Exhibit 10.11
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into the 30th day of August, 2002 by and among CapitalSource Holdings
LLC, a Delaware limited liability company, and the holders of interests in the
Company who are parties hereto.
The parties hereto agree as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms have the following
meanings when used herein:
(a) "Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which banking institutions in New York, New York are
authorized by law, regulation or executive order to close.
(b) "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(c) "Company" means CapitalSource Holdings LLC, and any Successor
Entities.
(d) "Demand Registration" means any registration of Registrable
Securities effected pursuant to Section 2 hereof.
(e) "Effective Date" means the effective date of the registration
statement with respect to a Qualified IPO under the Securities Act.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended (or any similar successor federal statute), and the rules and
regulations thereunder, as in effect from time to time.
(g) "Form S-3 Registration" means any registration of Registrable
Securities effected pursuant to Section 4.
(h) "Holder" means a holder of Registrable Securities who is a party to
this Agreement, including such successors, assigns and transferees as acquire
Registrable Securities, directly or indirectly, from such Person.
(i) "Holders' Counsel" shall have the meaning set forth in Section 7.
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(j) "Majority Registered Holders" means in the case of any registration
statement, the Holders of a majority of the Registrable Securities proposed to
be covered (or so covered) in such registration statement.
(k) "Majority Sellers" means (i) in the case of any offering or
proposed offering, the Holders of a majority of the Registrable Securities so
offered or proposed to be so offered, and (ii) in the case of any other offering
or proposed offering pursuant to any Registration, the Majority Registered
Holders of the applicable registration statement.
(l) "Management Securities" means the Registrable Securities held by a
Person listed on Annex B hereto and any of such Person's successors, assigns and
transferees who acquire Registrable Securities, directly or indirectly, from
such Person.
(m) "Non-Management Securities" means all Registrable Securities that
are not Management Securities.
(n) "Person" means any individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture, or other entity, or a government or
any political subdivision or agency.
(o) "Piggyback Registration" means any registration of Registrable
Securities effected pursuant to Section 3 hereof.
(p) "Qualified IPO" means an underwritten public offering by the
Company of its equity securities having an aggregate initial public offering
price to the public of at least Twenty-Five Million Dollars ($25,000,000).
(q) "Registrable Securities" means (i) the Units held by a Holder from
time to time and (ii) any securities issued or issuable in respect of or in
exchange for any of the Units referred to in clause (i) or into which such Units
are converted or exchanged and includes, but is not limited to, Securities that
are transferred to the shareholders, partners or members of such Holder. For
purposes of this Agreement, a Registrable Security ceases to be a Registrable
Security when (1) it has been effectively registered under the Securities Act
and sold or distributed to any Person pursuant to an effective registration
statement covering it, (2) it has been sold or distributed to any Person
pursuant to Rule 144, (3) in the case of a Holder which is a limited
partnership, limited liability company or other entity and which makes an
affirmative election that its Registrable Securities shall no longer be
Registrable Securities in contemplation of a proposed distribution to such
Holder's partners or members, when they have been distributed to the partners or
members of such Holder, or (4) when they have been repurchased by the Company or
any Subsidiary. The affirmative election referred to in clause (3) shall be
evidenced by written notice to such effect delivered to the Company.
Notwithstanding that Registrable Securities have ceased to be Registrable
Securities pursuant to clause (3), the Holder of such securities shall continue
to be bound by the provisions of Section 5(a) as though such securities remained
Registrable Securities (i) with respect to the initial public offering by the
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Company and (ii) thereafter until such securities are eligible for sale under
paragraph (k) of Rule 144.
(r) "Registration" means any Demand Registration, Piggyback
Registration or Form S-3 Registration.
(s) "Regulation M" means Regulation M promulgated by the Commission
under the Exchange Act, as such Regulation may be amended from time to time, or
any similar successor rule or regulation that may be promulgated by the
Commission.
(t) "Rule 144", "Rule 145", "Rule 415", "Rule 424" and "Rule 462" mean,
respectively, Rule 144, Rule 145, Rule 415, Rule 424 and Rule 462, each
promulgated by the Commission under the Securities Act, in each case as amended
from time to time, or any similar successor rule thereto that may be promulgated
by the Commission.
