CASCADE BANCORP REGISTRATION RIGHTS AGREEMENT
Table of
Contents
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Page
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SECTION
1 DEFINITIONS
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1
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1.1
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Certain
Definitions
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1
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SECTION
2 REGISTRATION
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3
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2.1
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Registration
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3
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2.2
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Expenses
of Registration
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5
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2.3
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Obligations
of the Company
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5
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2.4
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Suspension
of Sales
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8
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2.5
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Termination
of Registration Rights
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8
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2.6
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Free
Writing Prospectuses
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9
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2.7
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Indemnification.
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9
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2.8
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Assignment
of Registration Rights
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10
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2.9
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Holdback
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10
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2.10
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Rule
144; Rule 144A Reporting
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10
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2.11
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Forfeiture
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11
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SECTION
3 MISCELLANEOUS
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11
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3.1
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Governing
Law
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11
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3.2
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Waiver
of Jury Trial
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11
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3.3
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Successors
and Assigns
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11
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3.4
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Entire
Agreement; Amendment; Waiver
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12
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3.5
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Additional
Parties
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12
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3.6
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Notices,
Etc
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12
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3.7
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Delays
or Omissions
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12
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3.8
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Rights;
Separability
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12
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3.9
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Information
Confidential
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12
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3.10
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Expenses
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13
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3.11
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Legend
on Certificates
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13
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3.12
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Captions
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13
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3.13
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Counterparts;
Facsimile
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00
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XXXXXXXXXXXX
RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”)
is made and entered into as of the 28th day of January, 2011 by and among
Cascade Bancorp, an Oregon corporation (the “Company”),
and the persons identified on the signature pages hereof (the “Shareholders”).
Recitals
WHEREAS, the Shareholders have
entered into separate Securities Purchase Agreements with the Company
(collectively, the “Securities
Purchase Agreements”), pursuant to which each Shareholder has purchased
shares of common stock of the Company (the “Common
Stock”); and
WHEREAS, as a condition to the
closing of the Shareholders’ acquisition of the Common Stock pursuant to the
Securities Purchase Agreements, the Shareholders and the Company have agreed to
enter into this Registration Rights Agreement.
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, all parties
hereto agree as follows:
SECTION
1
DEFINITIONS
1.1 Certain
Definitions. As used in this
Agreement, the following terms shall have the following respective
meanings:
“Affiliate”
means, with respect to any person, any person directly or indirectly
controlling, controlled by or under common control with, such other person. For
purposes of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control with”)
when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management and/or policies of
such person, whether through the ownership of voting securities, by contract or
otherwise or for purposes of the Bank Holding Company Act of 1956, as amended or
the Change in Bank Control Act of 1978, as amended.
“Holder”
means any Shareholder and any other holder of Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with Section 2.8
hereof.
“Holders’
Counsel” means one counsel for the selling Holders chosen by Holders
representing a majority interest in the Registrable Securities being
registered.
“Register,”
“registered,”
and “registration”
shall refer to a registration effected by preparing and filing (a) a
registration statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or ordering of
effectiveness of such registration statement or (b) a prospectus and/or
prospectus supplement in respect of an appropriate effective registration
statement on Form S-3 or other form approved by the holders of a majority of
Registrable Securities available for sales of securities pursuant to Rule 415
under the Securities Act.
-1-
“Registrable
Securities” means (A) all Common Stock held by the Holders from time to
time, and (B) any equity securities issued or issuable directly or indirectly
with respect to the securities referred to in the foregoing clause (A) by way of
conversion, exercise or exchange thereof or stock dividend or stock split or in
connection with a combination of shares, recapitalization, reclassification,
merger, amalgamation, arrangement, consolidation or other reorganization, provided that, once issued,
such securities will not be Registrable Securities when (i) they are sold
pursuant to an effective registration statement under the Securities Act, (ii)
they shall have ceased to be outstanding; or (iii) they have been sold in a
private transaction in which the transferor’s rights under this Agreement are
not assigned to the transferee of the securities. No Registrable Securities may
be registered under more than one registration statement at one
time.
