stated therein or necessary to
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make the statements therein not misleading during the period that such Registration Statement
is required to be effective and usable.
5.1.2 Copies. The Company shall, upon request, prior to filing a Registration
Statement or Prospectus in respect of Registrable Securities, or any amendment or supplement
thereto, furnish without charge to the Holders of Registrable Securities included in such
registration, any underwriter and such Holders’ or underwriter’s legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each preliminary
Prospectus) and such other documents as the Holders of Registrable Securities included in such
Registration, underwriter or legal counsel for any such Holders or underwriter may reasonably
request. Following the filing of such Registration Statement, the Company shall furnish to the
Holders of Registrable Securities included in such registration (in each case in an electronic
format, unless otherwise required by applicable law), without charge, such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and such other documents as the
Holders of Registrable Securities included in such Registration, underwriter or legal counsel for
any such Holders or underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Holders. Each Holder of Registrable Securities included
in the Registration Statement shall have the right to request in writing that the Company modify
any information contained in such Registration Statement, amendment and supplement thereto
pertaining solely to such Holder or which such counsel to Holder may reasonably request in order to
ensure that the Registration Statement complies with the Securities Act and the rules and
regulations promulgated thereunder and the Company shall use its commercially reasonable efforts to
comply with such request; provided, however, that the Company shall not have any
obligation to so modify any information if the Company reasonably expects that so doing would cause
the Prospectus to contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading.
5.1.3 Amendments and Supplements. The Company shall prepare and file with the SEC
such amendments, including post-effective amendments, and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of the Securities Act until
all Registrable Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement or such securities have otherwise ceased to be Registrable Securities.
5.1.4 Notification. After the filing of a Registration Statement, the Company shall
promptly notify the Holders of Registrable Securities included in such Registration Statement of
such filing, and shall further promptly notify such Holders of the occurrence, of any of the
following and, if requested by any Holder, confirm such advice in writing: (a) when such
Registration Statement becomes effective; (b) when any post-effective amendment to such
Registration Statement becomes effective; (c) the issuance by the SEC of any
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stop order; and (d) any request by the SEC for any amendment or supplement to such
Registration Statement or any Prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus so
that, as thereafter delivered to the purchasers of the securities covered by such Registration
Statement, such Prospectus will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading, and promptly make available to the Holders of Registrable Securities included in such
Registration Statement any such supplement or amendment; except that before filing with the SEC a
Registration Statement or Prospectus or any amendment or supplement thereto, including documents
incorporated by reference, the Company shall furnish to the Holders of Registrable Securities
included in such Registration Statement and to the legal counsel for such Holders (such legal
counsel to be selected by the Holder of a Majority-In-Interest of the Registrable Securities
included in such Registration Statement, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such Holders and such legal counsel with a reasonable
opportunity to review such documents and comment thereon, and the Company shall not file any
Registration Statement or Prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such Holders or such legal counsel shall reasonably object.
The Company shall use its best efforts to obtain the withdrawal of any order suspending the
effectiveness or qualification of a Registration Statement or suspending or preventing the use of
any related Prospectus at the earliest possible time.
5.1.5 State Securities Laws Compliance. The Company shall use its best efforts to (a)
register or qualify the Registrable Securities covered by the Registration Statement under such
securities or “blue sky” laws of such jurisdictions in the United States as the Holders of
Registrable Securities included in such Registration Statement (in light of their intended plan of
distribution) may reasonably request (“Blue Sky Filing”) and (b) take such action as reasonably
necessary to cause such Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental authorities as may be necessary by virtue of
the business and operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the Holders of Registrable Securities included in such
Registration Statement to consummate the disposition of such Registrable Securities in such
jurisdictions; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph, consent to general service of process in any such jurisdiction or subject
itself to taxation in any such jurisdiction.
5.1.6 Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities. Such Holders of Registrable Securities shall agree to such representations,
warranties, covenants and indemnification and contribution obligations for selling stockholders as
are reasonably and customarily contained in agreements of that type used by the underwriters.
5.1.7 Cooperation. (a) The management of the Company shall cooperate fully in any
offering of Registrable Securities hereunder, which cooperation shall include, without limitation,
the preparation of the Registration Statement with respect to such offering
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and all other offering materials and related documents, and participation in meetings with
underwriters, attorneys, accountants and potential purchasers, including without limitation,
participation in any roadshow for an underwritten offering.