(u) "Securities Act" means the Securities Act of 1933, as amended (or
any similar successor federal statute), and the rules and regulations
thereunder, as the same are in effect from time to time.
(v) "Successor Entity" means, with respect to the Company, a Person who
succeeds to its business by means of merger, reorganization, consolidation,
purchase of assets or equity securities or otherwise or who becomes the owner of
its business.
(w) "Unit" means a unit of ownership interest in the Company.
2. Demand Registrations.
(a) Demand. At any time after six months following the Effective Date,
upon written notice to the Company from a Holder (the "Initiating Holder") of
Registrable Securities requesting that the Company effect, pursuant to this
Section 2, the registration of such Initiating Holder's Registrable Securities
under the Securities Act having a market value at the time of such notice of not
less than $25,000,000 (which notice shall specify the Registrable Securities so
requested to be registered, the proposed amounts thereof (which shall be
Registrable Securities having a market value of at least $25,000,000) and the
intended method or methods of disposition by such Initiating Holders (including
whether or not the proposed offering is to be underwritten)), the Company shall
promptly (but in any event within 20 days) give written notice of such requested
registration to all Holders, and thereupon the Company shall, as expeditiously
as possible, use its best efforts to effect the registration under the
Securities Act of:
(A) the Registrable Securities that the Initiating Holder has
requested the Company to register, for disposition in accordance with
the intended method or methods of disposition stated in their notice to
the Company; and
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(B) all other Registrable Securities the Holders of which
shall have made a written request to the Company for registration
thereof (which request shall specify such Registrable Securities and
the proposed amounts thereof) within 20 days after the receipt of such
written notice from the Company,
all to the extent requisite to permit the disposition by Holders of the
securities then constituting Registrable Securities so to be registered;
provided, however, notwithstanding the foregoing provisions of this Section
2(a), the affiliated Holders listed on Annex A (the "Affiliated Entities") shall
be treated as one Holder for purposes of determining the amount to be registered
pursuant to this Section 2(a) and if the Holders listed on Annex A request that
the Company register for sale all the remaining aggregate Registrable Securities
then held by such Holders, the market value of such securities shall be not less
than $10,000,000, rather than $25,000,000 as specified above.
(b) Number of Demands; Frequency; Duration. Holders shall have the
right to four Demand Registrations under this Section 2. The Company shall not
be required to effect a Demand Registration pursuant to this Section 2: (i) if
it shall have so effected a Demand Registration during the previous six months;
(ii) if the Initiating Holder shall have requested such Demand Registration more
than three times (excluding any Registrations under Section 2(c)) previously
(which Demand Registrations became effective or were abandoned pursuant to
Section 2(d)), or (iii) after the sixth anniversary of the Effective Date;
provided, however, that a Demand Registration shall not be deemed to have been
effected for purposes of Section 2(b)(i) if the applicable registration
statement has not been declared effective and kept effective until the earlier
of (i) six months following the date on which such registration statement was
declared effective and (ii) the sale pursuant to such registration statement of
the Registrable Securities covered thereby.
(c) Inclusion of Other Securities; Cut-Back. The Company shall not
register any securities other than (i) for its own account, or (ii) Registrable
Securities, in any Demand Registration without the prior written consent of the
Majority Sellers in such Demand Registration. If any securities other than
Registrable Securities are so registered, (i) securities to be registered by the
Company for sale for its own account with aggregate estimated net proceeds
therefrom to the Company (at the time of filing such registration statement) of
up to $50,000,000 shall have absolute priority over securities requested to be
registered by Holders or third parties, (ii) Registrable Securities of Holders
shall have absolute priority over (A) any securities to be registered by the
Company for sale for its own account other than securities referred to in clause
(i) and (B) securities requested to be registered by third parties, and (iii)
the Holders of Registrable Securities included in such registration will not be
deemed to have used a Demand Registration under this Section 2 with respect to
such registration.