“Registration
Expenses” means all expenses incurred by the Company in effecting any
registration pursuant to this Agreement (whether or not any registration or
prospectus becomes effective or final) or otherwise complying with its
obligations under this Agreement, including, without limitation, all
registration, filing and listing fees (including filings made with the Financial
Industry Regulatory Authority), printing expenses (including printing of
prospectuses and certificates for the securities), the Company’s expenses for
messenger and delivery services and telephone, fees and disbursements of counsel
for the Company, blue sky fees and expenses, expenses incurred by the Company in
connection with any “road show,” the fees and disbursements of Holders’ Counsel,
and expenses of the Company’s independent accountants in connection with any
regular or special reviews or audits incident to or required by any such
registration, but shall not include Selling Expenses and the compensation of
regular employees of the Company, which shall be paid in any event by the
Company.
“Rule 144,”
“Rule
144A,” “Rule 158,”
“Rule
159A,” “Rule 405”
and “Rule
415” mean, in each case, such rule promulgated under the Securities Act
(or any successor provision), as the same shall be amended from time to
time.
“Scheduled
Black-out Period” means the period from and including the last day of a
fiscal quarter of the Company to and including the business day after the day on
which the Company publicly releases its earnings for such fiscal
quarter.
“SEC” means
the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute.
“Selling
Expenses” means all discounts, selling commissions and stock transfer
taxes applicable to the sale of Registrable Securities and fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of Holders’ Counsel included in Registration Expenses), other than $25,000 of
fees and disbursements of Holders’ Counsel, which shall be reimbursed by the
Company pursuant to Section 2.2.
-2-
SECTION
2
REGISTRATION
2.1 Registration. Subject to the terms and
conditions of this Agreement, the Company covenants and agrees that as promptly
as practicable after the date of this Agreement (and in any event no later than
the date that is 30 days after the date hereof (the “Registration
Deadline”)), the Company shall have prepared and filed with the SEC a
Shelf Registration Statement (defined below) covering all Registrable Securities
(or otherwise designate an existing Shelf Registration Statement filed with the
SEC to cover the Registrable Securities), and, to the extent the Shelf
Registration Statement has not theretofore been declared effective or is not
automatically effective upon such filing, the Company shall use reasonable best
efforts to cause such Shelf Registration Statement to be declared or become
effective not later than the Registration Deadline and to keep such Shelf
Registration Statement continuously effective and in compliance with the
Securities Act and usable for resale of such Registrable Securities for a period
from the date of its initial effectiveness until such time as there are no
Registrable Securities remaining (including by refiling such Shelf Registration
Statement (or a new Shelf Registration Statement) if the initial Shelf
Registration Statement expires). If the Company is a well-known seasoned issuer
(as defined in Rule 405 under the Securities Act) at the time of filing of the
Shelf Registration Statement with the SEC, such Shelf Registration Statement
shall be designated by the Company as an automatic Shelf Registration
Statement.
(a) Any
registration pursuant to this Section 2.1 shall be effected by means of a shelf
registration under the Securities Act (a “Shelf
Registration Statement”) in accordance with the methods and distribution
set forth in the Shelf Registration Statement and Rule 415. If the Shareholders
or any other Holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred in compliance with this
Agreement intends to distribute any Registrable Securities by means of an
underwritten offering it shall promptly so advise the Company and the Company
shall take all reasonable steps to facilitate such distribution, including the
actions required pursuant to Section 2.3; provided, that the Company
shall not be required to facilitate an underwritten offering of Registrable
Securities unless the expected gross proceeds from such offering exceed
$1,000,000. The lead underwriters in any such distribution shall be selected by
the holders of a majority of the Registrable Securities to be distributed and be
reasonably acceptable to the Company.
(b) The
Company shall not be required to effect a registration (including a resale of
Registrable Securities from an effective Shelf Registration Statement) or an
underwritten offering pursuant to this Section 2: (i) with
respect to securities that are not Registrable Securities; (ii) during any
Scheduled Black-out Period; or (iii) if the Company has notified the
Shareholders and all other Holders that in the good faith judgment of the Board
of Directors, it would be materially detrimental to the Company or its security
holders for such registration or underwritten offering to be effected at such
time, in which event the Company shall have the right to defer such registration
or underwritten offering for a period of not more than 30 days after receipt of
the request of the Shareholders or any other Holder; provided that such right to
delay a registration or underwritten offering shall be exercised by the Company
(A) only if the Company has generally exercised (or is concurrently exercising)
similar black-out rights against holders of similar securities that have
registration rights and (B) not more than twice in any 12-month period and not
more than 60 days in the aggregate in any 12-month period.
