Annex C FORM OF REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT
EXHIBIT 20.4
Annex C
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of _______________, 200___ by and among
Waste Services, Inc., a corporation incorporated under the laws of the State of Delaware (the
“Company”), and Xxxxx Investment Associates VI, L.P., a Delaware limited partnership (“KIA”) and
KEP VI, LLC, a Delaware limited liability company (“KEP” and together with KIA, the “Investor”).
WHEREAS, the Company has entered into that certain Exchange and Redemption Agreement, dated as
of November 8, 2006 (the “Exchange and Redemption Agreement”) with the Investor, pursuant to which
the Company is issuing to the Investor shares of Common Stock of the Company in exchange for shares
of Series A Preferred Stock of the Company, on the terms, and subject to the conditions, set forth
in the Exchange and Redemption Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition to the closing of the
transaction provided for in the Exchange and Redemption Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Affiliate” shall have the meaning ascribed to such term in Rule 405 under the
Securities Act.
(b) “Common Stock” means the common stock of the Company, par value $.01 per share.
(c) “Closing Date” means the date of the closing of the issuance of Common Stock to the
investor pursuant to the Exchange and Redemption Agreement
(d) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.
(e) “Person” means any individual, partnership, limited liability company, joint
venture, corporation, association, trust or any other entity or organization.
(f) “Register,” “registered,” and “registration” refer to a registration effected by
preparing and filing a registration statement or similar document in compliance with the
Securities Act and the declaration or ordering of effectiveness of such registration
statement or document.
(g) “Registrable Securities” means (1) any Shares and (2) any Common Stock issued to
the Investor (or any assignee thereof in accordance with Section 12) as (or issuable upon
conversion or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in replacement of,
such Common Stock;
provided, however, that any Registrable Securities sold by the Investor
in a transaction in which the Investor’s rights under this Agreement are not assigned
pursuant to Section 12 below shall cease to be Registrable Securities from and after the
time of such sale. In addition, any securities shall cease to be Registrable Securities
from and after such time as they (x) are sold to the public in a registered public offering,
(y) are eligible for sale pursuant to Rule 144 under the Securities Act without restriction
on volume or manner of sale or (x) become freely tradable without restriction imposed by the
Securities Act. For purposes of determining whether any securities shall have ceased to be
Registrable Securities hereunder, such securities shall be deemed to be held by a person
that is a not an Affiliate of the Company.
(h) “SEC” means the United States Securities and Exchange Commission.
(i) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
(j) “Shares” means the shares of Common Stock issued to the Investor pursuant to the
Exchange and Redemption Agreement.
(k) “Violation” means any of the following statements, omissions or violations: (i)
any untrue statement or alleged untrue statement of a material fact contained in a
registration statement filed pursuant to this Agreement, including without limitation any
preliminary prospectus or final prospectus contained therein or any amendments or
supplements thereto or any documents filed under state securities or “blue sky” laws in
connection therewith, or (ii) the omission or alleged 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 such statements were made, not misleading.
2. Shelf Registration.
(a) The Company agrees that it shall file, within fifteen (15) days following the
Closing Date (the “Required Filing Date”), with the SEC a registration statement on Form S-3
under the Securities Act if the Company is then eligible to use such form, or if the Company
is not then eligible, any other SEC form which the Company is then eligible to use (any such
registration statement, a “Shelf Registration Statement”) for an offering to be made on a
delayed and continuous basis pursuant to Rule 415 thereunder, and or/any similar rule that
may be adopted by the SEC, to register the resale of any Registrable Securities outstanding
as of such date (including without limitation any Shares that are not freely tradable
without restriction imposed by the Securities Act by Persons who are not Affiliates of the
Company) by the Investor from time to time in accordance with the methods of distribution
elected by the Investor and set forth in such Shelf Registration Statement and, thereafter,
shall use its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act on or before 5:00 pm eastern time on the date
that is ninety (90) days after the Closing Date (the “Effective Date”).