Notwithstanding the provisions of Section 2(a) hereof, if the managing
underwriter or underwriters of a proposed underwritten offering of Registrable
Securities pursuant to Section 2(a) hereof (which may also include an offering
of securities for the account of the Company), deliver written advice to the
Holders requesting inclusion of their Registrable Securities stating that the
total amount or kind of securities that they and any other Persons (other than
the Company) seek to include in such offering would materially and adversely
affect the
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success of such offering, then the amount or kind of Registrable Securities to
be offered for the accounts of Holders shall be reduced pro rata (subject to the
provisions of the next paragraph) based on the number of Registrable Securities
requested to be included in such Registration by the Holders to the extent
necessary to reduce the total amount of Registrable Securities to be included in
such offering to that recommended by such managing underwriter or underwriters
(which amount may be zero); provided, however, that if the amount of any kind of
Registrable Securities to be offered for the accounts of Holders is reduced in
accordance with this Section 2(c), the Company may not include in such offering
any securities other than (i) Registrable Securities and (ii) securities, if
any, that the Company is offering for sale for its own account in a primary
underwritten offering. If the number of Registrable Securities to be included in
a registration pursuant to this Section 2 is reduced by more than two-thirds
(2/3) of the number of Registrable Securities requested to be offered pursuant
to this Section 2, the Holders shall be granted an additional right to Demand
Registration under this Section 2.
If Management Securities are proposed to be included in a Registration
in which the number of Registrable Securities to be included therein is the
subject of a cut-back upon the advice of the managing underwriter or
underwriters, then as between the Holders of Management Securities and the
Holders of Non-Management Securities, the proration of Registrable Securities
shall be made in accordance with this paragraph. The Holders of Non-Management
Securities shall be entitled to offer one hundred and twenty-five percent (125%)
of the number of Registrable Securities which they would have been entitled to
offer but for the provisions of this paragraph, and the number of Management
Securities which the Holders thereof shall be entitled to offer shall be reduced
pro rata by the number of additional Non-Management Securities included in the
offering pursuant to the provisions of this paragraph.
(d) Company's Right to Delay Registration. Notwithstanding the
foregoing, the Company may delay filing a registration statement, and may
withhold its efforts to cause the registration statement to become effective,
for the minimum period necessary in the reasonable good faith judgment of the
Company, if the Company determines in reasonable good faith that such
registration might (i) interfere with or affect the negotiation or completion of
any material transaction that is then being actively contemplated by the Company
(whether or not a final decision has been made to undertake such transaction) at
the time the right to delay is exercised, or (ii) involve initial or continuing
disclosure obligations that might not be in the best interests of the holders of
the Company's equity securities. Any time the Company exercises its right to
delay the filing of a registration statement or to withhold its efforts to cause
a registration statement to become effective, the period of time when Holders
hereunder have the right to cause the Company to effect a Demand Registration as
provided in Section 2(b) shall be extended during the period of such delay.
3. Piggyback Registrations.
(a) Effective Registration. If the Company proposes to file a
registration statement under the Securities Act (for its own account or for the
account of others and including, without limitation, the registration statement
in connection with a Qualified IPO) with respect to any class of equity
securities (other than in connection with the registration of equity securities
issued or issuable pursuant to an employee equity option, purchase, bonus or
similar
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plan or pursuant to a merger, exchange offer or transaction of the type
specified in Rule 145(a) under the Securities Act) at any time prior to the
sixth anniversary of the Effective Date, then the Company shall give written
notice of such proposed filing to the Holders at least 20 days before the
anticipated filing date, and such notice shall offer the Holders the opportunity
to register such amount of Registrable Securities as each such Holder may
request. The Company shall use its reasonable good faith efforts to cause the
managing underwriter or underwriters of a proposed underwritten offering to
permit the inclusion therein of any Registrable Securities the Holders of which
request, within 15 days after receiving written notice of the proposed filing
from the Company, such inclusion, on the same terms and conditions as any
similar securities of the Company so included. Any Holder's request for such
inclusion may be withdrawn, in whole or in part, at any time prior to the
effective date of the registration statement for such offering.