-3-
(c) After
the Closing Date, whenever the Company proposes to register any of its equity
securities, other than a registration pursuant to Section 2.1 or a Special
Registration, and the registration form to be filed may be used for the
registration or qualification for distribution of Registrable Securities, the
Company will give prompt written notice to the Shareholders and all other
Holders of its intention to effect such a registration (but in no event less
than 15 days prior to the anticipated filing date) and (subject to Section
2.1(e)) will include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within ten business days after the date of the Company’s notice (a “Piggyback
Registration”). Any such person that has made such a written request may
withdraw its Registrable Securities from such Piggyback Registration by giving
written notice to the Company and the managing underwriter, if any, on or before
the fifth day prior to the planned effective date of such Piggyback
Registration. The Company may terminate or withdraw any registration under this
Section 2.1(c)
prior to the effectiveness of such registration, whether or not the Shareholders
or any other Holders have elected to include Registrable Securities in such
registration. “Special
Registration” means the registration of (i) equity securities and/or
options or other rights in respect thereof solely registered on Form S-4 or Form
S-8 (or successor form) or (ii) shares of equity securities and/or options or
other rights in respect thereof to be offered to directors, members of
management, employees, consultants, customers, lenders or vendors of the Company
or its subsidiaries or in connection with dividend reinvestment
plans.
(d) If
the registration referred to in Section 2.1(c) is proposed to
be underwritten, the Company will so advise the Shareholders and all other
Holders as a part of the written notice given pursuant to Section 2.1(c). In such event,
the right of the Shareholders and all other Holders to registration pursuant to
this Section 2 will be conditioned upon such persons’ participation in such
underwriting and the inclusion of such persons’ Registrable Securities in the
underwriting, and each such person will (together with the Company and the other
persons distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. If any participating person
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the managing underwriter and the
Holders.
(e) The
Company represents and warrants that it has not granted to any holder of its
securities and agrees that it shall not grant “piggyback” registration rights to
one or more third parties to include their securities in the Shelf Registration
Statement or in an underwritten offering under the Shelf Registration Statement
pursuant to Section 2.1(a). If a Piggyback
Registration under Section 2.1(c) relates to an
underwritten primary offering on behalf of the Company, and the managing
underwriters advise the Company that in their reasonable opinion the number of
securities requested to be included in such offering exceeds the number which
can be sold without adversely affecting the marketability of such offering
(including an adverse effect on the per share offering price), the Company will
include in such registration or prospectus only such number of securities that
in the reasonable opinion of such underwriters can be sold without adversely
affecting the marketability of the offering (including an adverse effect on the
per share offering price), which securities will be so included in the following
order of priority: (i) first, in the case of a Piggyback Registration under
Section 2.1(c),
the securities the Company proposes to sell, (ii) second, Registrable Securities
of the Shareholders and all other Holders who have requested registration of
Registrable Securities pursuant to Section 2.1(a) or 2.1(c) of this Agreement,
as applicable, pro rata
on the basis of the aggregate number of such securities or shares proposed to be
sold by each such Holder and (iii) third, any other securities of the Company
that have been requested to be so included, subject to the terms of this
Agreement.
-4-
2.2 Expenses
of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
hereunder shall be borne by the Company. The Company shall bear its internal
expenses (including, without limitation, all salaries and expenses of their
officers and employees performing legal, accounting or other duties) and
expenses of any person, including special experts, retained by the Company. The
Company shall also reimburse the Shareholders for the reasonable fees and
disbursements of legal counsel to the Shareholders in an amount not to exceed
$25,000 per registration. All Selling Expenses incurred in connection with any
registrations hereunder shall be borne by the holders of the securities so
registered pro rata on
the basis of the aggregate offering or sale price of the securities so
registered.
2.3 Obligations
of the Company. The Company shall use its
reasonable best efforts for so long as there are Registrable Securities
outstanding, to take such actions as are under its control to remain a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) if
it becomes eligible for such status in the future (and not become an ineligible
issuer (as defined in Rule 405 under the Securities Act)). In addition, whenever
required to effect the registration of any Registrable Securities or facilitate
the distribution of Registrable Securities pursuant to an effective Shelf
Registration Statement, the Company shall, as expeditiously as reasonably
practicable:
(a)
Prepare and file with the SEC a prospectus supplement with
respect to a proposed offering of Registrable Securities pursuant to an
effective registration statement, subject to this Section 2.3, and keep such
registration statement effective or such prospectus supplement current until the
securities described therein are no longer Registrable Securities.