(b) Notwithstanding the foregoing, the Company may postpone filing or having the Shelf
Registration Statement declared effective for a reasonable period not to exceed thirty (30)
consecutive trading days if the Board of Directors of the Company shall have determined in
good faith because of valid business reasons (not including avoidance of the Company’s
obligations hereunder), including without limitation the acquisition or divestiture of
assets, capital raising activities, pending corporate developments and similar events, that
postponing effectiveness is in the best interests of the Company, and prior to postponing
the effectiveness the Company
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provides the Investor with written notice of such postponement, which notice need not
specify the nature of the event giving rise to the postponement.
(c) The Company shall use its reasonable best efforts to: (i) to keep the Shelf
Registration Statement continuously effective under the Securities Act in order to permit
the prospectus forming a part thereof to be usable by the Investor until the earliest of (1)
the sale of all Registrable Securities registered under the Shelf Registration Statement;
(2) the expiration of the period referred to in Rule 144(k) of the Securities Act with
respect to all Registrable Securities held by Persons who are not Affiliates of the Company;
and (3) two years from the date upon which the Shelf Registration Statement is declared
effective under the Securities Act (such period being referred to herein as the
“Effectiveness Period”).
(d) The Company may suspend the use of the prospectus included in the Shelf
Registration Statement for a period not to exceed sixty (60) consecutive trading days if the
Board of Directors of the Company shall have determined in good faith because of valid
business reasons (not including avoidance of the Company’s obligations hereunder), including
without limitation the acquisition or divestiture of assets, capital raising activities,
pending corporate developments and similar events, that it is in the best interests of the
Company to suspend such use, and prior to suspending such use the Company provides the
Investor with written notice of such suspension (“Material Adverse Event Notice”), which
notice need not specify the nature of the event giving rise to the suspension (any period
during which such a suspension is in effect, a “Blackout Period”). Notwithstanding the
foregoing, the Company may not send more than two Material Adverse Event Notices to the
Investor in any 365-day period.
(e) In the event that the Investor is prevented from selling Registrable Shares through
the Shelf Registration Statement as a result of a Blackout Period declared by the Company,
the Effectiveness Period shall be extended by the number of days that the Investor is
prevented from making sales under the Shelf Registration Statement as a result of such
Blackout Period.
(f) If at any time following the filing of any Shelf Registration Statement, the
Investor desires to sell all or any portion of the Registrable Securities under such Shelf
Registration Statement in an underwritten offering, the Investor shall notify the Company of
such intent at least 15 days prior to any such sale (any such proposed sale, an
“Underwritten Take-Down Transaction”), and the Company shall prepare and file a prospectus
supplement, post-effective amendment to the Shelf Registration Statement and/or Exchange Act
reports incorporated by reference into the Shelf Registration Statement and take such other
actions as necessary to permit the consummation of any such Underwritten Take-Down
Transaction.
3. Demand Registration.
(a) If, at any time and during the time after the Closing Date, the Shelf Registration
Statement is not effective or otherwise available, the Investor may request in a written
notice to the Company (the “Request”) that the Company effect the registration under the
Securities Act of some or all of the Registrable Securities then owned by the Investor;
provided, however, that the Company will not be required to effect more than one
registration pursuant to this Section. Following the receipt of a Request, the Company
shall, subject to the limitations of this Section 3, use its commercially reasonable
efforts to effect, as soon as practicable, the registration under the Securities Act of all
Registrable Securities that the Investor requests to be registered.
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(b) If the Investor intends to distribute the Registrable Securities covered by its
request by means of an underwritten offering, it shall so advise the Company as a part of
its request made pursuant to this Section 3. In such event, the right of the
Investor to include its Registrable Securities in such registration shall be conditioned
upon the Investor’s participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. The Investor shall enter into
an underwriting agreement in customary form with the underwriter or underwriters selected
for such underwriting by the Investor (which underwriter or underwriters shall be reasonably
acceptable to the Company). Notwithstanding any other provision of this Section 3,
if the underwriter advises the Company that marketing factors require a limitation of the
number of securities to be underwritten (including Registrable Securities), then the Company
shall so advise the Investor,; provided, however, that the number of shares
of Registrable Securities to be included in such underwriting and registration will not be
reduced unless all other securities of the Company that are entitled by contract or
otherwise to be included therein are first entirely excluded from such underwriting and
registration. Any Registrable Securities excluded or withdrawn from such underwriting shall
be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company may postpone having a registration
statement pursuant to this Section 3 declared effective for a reasonable period not to
exceed thirty (30) consecutive trading days if the Board of Directors of the Company shall
have determined in good faith because of valid business reasons (not including avoidance of
the Company’s obligations hereunder), including without limitation the acquisition or
divestiture of assets, capital raising activities, pending corporate developments and
similar events, that postponing effectiveness is in the best interests of the Company, and
prior to postponing the effectiveness the Company provides the Investor with written notice
of such postponement, which notice need not specify the nature of the event giving rise to
the postponement.