(b) Cut-Backs. Notwithstanding the provisions of Section 3(a) hereof,
if the managing underwriter or underwriters of a proposed underwritten offering
as described in such Section 3(a) deliver written advice to the Holders
requesting inclusion of their Registrable Securities stating that the total
amount or kind of securities that they and any other Persons seek to include in
such offering would materially and adversely affect the success of such
offering, then the amount or kind of Registrable Securities to be offered for
the accounts of Holders shall be reduced pro rata based on the number of
Registrable Securities then requested to be included by the Holders to the
extent necessary to reduce the total amount of Registrable Securities to be
included in such offering to that recommended by such managing underwriter or
underwriters (which amount may be zero); provided, however, that if the amount
of any kind of Registrable Securities to be offered for the accounts of Holders
is reduced in accordance with this Section 3(b), the Company may not include in
such offering any securities other than (i) Registrable Securities and (ii)
securities, if any, that the Company is offering for sale for its own account in
a primary underwritten offering.
If Management Securities are proposed to be included in a Registration in
which the number of Registrable Securities to be included therein is the subject
of a cut-back upon the advice of the managing underwriter or underwriters, then
as between the Holders of Management Securities and the Holders of
Non-Management Securities, the proration of Registrable Securities shall be made
in accordance with this paragraph. The Holders of Non-Management Securities
shall be entitled to offer one hundred and twenty-five percent (125%) of the
number of Registrable Securities which they would have been entitled to offer
but for the provisions of this paragraph, and the number of Management
Securities which the Holders thereof shall be entitled to offer shall be reduced
pro rata by the number of additional Non-Management Securities included in the
offering pursuant to the provisions of this paragraph.
4. Form S-3 Registration.
(a) Effective Registration. If the Company becomes eligible to use Form
S-3 for resale of securities under the Securities Act or a comparable successor
form, the Company shall use its best efforts to continue to qualify at all times
for registration on Form S-3 or such successor form. At any time after the
Company becomes eligible to use Form S-3 or such successor form, upon written
notice to the Company from Holders holding Registrable Securities having a
market value at the time of such notice of not less than $10,000,000 shall have
the right
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to request and have effected a registration of Registrable Securities on Form
S-3 or such successor form for a public offering of Registrable Securities so
long as Registrable Securities having a market value of at least $10,000,000 at
the time of such notice are proposed to be included in such registration. The
Holders shall have an unlimited number of Form S-3 Registrations under this
Section 4. Each such notice shall be in writing and shall state the number of
shares of Registrable Securities to be disposed of and the intended method or
methods of disposition by such Holders. The Company shall use its best efforts
to cause the registration statement or statements filed pursuant to this Section
to remain effective until the earlier of (A) the date on which all Registrable
Securities included in the registration statement shall have been sold and (B)
the date which is six (6) months following the effective date of the applicable
registration statement.
(b) Inclusion of Other Securities; Cut-Back; Company's Right
to Delay Registration. A registration of Registrable Securities on Form S-3
pursuant to this Section 4 shall not count as a "Demand Registration" for
purposes of determining the number of Demand Registrations a Holder is entitled
to pursuant to Section 2, but each such registration shall be treated as a
Demand Registration for all other purposes of Section 2.
5. Holdback Agreements.
(a) Restrictions on Public Sales by Holders of Registrable Securities.
To the extent not inconsistent with applicable law, each Holder of Registrable
Securities eligible for inclusion in a registration statement that is timely
notified in writing of such right by the managing underwriter or underwriters of
any securities being registered in an underwritten offering (other than pursuant
to an employee equity option, purchase, bonus or similar plan, pursuant to a
merger, exchange offer or a transaction of the type specified in Rule 145(a)
under the Securities Act), shall not (if so requested by such managing
underwriter or underwriters and provided that all beneficial owners of five
percent (5%) or more of the Company's securities are likewise restricted) effect
any public sale or distribution (including a sale pursuant to Rule 144) of any
Registrable Securities that are similar to any such securities or any
Registrable Securities convertible into or exchangeable or exercisable for any
such securities, during the period so requested, not to exceed the 180-day
period beginning on, the effective date of the applicable registration
statement, except as part of such registration. Notwithstanding anything to the
foregoing, nothing in this Agreement shall prohibit any of the Holders from
selling their Registrable Securities in a private transaction. If there is a
waiver by a managing underwriter or underwriters of any restriction pursuant to
this Section 5(a) with respect to any beneficial owner of five percent (5%) or
more of the Company's securities, then such waiver shall automatically apply to
each Holder of Registrable Securities.