(b)
Prepare and file with the SEC such amendments and supplements
to the applicable registration statement and the prospectus or prospectus
supplement used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration
statement.
(c)
Furnish to the Holders and any underwriters such number of
copies of the applicable registration statement and each such amendment and
supplement thereto (including in each case all exhibits) and of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned or to be
distributed by them.
-5-
(d)
Use its reasonable best efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders or any managing underwriter(s), to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and to take any other action which may be
reasonably necessary to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such Holder; provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(e)
Notify each Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the applicable prospectus, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
(f)
Give written notice to the Holders:
(i) When
any registration statement filed pursuant to Section 2 or any amendment
thereto has been filed with the SEC (except for any amendment effected by the
filing of a document with the SEC pursuant to the Securities Exchange Act of
1934 (the “Exchange
Act”)) and when such registration statement or any post-effective
amendment thereto has become effective;
(ii) of
any request by the SEC for amendments or supplements to any registration
statement or the prospectus included therein or for additional
information;
(iii) of
the issuance by the SEC of any stop order suspending the effectiveness of any
registration statement or the initiation of any proceedings for that
purpose;
(iv) of
the receipt by the Company or its legal counsel of any notification with respect
to the suspension of the qualification of the Common Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(v) of
the happening of any event that requires the Company to make changes in any
effective registration statement or the prospectus related to the registration
statement in order to make the statements therein not misleading (which notice
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made); and
(vi) if
at any time the representations and warranties of the Company contained in any
underwriting agreement contemplated by Section 2.3(j) cease to be true
and correct.
-6-
(g) Use
its reasonable best efforts to prevent the issuance or obtain the withdrawal of
any order suspending the effectiveness of any registration statement referred to
in Section 2.3(f)(iii) at the
earliest practicable time.
(h) Upon
the occurrence of any event contemplated by Section 2.3(e) or 2.3(f)(v),
promptly prepare a post-effective amendment to such registration statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to the Holders and any underwriters, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
notifies the Holders in accordance with Section 2.3(f)(v) to suspend
the use of the prospectus until the requisite changes to the prospectus have
been made, then the Holders and any underwriters shall suspend use of such
prospectus and use their reasonable best efforts to return to the Company all
copies of such prospectus (at the Company’s expense) other than permanent file
copies then in such Holder’s or underwriter’s possession. The total number of
days that any such suspension may be in effect in any 180-day period shall not
exceed 30 days.
(i) Use
best efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Securities, including with respect
to the transfer of physical stock certificates into book-entry form in
accordance with any procedures reasonably requested by the Holders or any
managing underwriter(s).
(j) If
an underwritten offering is requested pursuant to Section 2.1(a), enter into an
underwriting agreement in customary form, scope and substance and take all such
other actions reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith or by the managing
underwriter(s), if any, to expedite or facilitate the underwritten disposition
of such Registrable Securities, and in connection therewith in any underwritten
offering (including making members of management and executives of the Company
available to participate in “road shows,” similar sales events and other
marketing activities), (i) make such representations and warranties to the
Holders that are selling shareholders and the managing underwriter(s), if any,
with respect to the business of the Company and its subsidiaries, and the Shelf
Registration Statement, prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in customary form,
substance and scope, and, if true, confirm the same if and when requested, (ii)
furnish the underwriters with opinions of counsel to the Company, addressed to
the managing underwriter(s), if any, covering the matters customarily covered in
such opinions requested in underwritten offerings, (iii) obtain “comfort”
letters from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any business
acquired by the Company for which financial statements and financial data are
included in the Shelf Registration Statement) who have certified the financial
statements included in such Shelf Registration Statement, addressed to each of
the managing underwriter(s), if any, such letters to be in customary form and
covering matters of the type customarily covered in “comfort” letters, (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures customary in underwritten offerings,
and (v) deliver such documents and certificates as may be reasonably requested
by the Holders of a majority of the Registrable Securities being sold in
connection therewith, their counsel and the managing underwriter(s), if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company.
-7-
(k) Make
available for inspection by a representative of Holders that are selling
shareholders, the managing underwriter(s), if any, and any attorneys or
accountants retained by such Holders or managing underwriter(s), at the offices
where normally kept, during reasonable business hours, financial and other
records, pertinent corporate documents and properties of the Company, and cause
the officers, directors and employees of the Company to supply all information
in each case reasonably requested (and of the type customarily provided in
connection with due diligence conducted in connection with a registered public
offering of securities) by any such representative, managing underwriter(s),
attorney or accountant in connection with such Shelf Registration
Statement.