4. Piggy-back Registration.
(a) If, at any time and during the time after the Closing Date, the Shelf Registration
Statement is not effective, and the Company proposes to file on its behalf and/or on behalf
of any of its security holders (the “demanding security holders”) a registration statement
under the Securities Act on any form (other than a registration statement on Form S-4 or S-8
or any successor form for securities to be offered in a transaction of the type referred to
in Rule 145 under the Securities Act or in connection with an exchange offer, or to
employees of Company pursuant to any employee benefit plan, respectively) for the general
registration of securities, it will give written notice to the Investor at least 30 days
before the initial filing with the SEC of such registration statement, which notice shall
set forth the proposed offering price and the intended method of disposition of the
securities proposed to be registered by Company. The notice shall offer to include in such
filing (and any qualification under blue sky or other state securities laws or other
compliance) the aggregate number of shares of Registrable Securities as the Investor may
request. If the Investor desires to include in any such registration statement all or any
part of the Registrable Securities held by it, the Investor shall, within twenty (20) days
after the above-described notice from the Company, so notify the Company in writing. If the
Investor decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, the Investor shall nevertheless continue to have
the right under this Section 4 to include any Registrable Securities in any subsequent
registration statement or registration statements as may be filed by the Company with
respect to offerings of its securities, all upon the terms and conditions set forth herein.
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(b) If the registration statement under which the Company gives notice under this
Section 4 is for an underwritten offering, the Company shall so advise the Investor. In
such event, the right of the Investor to be included in a registration pursuant to this
Section 4 shall be conditioned upon the Investor’s participation in such underwriting and
the inclusion of its Registrable Securities in the underwriting to the extent provided
herein. The Investor shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company (which underwriter
or underwriters shall be reasonably acceptable to the Investor). Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that marketing
factors require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to the Company;
second, to the demanding security holders on a pro rata basis; and third, to any stockholder
of the Company (other than the demanding security holders and including the Investor) on a
pro rata basis. If the Investor disapproves of the terms of any such underwriting, the
Investor may elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least ten (10) business days prior to the projected effective date
of the registration statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration. If the Investor is a
partnership or corporation, the partners, retired partners and stockholders of the Investor,
or the estates and family members of any such partners and retired partners and any trusts
for the benefit of any of the foregoing person shall be deemed to be a single “selling
Investor,” and any pro rata reduction with respect to such “selling Investor” shall be based
upon the aggregate amount of shares carrying registration rights owned by all entities and
individuals.
5. Obligations of the Company. Whenever required under this Agreement to effect or
maintain the registration of any Registrable Securities, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus 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.
(b) Furnish to the Investor such number of copies of such registration statement and of
each amendment and supplement thereto (in each case without exhibits unless requested by the
Investor), such number of copies of the prospectus contained in such registration statement
(including without limitation each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as the Investor may reasonably
request in order to facilitate the disposition of Registrable Securities owned by it.
(c) 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 states or
jurisdictions as shall be reasonably requested by the Investor, provided that the
Company shall not be required in connection therewith or as a condition thereto (i) to
qualify to do business in any state or jurisdiction where it would not otherwise be required
to qualify but for the requirements of this clause (c), or (ii) to file a general consent to
service of process in any such state or jurisdiction.