(b) Restrictions on Sales by the Company. If so requested by the
managing underwriter or underwriters, the Company shall not effect any sale of
any securities of the Company similar to any Registrable Securities being
offered in an underwritten offering under a registration statement filed
pursuant to this Agreement or any securities of the Company convertible into or
exchangeable or exercisable for any such Registrable Securities, during the
period so requested, not to exceed the 180-day period beginning on, the
effective date of the
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applicable registration statement, except as part of such registration or
pursuant to employee benefit plans maintained by the Company at the beginning of
such restricted period.
6. Registration Procedures.
(a) Company Procedures. Whenever the Company is required by this
Agreement to effect the registration of any Registrable Securities under the
Securities Act pursuant to a registration statement, the Company shall use its
best efforts to effect each such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall, as soon as
practicable:
(i) prepare and file with the Commission (and shall use its best
efforts to file the same no later than 45 days after the request for
registration made in accordance with the Agreement) the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to be declared effective as soon as
practicable and to remain continuously effective for the time period required by
this Agreement to the extent permitted under the Securities Act, provided that
as soon as practicable but in no event later than three Business Days before
filing such registration statement, any related prospectus or any amendment or
supplement thereto (other than any amendment or supplement made solely as a
result of incorporation by reference of documents filed with the Commission
subsequent to the filing of such registration statement or a registration
statement filed pursuant to Rule 462), the Company shall deliver to the Holders,
the Holders' Counsel and the underwriters, if any, copies of all such documents
proposed to be filed, which documents shall be subject to the review of such
Holders, the Holders' Counsel and underwriters; the Company shall not file any
registration statement or amendment thereto or any prospectus or any supplement
thereto (other than any amendment or supplement made solely as a result of
incorporation by reference of documents filed with the Commission subsequent to
the filing of such registration statement) to which the managing underwriters of
the applicable offering, if any, or the Majority Registered Holders shall have
reasonably objected in writing within two Business Days after receipt of such
documents to the effect that such registration statement or amendment thereto or
prospectus or supplement thereto does not comply in all material respects with
the requirements of the Securities Act (provided that the foregoing shall not
limit the right of any Holder whose Registrable Securities are covered by a
registration statement to reasonably object, within two Business Days after
receipt of such documents, to any particular information that is to be contained
in such registration statement, amendment, prospectus or supplement and relates
specifically to such Holder, including, without limitation, any information
describing the manner in which such Holder acquired such Registrable Securities
and the intended method or methods of distribution of such Registrable
Securities), and if the Company is unable to file any such document due to the
objections of such underwriters or such Holders, the Company shall use its best
efforts to cooperate with such underwriters and Holders to prepare, as soon as
practicable, a document that is responsive in all material respects to the
reasonable objections of such underwriters and Holders;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such
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registration statement continuously effective and current for the period
required by this Agreement to the extent permitted under the Securities Act; and
cause each related prospectus to be supplemented by any prospectus supplement as
may be required, and as so supplemented to be filed pursuant to Rule 424; and
otherwise comply with the provisions of the Securities Act as may be necessary
to facilitate the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended method or methods of disposition by the selling Holders thereof set
forth in such registration statement or such prospectus or prospectus
supplement;
(iii) notify the Holders and the managing underwriters, if any, of
the applicable offering (providing, if requested by any such Persons,
confirmation in writing) as soon as practicable after becoming aware of: (A) the
filing of any prospectus or prospectus supplement or the filing or effectiveness
(or anticipated date of effectiveness) of such registration statement or any
post-effective amendment thereto; (B) any request by the Commission for
amendments or supplements to such registration statement or the related
prospectus or for additional information; (C) the issuance by the Commission of
any stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (D) the receipt by the
Company of any notification with respect to the suspension of the qualification
or registration (or exemption therefrom) of any Registrable Securities for sale
in any jurisdiction in the United States or the initiation or threatening of any
proceeding for such purposes; or (E) the happening of any event that makes any
statement made in such registration statement or in any related prospectus,
prospectus supplement, amendment or document incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
such registration statement or in any such prospectus, supplement, amendment or
other such document so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus in
the light of the circumstances under which they were made) not misleading;