(l) Cause
all such Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed or, if no similar
securities issued by the Company are then listed on any securities exchange, use
its reasonable best efforts to cause all such Registrable Securities to be
listed on the New York Stock Exchange or NASDAQ, as determined by the
Company.
(m) If
requested by Holders of a majority of the Registrable Securities being
registered and/or sold in connection therewith, or the managing underwriter(s),
if any, promptly include in a prospectus supplement or amendment such
information as the Holders of a majority of the Registrable Securities being
registered and/or sold in connection therewith or managing underwriter(s), if
any, may reasonably request in order to permit the intended method of
distribution of such securities and make all required filings of such prospectus
supplement or such amendment as soon as practicable after the Company has
received such request.
(n) Timely
provide to its Shareholders earning statements satisfying the provisions of
Section 11(a) of
the Securities Act and Rule 158 thereunder.
2.4 Suspension
of Sales. During any Scheduled
Black-out Period and upon receipt of written notice from the Company that a
registration statement, prospectus or prospectus supplement contains or may
contain an untrue statement of a material fact or omits or may omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that circumstances exist that make inadvisable use of
such registration statement, prospectus or prospectus supplement, each Holder of
Registrable Securities shall forthwith discontinue disposition of Registrable
Securities until termination of such Scheduled Black-out Period or until such
Holder has received copies of a supplemented or amended prospectus or prospectus
supplement, or until such Holder is advised in writing by the Company that the
use of the prospectus and, if applicable the prospectus supplement may be
resumed. The total number of days that any such suspension may be in effect in
any 180-day period shall not exceed 30 days.
2.5 Termination
of Registration Rights. A Holder’s registration
rights as to any securities held by such Holder (and its Affiliates, partners,
members and former members) shall not be available unless such securities are
Registrable Securities.
-8-
2.6 Free
Writing Prospectuses. No Holder shall use any free
writing prospectus (as defined in Rule 405) in connection with the sale of
Registrable Securities without the prior written consent of the
Company.
2.7 Indemnification.
(a) The
Company agrees to indemnify each Holder and, if a Holder is a person other than
an individual, such Holder’s officers, directors, members, managers, employees,
agents, representatives and Affiliates, and each person, if any, that controls a
Holder within the meaning of the Securities Act (each, an “Indemnitee”),
against any and all Losses, joint or several, arising out of or based upon any
untrue statement or alleged untrue statement of material fact contained in any
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto or any documents
incorporated therein by reference or contained in any free writing prospectus
(as such term is defined in Rule 405) prepared by the Company or authorized by
it in writing for use by such Holder (or any amendment or supplement thereto);
or any omission to state therein a 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; provided, that the Company
shall not be liable to such Indemnitee in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (i) an untrue statement or omission
made in such registration statement, including any such preliminary prospectus
or final prospectus contained therein or any such amendments or supplements
thereto or contained in any free writing prospectus (as such term is defined in
Rule 405) prepared by the Company or authorized by it in writing for use by such
Holder (or any amendment or supplement thereto), in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to the
Company by such Indemnitee for use in connection with such registration
statement, including any such preliminary prospectus or final prospectus
contained therein or any such amendments or supplements thereto, or (ii) offers
or sales effected by or on behalf such Indemnitee “by means of” (as defined in
Rule 159A) a “free writing prospectus” (as defined in Rule 405) that was not
authorized in writing by the Company.
(b) If
the indemnification provided for in Section 2.7(a) is unavailable
to an Indemnitee with respect to any Losses or is insufficient to hold the
Indemnitee harmless as contemplated therein, then the Company, in lieu of
indemnifying such Indemnitee, shall contribute to the amount paid or payable by
such Indemnitee as a result of such Losses in such proportion as is appropriate
to reflect the relative fault of the Indemnitee, on the one hand, and the
Company, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of the Company, on the one hand, and of the Indemnitee, on
the other hand, shall be determined by reference to, among other factors,
whether the untrue statement of a material fact or omission to state a material
fact relates to information supplied by the Company or by the Indemnitee and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; the Company and each Holder agree
that it would not be just and equitable if contribution pursuant to this
Section 2.7(b)
were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 2.7(a). No Indemnitee
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from the Company if the Company was not
guilty of such fraudulent misrepresentation.