(a) The Company shall, upon request, furnish to the lead underwriter of an underwritten
offering of Registrable Securities, if any, without charge, at least one signed copy of each
Registration Statement and any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits; and furnish to each
Holder of Registrable Securities, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested) and shall cooperate with the selling Holders of
Registrable Securities and the lead underwriter of an underwritten offering of Registrable
Securities, if any, to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the provisions of the governing
documents thereof) and registered in such names as the selling Holders or the lead underwriter of
an underwritten offering of Registrable Securities, if any, may reasonably request at least three
(3) business days prior to any sale of Registrable Securities.
5.1.8 Records. The Company shall make available for inspection by the Holders of
Registrable Securities included in such Registration Statement, any underwriter participating in
any disposition pursuant to such Registration Statement and any attorney, accountant or other
professional retained by the Holders of a Majority-In-Interest of the Registrable Securities
included in such Registration Statement or any underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of the Company
(collectively, the “Records”) as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company’s directors, officers and employees to supply all
information reasonably requested by any of them in connection with such Registration Statement.
Records which the Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (a) the disclosure of
such Records is necessary to avoid or correct a misstatement or omission in such Registration
Statement or (b) the release of such Records is ordered pursuant to a subpoena or other order from
a court of competent jurisdiction. Each Holder of Registrable Securities included in such
Registration Statement agrees that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to the public. Each
Holder of Registrable Securities included in such Registration Statement further agrees that it
will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
5.1.9 Opinions and Comfort Letters. If a Registration Statement in respect of
Registrable Securities includes an underwritten offering, the Company shall furnish (a) any opinion
of counsel to the Company delivered to any underwriter and (b) any comfort letter from the
Company’s independent public accountants delivered to any underwriter, each in the
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form reasonably requested by counsel to such underwriter and shall, if consistent with the
policies of such counsel or independent public accountants, furnish to each Holder of Registrable
Securities included in such Registration Statement a signed counterpart, addressed to such Holder,
of any such opinion of counsel or comfort letter.
5.1.10 Earnings Statement. The Company shall make available to its stockholders, as
soon as practicable but not more than 90 days after the close of the period covered thereby, an
earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder covering the twelve month period beginning not later than the first day of the Company’s
fiscal quarter next following the applicable effective date of each applicable Registration
Statement.
5.1.11 Listing. To the extent any Registrable Securities are not able to be listed on
an exchange, the Company shall use its commercially reasonable efforts to cause all Registrable
Securities included in any Registration Statement to be designated for trading in the same manner
as similar securities issued by the Company are then designated. In the event that the Common
Stock of the Company is not listed on an Eligible Market, the Holders representing a
Majority-of-Interest of the Registrable Securities, may in their sole discretion require the
Company to list the Registrable Securities on any Eligible Market upon which the Company has met,
or is able to meet, the eligibility criteria thereof, and the Company shall use commercially
reasonable efforts to effect such listing as soon as practicable.
5.1.12 CUSIP. The Company shall provide a CUSIP number for all Registrable Securities
and provide and cause to be maintained a transfer agent and registrar for all such Registrable
Securities covered by a Registration Statement not later than the effectiveness of such
Registration Statement.
5.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5.1.4(d), each Holder of Registrable
Securities included in any registration shall immediately discontinue disposition of such
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities
until such Holder receives the supplemented or amended Prospectus contemplated by Section 5.1.4(d)
and, if so directed by the Company, each such Holder will destroy all copies, other than permanent
file copies then in such Holder’s possession, of the most recent Prospectus covering such
Registrable Securities at the time of receipt of such notice.