(iv) make every reasonable effort to obtain at the earliest possible
moment the withdrawal of any order or other action suspending the effectiveness
of any such registration statement or suspending the qualification or
registration (or exemption therefrom) of the Registrable Securities for sale in
any jurisdiction;
(v) if reasonably requested by the managing underwriters, if any, of
the applicable offering, or by the Majority Sellers, as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as such underwriters or the Majority Sellers, as the case may be,
agree should be included therein relating to the sale and offering of the
applicable Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold to any
underwriters, the purchase price being paid therefor by any such underwriters
and any other terms of the offering of the Registrable Securities; and make all
required filings of such prospectus supplement or post-effective amendment as
soon as practicable following receipt of notice of the matters to be
incorporated therein;
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(vi) as soon as practicable after filing such documents with the
Commission, furnish to the Holders, the Holders' Counsel and each of the
underwriters, if any, without charge, at least one manually signed or conformed
copy of such registration statement and any post-effective amendment thereto,
including financial statements and schedules; and as soon as practicable after
the request of any Holder, the Holders' Counsel or underwriter, furnish to such
Holder, the Holders' Counsel or underwriter, as the case may be, at least one
copy of any document incorporated by reference in such registration statement or
in any related prospectus, prospectus supplement or amendment, together with all
exhibits thereto (including those previously furnished or incorporated by
reference);
(vii) deliver to the Holders, the Holders' Counsel and to each of
the underwriters, if any, without charge, as many copies of the prospectus or
prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; subject to Section
6(b)(i) hereof, the Company consents to the use of any such prospectus or any
amendment or supplement thereto by the Holders and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
any such prospectus or any amendment or supplement thereto;
(viii) prior to any public offering of Registrable Securities,
register or qualify (or obtain an exemption therefrom), or cooperate with the
Holders, the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption therefrom) of, such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions in the United States as the Holders or the underwriters,
if any, shall reasonably request in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period during which
such registration statement is required to be kept effective pursuant to this
Agreement; and do any and all other acts and things reasonably necessary or
advisable to facilitate the disposition in such jurisdictions of the Registrable
Securities covered by such registration statement; provided that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it would not be required to qualify but for this Section 6(a)(viii);
(ix) cooperate with Holders participating in such registration and
the underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold; and enable such
Registrable Securities to be in such denominations and registered in such names
as the underwriters, if any, may request at least two Business Days prior to any
sale of Registrable Securities to the underwriters;
(x) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be reasonably
necessary to enable the Holders or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xi) as soon as practicable after the occurrence of any event
described in Section 6(a)(iii)(E) hereof, prepare a supplement or post-effective
amendment to such registration statement or to the related prospectus or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of
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the Registrable Securities being sold thereunder, such prospectus shall not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading; if any event
described in Section 6(a)(iii)(B) hereof occurs, use its best efforts to
cooperate with the Commission to prepare, as soon as practicable, any amendment
or supplement to such registration statement or such related prospectus and any
other additional information, or to take other action that may have been
requested by the Commission;
(xii) use its best efforts to cause the Registrable Securities
covered by such registration statement to be listed on each securities exchange
(or quotation system operated by a national securities association) on which the
equity securities of the Company of the same type and class as the Registrable
Securities are then listed (or included), if so requested by the Majority
Registered Holders or the underwriters, if any, and enter into customary
agreements including, if necessary, a listing application and indemnification
agreement in customary form, and provide a transfer agent for such Registrable
Securities no later than the effective date of such registration statement; use
its best efforts to cause any other Registrable Securities covered by such
registration statement to be listed (or included) on each securities exchange
(or quotation system operated by a national securities association) on which
securities of the same class and series, if any, are then listed (or included)
(or on any exchange or quotation system on which any Person other than a Holder
shall have the right to have securities of the same class and series, if any,
listed or included), if so requested by the Majority Registered Holders or the
underwriters, if any, and enter into customary agreements including, if
necessary, a listing application and indemnification agreement in customary
form, and, if necessary, provide a transfer agent for such securities no later
than the effective date of such registration statement;