-9-
2.8 Assignment
of Registration Rights. The rights of a Holder to
registration of Registrable Securities pursuant to Section 2 may be assigned by
such Holder to a transferee or assignee of Registrable Securities to which there
is transferred to such transferee no less than $1,000,000 in Registrable
Securities; provided,
however, that the
transferor shall, within ten days after such transfer, furnish to the Company
written notice of the name and address of such transferee or assignee and the
number and type of Registrable Securities that are being assigned.
Notwithstanding
the foregoing, the rights of a Shareholder to registration of Registrable
Securities pursuant to Section 2 may be assigned to any Affiliate of the
Shareholder (including without limitation any Affiliated fund) under common
control with the Shareholder's ultimate parent, general partner or investment
advisor or (B) any limited partner or shareholder of the Shareholder or
limited partner or shareholder of the Shareholder's Affiliates to which
there is transferred any Registrable Securities, regardless of amount; provided, however, that the transferor
shall, within ten days after such transfer, furnish to the Company written
notice of the name and address of such transferee or assignee and the number and
type of Registrable Securities that are being assigned.
2.9 Holdback. With respect to any
underwritten offering of Registrable Securities by the Shareholders or other
Holders pursuant to Section 2.1, the Company agrees not to effect (other than
pursuant to such registration or pursuant to a Special Registration) any public
sale or distribution, or to file any Shelf Registration Statement (other than
such registration or a Special Registration) covering any of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the period not to exceed 30 days prior and 90 days
following the effective date of such offering or such longer period up to 180
days as may be requested by the managing underwriter. The Company also agrees to
cause each of its directors and senior executive officers to execute and deliver
customary lockup agreements in such form and for such time period up to 180 days
as may be requested by the managing underwriter.
2.10 Rule
144; Rule 144A Reporting. With a view to making
available to the Shareholders and other Holders the benefits of certain rules
and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees
to:
(a) make
and keep public information available, as those terms are understood and defined
in Rule 144(c)(1) or any similar or analogous rule promulgated under the
Securities Act, at all times after the effective date of this
Agreement;
(b) file
with the SEC, in a timely manner, all reports and other documents required of
the Company under the Exchange Act, and if at any time the Company is not
required to file such reports, make available, upon the request of any Holder,
such information necessary to permit sales pursuant to Rule 144A (including the
information required by Rule 144A(d)(4) and the Securities
Act);
-10-
(c) so
long as any Shareholders or other Holders own any Registrable Securities,
furnish to the Shareholders or such other Holders forthwith upon request: a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 under the Securities Act, and of the Exchange Act; a
copy of the most recent annual or quarterly report of the Company; and such
other reports and documents as the Shareholders or other Holders may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration; and
(d) take
such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act.
2.11 Forfeiture. At any time, any Holder may
elect in writing to forfeit its rights set forth in this Section 2 from that
date forward; provided,
that a Holder forfeiting such rights shall nonetheless be entitled to
participate under Section 2.1 in any Pending Underwritten Offering to the same
extent that such Holder would have been entitled to if the Holder had not
withdrawn; and provided, further, that no such
forfeiture shall terminate a Holder’s rights or obligations under Section 2.7
with respect to any prior registration or Pending Underwritten Offering. “Pending
Underwritten Offering” means, with respect to any Holder forfeiting its
rights pursuant to this Section 2.11, any underwritten offering of Registrable
Securities in which such Holder has advised the Company of its intent to
register its Registrable Securities either pursuant to Section 2.1(a) or Section
2.1(c) prior to the date of such Holder’s forfeiture.
SECTION
3
MISCELLANEOUS
3.1 Governing
Law. This Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State. The
parties hereto irrevocably and unconditionally agree that any suit or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby will be tried exclusively in the U.S. District Court for the Southern
District of New York or, if that court does not have subject matter
jurisdiction, in any state court located in The City and County of New York and
the parties agree to submit to the jurisdiction of, and to venue in, such
courts.
3.2 Waiver
of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
3.3 Successors
and Assigns. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
-11-
3.4 Entire
Agreement; Amendment; Waiver. This Agreement
constitutes the full and entire understanding and agreement among the parties
with regard to the subjects hereof. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated, except by a written instrument
signed by the Company and the Holders of two-thirds of the Registrable
Securities and each Holder of at least 10% of the Company’s securities;
provided, that no amendment shall by its terms diminish or negatively affect a
Holders’ rights in a manner differently from any other Holder without such
Holder’s consent. Any such amendment, waiver, discharge or termination shall be
binding on all the Holders of Registrable Securities, but in no event shall the
obligation of any Holder of Registrable Securities hereunder be materially
increased, except upon the written consent of such Holder of Registrable
Securities.