5.3 Registration Expenses. The Company shall pay the following costs and expenses
(the “Registration Expenses”) incurred in connection with (a) any Demand Registration pursuant to
Section 2 and (b) any Piggy-Back Registration pursuant to Section 3, and all expenses incurred in
performing or complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all registration and
filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including
fees and disbursements of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales agreements,
securities certificates and other documents relating to the
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performance of or compliance with this Agreement; (iv) the fees and expenses incurred in
connection with (A) the listing of the Registrable Securities as required by Section 5.1.11 and (B)
with respect to the requirements of Section 5.1.12; (v) Financial Industry Regulatory Authority,
Inc. fees; (vi) fees and disbursements of counsel for the Company and fees and expenses for
independent public accountants retained by the Company (including the expenses or costs associated
with the delivery of any opinions or comfort letters requested pursuant to Section 5.1.9); (vii)
the fees and expenses of one counsel for the Holders selected by the Majority-in-Interest of the
Registrable Securities; (viii) the fees and expenses of any special experts retained by the Company
in connection with such Registration; and (ix) the expenses incurred in connection with making road
show presentations and holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities which are customarily borne by the issuer; and (x) other fees and
expenses customarily borne by issuers in the registration and offering of securities on their own
behalf or on behalf of selling security-holders; provided, however, Registration
Expenses shall not include discounts and commissions payable to underwriters, selling brokers,
dealer managers or other similar Persons engaged in the distribution of any of the Registrable
Securities. The Company shall have the right to exclude any Holder that does not agree to bear its
expenses (except as expressly provided in the preceding sentence) from the applicable Registration.
The obligation of the Company to bear the expenses described in this Section 5.3 shall apply
irrespective of whether a Registration becomes effective, is withdrawn or suspended, is converted
to another form of Registration and irrespective of when any of the foregoing shall occur.
5.4 Information. In connection with the filing of any Registration Statement covering
Registrable Securities, the Holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company in connection with the preparation of any Registration
Statement in order to effect the Registration of any Registrable Securities and in connection with
the Company’s obligation to comply with federal and applicable state securities laws. If a Holder
fails to provide such information after reasonably requested, the Company may omit such Holder’s
Registrable Securities from such Registration Statement.
6. Indemnification and Contribution.
6.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
to the fullest extent permitted by law each Holder of Registrable Securities, and each of their
respective officers, employees, Affiliates, trustees, directors, partners, members, attorneys and
agents, and each Person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) such Holder of Registrable Securities from and against
any expenses, losses, judgments, claims, damages or liabilities (“Losses”) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which the sale of such Registrable Securities was registered under the
Securities Act or under any Blue Sky Filing, Prospectus (including any preliminary Prospectus), or
any amendment thereof or supplement thereto, or arising out of or based upon any omission or
alleged omission to state a material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company will not be
liable in any such case to any Holder 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
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omission made in such Registration Statement, Prospectus, or any such amendment thereof or
supplement thereto, in reliance upon and in conformity with information furnished to the Company,
in writing, by such Holder expressly for use therein.
6.2 Indemnification by Holders of Registrable Securities. In connection with any
Registration Statement in which a Holder is participating and as a condition to such participation,
each Holder of Registrable Securities agrees, severally and not jointly, to indemnify and hold
harmless to the fullest extent permitted by law the Company, and each of its directors, officers,
employees, Affiliates, trustees and agents, and each Person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act) and each
underwriter (if any), and each Person, if any, who controls such underwriter (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act), against any Losses, insofar
as such Losses (or actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act, Prospectus
(including any preliminary Prospectus), or any amendment thereof or supplement thereto, or arise
out of or are based upon any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statement therein, in the case of the Prospectus in the
light of the circumstances under which they were made, not misleading, if the statement or omission
was made in reliance upon and in conformity with information furnished in writing to the Company by
such Holder expressly for use therein. Each Holder’s indemnification obligations hereunder shall
be several and not joint and shall be limited to the amount of net proceeds actually received by
such Holder from sales of Registrable Securities giving rise to such obligations.
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 and shall survive the transfer of such
securities by any Holder.