(xiii) enter into customary agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form for the
managing underwriters with respect to issuers of similar market capitalization
and reporting and financial histories) and take all such other reasonable
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities included in such registration
statement and, in the case of an underwritten offering: (A) make representations
and warranties to each Holder of Registrable Securities participating in such
offering and to each of the underwriters, in such form, substance and scope as
are customarily made to the managing underwriter or underwriters by issuers of
similar market capitalization and reporting and financial histories and confirm
the same to the extent customary if and when requested; (B) obtain opinions of
counsel to the Company and updates thereof addressed to each Holder of
Registrable Securities participating in such offering and to each of the
underwriters, such opinions and updates to be in customary form and covering the
matters customarily covered in opinions obtained in underwritten offerings by
the managing underwriter or underwriters for issuers of similar market
capitalization and reporting and financial histories; (C) obtain "comfort"
letters and updates thereof from the Company's independent certified public
accountants addressed to each Holder of Registrable Securities participating in
such offering and to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "comfort" letters
to the managing underwriter or underwriters in connection with underwritten
offerings by them for issuers of similar market capitalization and reporting and
financial histories; (D) provide, in the underwriting agreement to be entered
into in connection with such offering, indemnification provisions and procedures
no less favorable than those set forth in
11
Section 8 hereof with respect to all parties to be indemnified pursuant to such
Section 8; and (E) deliver such customary documents and certificates as may be
reasonably requested by the Majority Sellers and the managing underwriter or
underwriters to evidence compliance with this paragraph (xiii) and with any
customary conditions contained in the underwriting agreement entered into by the
Company in connection with such offering;
(xiv) in the case of any non-underwritten offering: (A) obtain an
opinion of counsel to the Company at the time of effectiveness of such
registration statement covering such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such registration statement
(other than by reason of incorporation by reference of documents filed with the
Commission) addressed to each Holder of any Registrable Securities covered by
such registration statement, covering matters that are no more extensive in
scope than would be customarily covered in opinions obtained in underwritten
offerings by issuers with similar market capitalization and reporting and
financial histories; (B) obtain a "comfort" letter from the Company's
independent certified public accountants at the time of effectiveness of such
registration statement and, upon the request of the Majority Sellers, updates
thereof, in each case addressed to each Holder of Registrable Securities
participating in such offering and covering matters that are no more extensive
in scope than would be customarily covered in "comfort" letters and updates
obtained in underwritten offerings by issuers with similar market capitalization
and reporting and financial histories; and (C) deliver a certificate of a senior
executive officer of the Company at the time of effectiveness of such
registration statement and, upon the request of the Majority Sellers, updates
thereof, such certificates to cover matters no more extensive in scope than
those matters customarily covered in officers' certificates delivered in
connection with underwritten offerings by issuers with similar market
capitalization and reporting and financial histories;
(xv) make available, for inspection by the Holders of the
Registrable Securities included in such registration, any underwriter
participating in any disposition of Registrable Securities pursuant to such
registration statement, and any attorney, accountant or other representative
retained by such selling Holders or by any such underwriter (subject to, if so
requested by the Company, appropriate confidentiality agreements), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, Managers and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney,
accountant or other representative in connection with such registration;
(xvi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission relating to such registration and the
distribution of the securities being offered (including, without limitation,
Regulation M, with respect to which the Company shall also use its best efforts
timely to apprise each Holder of any bids and purchases by the Company, and of
any known bids and purchases by each "affiliated purchaser" (as defined in
Regulation M) of the Company, that would in the opinion of the Company be
prohibited under Regulation M in connection with a "distribution" (as so
defined) by such Holder) and make generally available to its security holders
earning statements satisfying the provisions of Rule 158 under the Securities
Act, no later than 60 days after the end of any 12-month period (or 90 days, if
such period is a fiscal year) commencing at the end of any fiscal quarter in
which the
12
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering, or, if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of such registration statement, which
earning statements shall cover such 12-month periods;
(xvii) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. and in the performance of
any customary or required due diligence investigation by any underwriter; and
(xviii) use its best efforts to take all other reasonable steps
necessary and appropriate to effect such registration in the manner contemplated
by this Agreement.
(b) Holder Procedures.