3.5 Additional
Parties. Any person that acquires
Registrable Securities pursuant to the terms of this Agreement and upon
execution of a signature page to this Agreement shall be deemed a Holder
hereunder. The addition of such other Holders shall not be deemed an amendment
under Section 3.4 of this Agreement and no approval of any existing Shareholder
or party to this Agreement other than the Company shall be required to effect
such action. All Shareholders consent to the provisions of this Section
3.5.
3.6 Notices,
Etc. All notices and other
communications hereunder shall be in writing and shall be deemed duly given (i)
on the date of delivery if delivered personally, or if by facsimile, upon
written confirmation of receipt by facsimile, e-mail or otherwise, (ii) on the
first (1st)
business day following the date of dispatch if delivered utilizing a next-day
service by a recognized next-day courier service or (iii) on the earlier of
confirmed receipt or the fifth (5th)
business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices hereunder
shall be delivered, (x) if to a Holder, as indicated on the signature page
attached hereto, or at such other address as such Holder or permitted assignee
shall have furnished to the Company in writing, or (y) if to the Company, at
0000 XX Xxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Xxxx Xxxxxx, or at such
other address as the Company shall have furnished to each Holder in
writing.
3.7 Delays
or Omissions. No failure or delay of
any party in exercising any right or remedy 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 right or power, or
any course of conduct, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the parties
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have hereunder. Any agreement on the part of any party to
any such waiver shall be valid only if set forth in a written instrument
executed and delivered by a duly authorized officer on behalf of such
party.
3.8 Rights;
Separability. Unless otherwise
expressly provided herein, a Holder’s rights hereunder are several rights, not
rights jointly held with any of the other Holder. In case any provision of the
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
3.9 Information
Confidential. Each Holder acknowledges
that the information received by them pursuant hereto is confidential and for
its use only on behalf of the Company, and it will not use such confidential
information in violation of the Exchange Act or reproduce, disclose or
disseminate such information to any other person (other than its partners,
parent, subsidiaries, employees or agents having a need to know the contents of
such information, and its attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company or some other party other than
the Holder has made such information available to the public generally, or such
Holder is required to disclose such information by a governmental body (or order
thereof) or pursuant to any law, statute, rule or regulation.
-12-
3.10 Expenses. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
3.11 Legend
on Certificates. Each certificate
representing any Registrable Securities shall be endorsed by the Company with a
legend reading substantially as follows:
“The
Shares evidenced hereby are subject to a Registration Rights Agreement by and
among the Company and the Holders (as defined therein) (the “Agreement”) (a copy
of which may be obtained upon written request from the issuer), and by accepting
any interest in such Shares the person accepting such interest shall be deemed
to agree to and shall become bound by all the provisions of the
Agreement.”
3.12 Captions. The article, section,
paragraph and clause captions herein are for convenience of reference only, do
not constitute part of this Agreement and will not be deemed to limit or
otherwise affect any of the provisions hereof.
3.13 Counterparts;
Facsimile. This Agreement may be
executed by facsimile and in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument. Such
facsimile signatures shall be deemed original signatures for all
purposes.
[Signatures
Begin On Next Page]
-13-
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date and year, first above
written.
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By:
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/s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx
X. Xxxx
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Title: Chief
Executive Officer
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[Signature
Page to Registration Rights Agreement]
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GREEN
EQUITY INVESTORS V, L.P.
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By:
GEI Capital V, LLC, its General Partner
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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Shareholder’s
Address
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Green
Equity Investors V, L.P.
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c/o
Xxxxxxx Xxxxx & Partners, L.P.
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00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000
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Attn: Xxxxxxx
Xxxxxxxx
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Facsimile: (000)
000-0000
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[Signature
Page to Registration Rights Agreement]
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GREEN
EQUITY INVESTORS SIDE V, L.P.
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By:
GEI Capital V, LLC, its General Partner
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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Shareholder’s
Address
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Green
Equity Investors Side V, L.P.
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c/o
Xxxxxxx Xxxxx & Partners, L.P.