(d) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with the managing
underwriter of such offering; provided that, if the Company enters into an underwriting
agreement pursuant to this Section 5(d) or pursuant to Section 3(b) or otherwise in
connection
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with registrations hereunder, (i) such underwriting agreement shall be reasonably
satisfactory in substance and form to the underwriters, to the Investor and to the Company,
(ii) the Investor shall be a party to such underwriting agreement and may require that any
or all of the representations and warranties by, and the agreements on the part of, the
Company to and for the benefit of such underwriters be made to and for the benefit of the
Investor and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement shall also be conditions precedent to the
obligations of the Investor and (iii) the Investor shall not be required by any underwriting
agreement to make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding the Investor,
the ownership of the Investor’s Registrable Securities and the Investor’s intended method or
methods of disposition and any other representation required by law or to furnish any
indemnity to any Person which is broader than the indemnity furnished by the Investor
pursuant to Section 10(b).
(e) Notify the Investor 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
prospectus included in such registration statement, 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, in light of the circumstances under which such
statements were made, not misleading.
(f) Notify the Investor and its underwriters, if any, and confirm such advice in
writing: (i) when the registration statement has become effective, (ii) when any
post-effective amendment to the registration statement becomes effective and (iii) of any
request by the SEC for any amendment or supplement to the registration statement or
prospectus or for additional information.
(g) Notify the Investor if at any time the SEC should institute or threaten to
institute any proceedings for the purpose of issuing, or should issue, a stop order
suspending the effectiveness of the registration statement. Upon the occurrence of any of
the events mentioned in the preceding sentence, the Company will use its reasonable best
efforts to prevent the issuance of any such stop order or to obtain the withdrawal thereof
as soon as possible. The Company will advise the Investor promptly of any order or
communication of any public board or body addressed to the Company suspending or threatening
to suspend the qualification of any Registrable Securities for sale in any jurisdiction.
(h) In the case of an offering that is an underwritten public offering, (x) cause to be
delivered an opinion of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the Investor and the underwriters, and (y) cause
to be delivered, on the date that the registration statement with respect to such securities
becomes effective, a “comfort” letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by independent
certified public accountants to the underwriters, addressed to the underwriters, and, a
reaffirmation of such letter on the date that such Registrable Securities are delivered to
the underwriters for sale.
(i) As soon as practicable after the effective date of the registration statement, and
in any event within sixteen (16) months thereafter, have “made generally available to its
security holders” (within the meaning of Rule 158 under the Securities Act) an earnings
statement (which need not be audited) covering a period of at least twelve (12) months
beginning after the effective
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date of the registration statement and otherwise complying with Section 11(a) of the
Securities Act.
(j) List the Registrable Securities which are registered pursuant to this Agreement on
each national securities exchange or automated quotation system upon which the shares to be
registered are traded.
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any restrictive
legend and, at the Investor’s request, to cause the Company’s transfer agent to timely
record such Registrable Securities in book-entry form without transfer restrictions
(including, in each case, by providing the transfer agent with such certificates, opinion of
counsel or other documents as the Company’s transfer agent may require).
6. Amendments, Supplements to Prospectus. Immediately upon receipt of a notice referred to
in Section 5(g) hereof, the Investor agrees to (i) cease making sales of securities pursuant to any
then effective registration statement or any prospectus contained therein until it has received
from the Company an amendment or supplement to the registration statement or prospectus and (ii) to
promptly deliver to the Company any copies of the registration statement or such prospectus then in
its possession.
7. Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the Registrable Securities of
the Investor that the Investor shall promptly furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of its Registrable Securities.
8. Expenses of Registration. All expenses other than underwriting discounts and
commissions incurred in connection with registrations, filings or qualifications pursuant to
Section 2, 3 or 4, including without limitation all registration, filing and qualification fees,
printers’ fees, fees and expenses of counsel and accountants for the Company and the reasonable
fees and disbursements of one firm of counsel for the Investor, shall be borne by the Company, even
if such registrations, filings, or qualifications do not become effective.