6.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person of
any notice of any Loss or any action in respect of which indemnity may be sought pursuant to
Section 6.1 or 6.2, such Person (the “Indemnified Party”) shall, if a claim in respect thereof is
to be made against any other Person for indemnification hereunder, notify such other Person (the
“Indemnifying Party”) in writing of the Loss or action; provided, however, that the
failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified
Party hereunder, except and solely to the extent the Indemnifying Party is actually and materially
prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to
any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it wishes, jointly with
all other Indemnifying Parties, to assume control of the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof; provided,
however, that in any action in which both the Indemnified Party and the Indemnifying Party
are named as defendants or if such Indemnified Party or parties determines in good faith that a
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conflict of interest exists and that therefore it is advisable for such Indemnified Party or
parties to be represented by separate counsel or that, upon advice of counsel to the Indemnified
Party or parties, there may be legal defenses available to it or them which are different from or
in addition to those available to the Indemnifying Party, then the Indemnifying Party or parties
shall not be entitled to assume such defense and the Indemnified Party or parties shall be entitled
to separate counsel at the Indemnifying Party’s or parties’ expense. If an Indemnifying Party or
parties is not so entitled to assume the defense of such action or does not assume such defense,
after having received the notice referred to in the first sentence of this paragraph, the
Indemnifying Party or parties will pay the reasonable fees and expenses of counsel for the
Indemnified Party or parties (limited in each jurisdiction to one counsel for all Indemnified
Parties under this Agreement). The Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel, which firm shall be designated in writing by
those Indemnified Parties who sold a majority of the Registrable Shares sold by all such
Indemnified Parties) to represent the Indemnified Party or parties and their respective controlling
Persons who may be subject to liability arising out of any claim in respect of which indemnity may
be sought by the Indemnified Party or parties against the Indemnifying Party or parties, with the
fees and expenses of such counsel to be paid by such Indemnifying Party. No Indemnifying Party
shall, without the prior written consent of any Indemnified Party or parties, consent to entry of
judgment or effect any settlement of any claim or pending or threatened proceeding in respect of
which the Indemnified Party or parties are or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such claim or
proceeding and does not include any statement of admission of fault, culpability or failure to act
by or on behalf of such Indemnified Party.
6.4 Contribution.
6.4.1 If the indemnification provided for in this Section 6 is unavailable to any Indemnified
Party or insufficient to hold it harmless in respect of any Loss referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party or parties, shall contribute to
the amount paid or payable by such Indemnified Party or parties as a result of such Loss in such
proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted in such Loss, as
well as any other relevant equitable considerations. The relative fault of any Indemnified Party
and any Indemnifying Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
6.4.2 The parties agree that it would not be just and equitable if contribution pursuant to
this Section 6.4 were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
Section 6.4.1.
6.4.3 The amount paid or payable by an Indemnifying Party as a result of any Loss shall be
deemed to include, subject to the limitations set forth above, any legal or
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other expenses incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 6.4, no Holder
of Registrable Securities shall be required to contribute any amount in excess of the dollar amount
by which the net proceeds actually received by such Holder from the sale of Registrable Securities
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.4.4 The indemnity and contribution agreements contained in this Section 6 are in addition to
any liability which the Indemnifying Parties may otherwise have to the Indemnified Parties
hereunder, under applicable law or at equity, and shall remain in full force and effect regardless
of any investigation made by or on behalf of any Indemnified Party or any officer, employee,
Affiliate, trustee, director, partner, member, attorney, agent or controlling person of such
Indemnified Party and shall survive the transfer of Registrable Securities.
6.4.5 The indemnification required by this Section 6 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when reasonably detailed
and itemized bills are received or Losses are incurred.
7. Underwriting and Distribution.
7.1 Rule 144. The Company covenants that it shall file any reports required to be
filed by it under the Securities Act or the Exchange Act and the Company shall not terminate its
status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the
rules and regulations thereunder would no longer require or otherwise permit such termination 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
(subject to any contractual obligation of such Holders to the contrary) 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 SEC. Upon the request of any Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
8. Miscellaneous.
8.1 Registration Rights to Others. If the Company shall at any time hereafter
provide to any holder of any securities of the Company rights with respect to the registration of
such securities under the Securities Act, such rights shall not be in conflict with or adversely
affect any of the rights provided in this Agreement to the Holders.
8.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective heirs, successors and permitted assigns (including any
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permitted transferee of Registrable Securities). Any Holder may assign to any transferee of
its Registrable Securities (to the extent that such securities continue to be Registrable
Securities), its rights and obligations under this Agreement; provided, however,
that no such transfer or assignment shall be binding upon or obligate the Company to any such
assignee, and no such assignee shall be deemed a Holder hereunder, unless and until the Company
shall have received written notice of such transfer or assignment as herein provided and a written
agreement of the assignee to be bound by the provisions of this Agreement. This Agreement is not
intended to confer any rights or benefits on any Persons that are not party hereto other than as
expressly set forth in Article 6 and this Section 8.1.