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00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000
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Attn: Xxxxxxx
Xxxxxxxx
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Facsimile: (000)
000-0000
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[Signature
Page to Registration Rights Agreement]
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WLR
CB ACQUISITIONCO LLC
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By:
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WLR
Recovery Fund IV, L.P.,
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Its
Sole Manager
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By:
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WLR
Recovery Associates IV LLC,
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Its
General Partner
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By:
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XX
Xxxx Group, L.P.,
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Its
Managing Member
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By:
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El
Vedado, LLC,
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Its
General Partner
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Authorized Person
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||
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Shareholder’s
Address:
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WLR
CB AcquisitionCo LLC
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c/o
XX Xxxx & Co. LLC
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxxx Xxxxxxx, Chief Financial Officer
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Facsimile:
(000) 000-0000
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with
a copy to
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XX
Xxxx & Co. LLC
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxxxx Xxxxxx, Esq.
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Facsimile:
(000) 000-0000
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[Signature
Page to Registration Rights Agreement]
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LIGHTYEAR
FUND II, L.P.
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By:
LIGHTYEAR FUND II GP, L.P., its
general
partner.
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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||
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Title:
Authorized Person
|
||
|
Shareholder’s
Address
|
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BOTC
Holdings LLC
c/o
Lightyear Capital LLC
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
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Attn:
Xxxx X. Xxxxxxx
Facsimile: (000)
000-0000
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[Signature
Page to Registration Rights Agreement]
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LIGHTYEAR
CO-INVEST
PARTNERSHIP
II, L.P.
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By:
LIGHTYEAR FUND II GP HOLDINGS,
LLC,
its general partner.
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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||
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Title:
Authorized Person
|
||
|
Shareholder’s
Address
BOTC
Holdings LLC
c/o
Lightyear Capital LLC
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxx
Facsimile: (000)
000-0000
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[Signature
Page to Registration Rights Agreement]
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XXXXX
X. XXXXXX
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/s/ Xxxxx X. Xxxxxx
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TWO-FORTY
ASSOCIATES LLC
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By:
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/s/ X.X. Xxxxxx
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Name:
X. X. Xxxxxx
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Title:
Managing Member
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THE
XXXXX X. XXXXXX 2008 GRANTOR
RETAINED
ANNUITY TRUST
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||
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By:
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/s/ Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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||
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Title:
Trustee
|
||
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XXX
XXXXX X. XXXXXX 0000
XXXXXXXXXX
CHARITABLE LEAD
ANNUITY
TRUST
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||
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By:
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/s/ Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
|
||
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Title:
Trustee
|
||
|
Shareholders’
Address
Xxxxx
X. Xxxxxx
c/x
Xxxxxx & Co., Inc.
00
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
Facsimile: (000)
000-0000
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||
[Signature
Page to Registration Rights Agreement]
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WEICHERT
ENTERPRISE LLC
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|||
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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||
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Title:
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President
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||
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Shareholder’s
Address
|
|||
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Weichert
Enterprise LLC
0000
Xxxxx Xxxxx 00
Xxxxxx
Xxxxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxx,
President
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|||
[Signature
Page to Registration Rights Agreement]
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XXXXX
VENTURES FUND LP
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|||
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By:
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XXXXX
VENTURES, LLC
|
||
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Its:
|
General
Partner
|
||
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By:
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/s/
Xxxx X. Xxxxx
|
||
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Name:
|
Xxxx
X. Xxxxx
|
||
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Title:
|
President
|
||
|
Shareholder’s
Address
|
|||
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Xxxxx
Ventures Fund LP
c/o
Keefe Ventures, LLC
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxx,
President
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|||
[Signature
Page to Registration Rights Agreement]
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ALDEN
GLOBAL VALUE RECOVERY
MASTER
FUND, L.P.
|
|||
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By:
AGVRF Master GP, LLC
|
|||
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By:
Alden Global Capital, its Service Provider
|
|||
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By:
|
/s/
Xxxxx Xxxxxx
|
||
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Name:
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Xxxxx
Xxxxxx
|
||
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Title:
|
Authorized
Signatory
|
||
|
Shareholder’s
Address
Alden
Global Value Recovery Master Fund, L.P.
c/o
Alden Global Capital
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxx Xxxxx, Vice
President
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[Signature
Page to Registration Rights Agreement]
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COUGAR
TRADING, LLC
|
|||
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By:
|
/s/
Xxxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
||
|
Title:
|
Sr.
Managing Member
|
||
|
Shareholder’s
Address
|
|||
|
Cougar
Trading, LLC
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxx
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[Signature
Page to Registration Rights Agreement]