9. Late Registration. If any registration statement required to be filed hereunder (x) has
not been filed by the Required Filing Date, (y) has not been declared effective by the SEC on or
before the Effective Date, or (z) is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded within ten (10)
days (the “Required Cure Date”) by a post-effective amendment to such registration statement that
cures such failure and that is itself immediately declared effective, the Company shall, on the
business day immediately following the Required Filing Date, the Effective Date or the Required
Cure Date, as the case may be, and each 30th day thereafter, make a payment to the
Investor as partial compensation for such delay (the “Late Registration Payments”) equal to one
percent (1%) of the aggregate purchase price of the Registrable Securities (calculated based on a
per share price of $9.50) not previously sold by the Investor until such registration statement is
filed or declared effective by the SEC, as the case may be; provided, however, that in no event
shall the payments made pursuant to this Section 8, if any, exceed in the aggregate twelve percent
(12%) of such aggregate price. Late Registration Payments will be prorated on a daily basis during
each 30 day period and will be paid to the Investor by wire transfer or check within five business
days after the earlier of (i) the end of each thirty day period following the Effective Date,
Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of such
registration statement.
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10. Indemnification. In the event any Registrable Securities are included in a
registration statement under this Agreement:
(a) The Company will indemnify and hold harmless the Investor, its heirs, personal
representatives and assigns, each of the Investor’s officers, directors, partners, employees
and affiliates, any underwriter (as defined in the Securities Act) for the Investor for the
offering and each Person, if any, who controls the Investor or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal, state, Canadian, or provincial securities law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon a Violation; and the Company will pay to each such indemnified party, as
incurred, any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section
10(a) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in any such
case to a particular indemnified party for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished expressly for use in connection
with such registration by such indemnified party.
(b) The Investor will indemnify and hold harmless the Company, each of its directors,
each of its officers, each Person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter for the offering, any other stockholder (and any
affiliate thereof) selling securities in such registration statement and any controlling
Person of any such underwriter or other stockholder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing Persons may become subject,
under the Securities Act, the Exchange Act or other federal, state, Canadian, or provincial
securities law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to the extent
(and only to the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by the Investor expressly for use in connection with such
registration; and the Investor will pay, as incurred, any legal or other expenses reasonably
incurred by any Person intended to be indemnified pursuant to this Section 10(b), in
connection with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 10(b) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Investor,
which consent shall not be unreasonably withheld; provided, further, that in
no event shall the liability of the Investor under this Section 10(b) or otherwise in
connection with the offering exceed the net proceeds from the offering received by the
Investor.
(c) Promptly after receipt by an indemnified party under this Section 10 of notice of
the commencement of any action (including without limitation any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right
to retain its own counsel (but no more than one separate counsel, plus any required local
counsel, with respect to all indemnified parties) with the
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fees and expenses to be paid by the indemnifying party, if in the reasonable opinion of
counsel to an indemnified party, representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or potential
conflicts of interests between, or different defenses available to, such indemnified party
and any other party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the indemnified
party under this Section 10 except if, and only to the extent that, the indemnifying party
is actually prejudiced thereby.
(d) The obligations of the Company and the Investor under this Section 10 shall survive
the completion of any offering of Registrable Securities in a registration statement under
this Agreement.
(e) Any indemnity agreements contained herein shall be in addition to any other rights
to indemnification or contribution which any indemnified party may have pursuant to law or
contract and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and the indemnified
party on the other as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. 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. Notwithstanding anything to the contrary in this Section 10, the
Investor shall not be required, pursuant to this Section 10 or otherwise in connection with
the offering, to contribute any amount in excess of the net proceeds received by the
Investor from the sale of Common Stock in the offering to which the losses, claims, damages,
liabilities or expenses of the indemnified party relate.
11. Reports Under the Exchange Act. With a view to making available to the Investor the
benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may
at any time permit the Investor to sell securities of the Company to the public without
registration, for so long as any Registrable Securities remain outstanding, the Company agrees to:
(a) make and keep public information available, as those terms are understood and
defined in Rule 144 under the Securities Act;
(b) remain registered under the Exchange Act and file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to the Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the Company, and
(iii) such other
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information as may be reasonably requested in availing the Investor of any rule or
regulation of the SEC which permits the selling of any such securities without registration.
12. Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Agreement may be assigned in whole or in part to any Person
acquiring Registrable Securities from the Investor in compliance with the applicable provisions of
any relevant agreement between the Investor and the Company, provided that such transferee
or assignee delivers to the Company a written instrument by which such transferee or assignee
agrees to be bound by the obligations imposed on the Investor under this Agreement to the same
extent as if such transferee or assignee was a party hereto; and, upon such an assignment, all
references herein to the Investor shall be deemed to constitute references to such transferee or
assignee.