8.3 Notices. All notices, demands, requests, consents, approvals or other
communications required or permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by reputable overnight
courier service with charges prepaid, or transmitted by hand delivery, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have specified most
recently by written notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telex or facsimile; provided, however, that if
such service or transmission is not on a Business Day or is after normal business hours, then such
notice shall be deemed given on the next Business Day. Notice otherwise sent as provided herein
shall be deemed given on the next Business Day following timely delivery of such notice to a
reputable overnight courier service with an order for next-day delivery.
To the Company:
Care Investment Trust Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: As provided from time to time pursuant to Section 8.3
Attention: Chief Executive Officer
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: As provided from time to time pursuant to Section 8.3
Attention: Chief Executive Officer
To each Holder, at the address most recently provided by such Holder to the Company.
8.4 Severability. If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the
provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of
this Agreement so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes as close as possible to that of
the prohibited, invalid or unenforceable provision(s).
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8.5 Counterparts. This Agreement may be executed by facsimile and in multiple
counterparts, and all of which taken together shall constitute one and the same instrument.
8.6 Entire Agreement. This Agreement (including all agreements entered into pursuant
hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the
entire agreement of the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements, representations, understandings, negotiations and discussions among
the parties, whether oral or written.
8.7 Modifications and Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of a Majority-In-Interest of Registrable Securities outstanding at such time.
8.8 Titles and Headings. Titles and headings of sections of this Agreement are for
convenience only and shall not affect the construction of any provision of this Agreement.
8.9 Waivers and Extensions. Any party to this Agreement may waive any right, breach
or default which such party has the right to waive, provided, that such waiver will not be
effective against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after the right waived
has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision herein contained.
No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver
or extension of the time for performance of any other obligations or acts.
8.10 Remedies Cumulative. In the event that the Company fails to observe or perform
any covenant or agreement to be observed or performed under this Agreement, each Holder of
Registrable Securities may proceed to protect and enforce its rights by suit in equity or action at
law, whether for specific performance of any term contained in this Agreement or for an injunction
against the breach of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement
or now or hereafter available at law, in equity, by statute or otherwise.
8.11 Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
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sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
8.12 Specific Performance. The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform in any material respect any of its obligations
hereunder, and accordingly agree that each party, in addition to any other remedy to which it may
be entitled at law or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having jurisdiction, without
the requirement of proving actual damages or posting a bond.
8.13 Holdback Agreement. In connection with an underwritten primary or secondary
offering to the public conducted at any time following the effective date of this Agreement, each
Holder of Registrable Securities agrees, subject to any exceptions that may be agreed upon at the
time of such offering, not to sell or otherwise transfer or dispose of any Registrable Securities
(or other securities) of the Company held by them (other than Registrable Securities included in
such offering in accordance with the terms hereof) for a period equal to the lesser of 90 days
following the effective date of a Registration Statement of the Company filed under the Securities
Act or such shorter period as to which the managing underwriter(s) shall agree; provided that each
executive officer and member of the board of directors of the Company also agrees to such
restrictions. Such agreement shall be in writing in form reasonably satisfactory to the Company
and the managing underwriter. The Company may impose stop-transfer instructions with respect to
the Registrable Securities (or other securities of the Company) subject to the foregoing
restriction until the end of said period.
8.14 Further Assurances. Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other party hereto reasonably may
request in order to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
8.15 No Inconsistent Agreements. The Company will not hereafter enter into any
agreement which is inconsistent with the rights granted to the Holders in this Agreement.
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8.16 Termination. The rights and obligations set forth in this Agreement shall
terminate if the transactions contemplated by the Purchase Agreement have not been consummated and
the Purchase Agreement has terminated pursuant to its terms.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed
and delivered as of the date first written above.
| COMPANY: CARE INVESTMENT TRUST INC. |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Chief Executive Officer and President | |||
| PURCHASER TIPTREE FINANCIAL PARTNERS LP |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxx | |||
| Title: | President and Chief Operating Officer | |||