13. Limitation on Subsequent Registration Rights. After the date of this Agreement, the
Company shall not, without the prior written consent of the Investor as long as there are
Registrable Securities outstanding, enter into any agreement with any investor or prospective
investor of securities of the Company that would grant such investor registration rights senior to
those granted to the Investor hereunder.
14. Amendment; Waiver. Any provision of this Agreement may be amended only with the
written consent of the Company and the Investor. The observance of any provision of this Agreement
by the Company may be waived (either generally or in a particular instance and either retroactively
or prospectively) only with the written consent of the Investor. The observance of any provision
of this Agreement by the Investor may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the written consent of the Company. Any amendment
or waiver effected in accordance with this Section 14 shall be binding upon the Investor, each
future holder of Registrable Securities, and the Company. Without limiting the generality of the
foregoing, the Company shall not take any action that adversely affects the rights of the Investor
with respect to this Agreement without obtaining the prior written consent of the Investor.
15. Specific Performance; Remedies. Each party acknowledges and agrees that the other
parties would be damaged irreparably if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement
and to enforce specifically this Agreement and its provisions in any action or proceeding
instituted in any court of the United States or any state thereof having jurisdiction over the
parties and the matter, in addition to any other remedy to which they may be entitled, at law or in
equity. Except as expressly provided herein, the rights, obligations and remedies created by this
Agreement are cumulative and in addition to any other rights, obligations or remedies otherwise
available at law or in equity. Except as expressly provided herein, nothing herein will be
considered an election of remedies.
16. Changes in Registrable Securities. If, and as often as, there are any changes in the
Registrable Securities by way of stock split, stock dividend, combination or reclassification, or
through merger, consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so
that the rights and privileges granted hereby shall continue with respect to the Registrable
Securities as so changed. Without limiting the generality of the foregoing, the Company will
require any successor by merger or consolidation to assume and agree to be bound by the terms of
this Agreement, as a condition to any such merger or consolidation.
17. Entire Agreement. This Agreement constitutes the full and entire understanding and
agreement among the parties with regard to the subject matter hereof. Nothing in this Agreement,
express or implied, is intended to confer upon any Person, other than the parties hereto and their
respective
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successors and permitted assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
18. Governing Law. This Agreement shall be governed in all respects by the laws of the
State of Delaware as such laws are applied to agreements between Delaware residents entered into
and to be performed entirely within Delaware.
19. Successors and Assigns. The provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns (as provided in Section 12), heirs, executors and
administrators of the parties hereto.
20. Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon receipt by the party
to be notified (including by facsimile, receipt confirmed) or three (3) days after being sent by
registered or certified mail, postage prepaid and addressed to the party to be notified (a) if to
the Investor, at its address set forth in the Exchange and Redemption Agreement or at such other
address as the Investor shall have furnished to the Company in writing, or (b) if to the Company,
at its address set forth in the Exchange and Redemption Agreement, or at such other address as the
Company shall have furnished to the parties in writing.
21. Severability. Any invalidity, illegality or limitation on the enforceability of this
Agreement or any part hereof as to any party, whether arising by reason of the law of the
respective party’s domicile or otherwise, shall in no way affect or impair the validity, legality
or enforceability of this Agreement with respect to other parties. If any provision of this
Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
22. Titles and Subtitles. The titles and subtitles of the Sections of this Agreement are
for convenience of reference only and are not to be considered in construing this Agreement.
23. Delays or Omissions Remedies Cumulative. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach or default of another
party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or character by a party of any breach or
default under this Agreement, or any waiver by a party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent specifically set forth in
writing and that all remedies, either under this Agreement, or by law or otherwise afforded to a
party, shall be cumulative and not alternative.
24. Counterparts. This Agreement may be executed in any number of counterparts (including
by facsimile), each of which shall be deemed an original, but all of which together shall
constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the
date first above written.
| WASTE SERVICES, INC. |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| INVESTOR: XXXXX INVESTMENT ASSOCIATES VI, L.P. |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| KEP VI, LLC |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
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