(i) Each Holder agrees, by acquisition of the Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
described in Section 6(a) paragraphs (iii)(B), (iii)(C), (iii)(D) or (iii)(E)
hereof, such Holder shall forthwith discontinue disposition of any Registrable
Securities (but, in the case of an event described in Section 6(a)(iii)(D), in
the affected jurisdiction or jurisdictions only) covered by the affected
registration statement or prospectus until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 6(a)
paragraphs (iii) or (xi) hereof or until such Holder is (it being agreed by the
Company that the underwriters, if any, shall also be) advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall have given any such notice during a period when a
Demand Registration is in effect, the six-month period mentioned in Section 2(b)
hereof, shall be extended by the number of days from and including the date of
the giving of such notice to and including the date when each Holder of
Registrable Securities included in such Registration shall have received the
copies of the supplemented or amended prospectus contemplated by Section 6(a)
paragraphs (iii) or (xi) hereof or the Advice, as the case may be.
(ii) In connection with any underwritten public offering of
Registrable Securities pursuant to a Piggyback Registration or Demand
Registration, the managing underwriter or underwriters of such offering shall be
an investment banking firm or firms selected by the Company and shall be
reasonably acceptable to the Majority Sellers.
7. Registration Expenses.
All Registration Expenses, as hereinafter defined, shall be borne by
the Company. The term "Registration Expenses" shall mean all expenses incident
to the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications or
registrations (or the obtaining of exemptions therefrom) of the Registrable
Securities), printing expenses (including expenses of printing prospectuses),
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), fees and disbursements of its counsel and its
13
independent certified public accountants (including the expenses of any special
audit or "comfort" or similar letters or reports required by or incident to such
performance or compliance), securities acts liability insurance (if the Company
elects to obtain such insurance), reasonable fees and expenses of any special
experts retained by the Company in connection with any registration hereunder;
reasonable fees and expenses of other Persons retained by the Company and up to
$25,000 of fees and expenses of one counsel chosen by the Majority Registered
Holders to represent the Holders with respect to such registration ("Holders'
Counsel"); provided that Registration Expenses shall not include any
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities or fees and expenses of counsel for any of the Holders
other than Holders' Counsel or out-of-pocket expenses of any of the Holders.
Holders' Counsel shall be entitled to participate in all drafting sessions and
due diligence sessions in which the managing underwriter or underwriters and
their counsel participate and to receive information and documents pursuant to
Section 6(a)(xv) hereof.
8. Indemnification; Contribution.
(a) Indemnification by the Company. The Company shall indemnify, to the
full extent permitted by law, each Holder of Registrable Securities, its
officers, Managers, employees, partners, members and agents, each Person who
controls such Holder (within the meaning of the Securities Act) and any
investment adviser thereof, counsel or agent therefor, against all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal expenses) arising out of or based upon any of the
following statements, omissions or violations (collectively, a "Violation"): (i)
any untrue or alleged untrue statement of a material fact contained in any
registration statement covering any Registrable Securities, any related
prospectus or preliminary prospectus, or any amendment or supplement thereto,
(ii) any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus or prospectus supplement, in light of the circumstances
under which they were made) not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law, except in each case the Company
shall not be obligated to indemnify a particular Holder insofar, but only
insofar, as the same arises out of or is based upon (i) an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such registration statement, prospectus, preliminary
prospectus, amendment or supplement, as the case may be, made or omitted, as the
case may be, in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use therein, or (ii) a
violation by such Holder of Section 6(b)(i) hereof. This indemnity is in
addition to any liability that the Company may otherwise have. The Company
shall, if requested by the managing underwriter or underwriters of such
offering, also indemnify any underwriters of the Registrable Securities, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution and their officers and Managers and each
Person who controls such underwriters or other Persons (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of Holders and other specified Persons.
14
(b) Indemnification by Holders of Registrable Securities. In connection
with any registration statement covering Registrable Securities, each Holder
(severally, as to itself only, and not jointly with any other Holder) any of
whose Registrable Securities are covered thereby shall furnish to the Company in
writing such information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with such registration
statement, any related prospectus or preliminary prospectus, or any amendment or
supplement thereto, and shall indemnify, to the full extent permitted by law,
the Company, the Company's Managers, officers, employees and agents, each Person
who controls the Company (within the meaning of the Securities Act) and any
investment adviser thereof or agent therefor, against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and legal expenses) arising out of or based upon (i) any untrue or alleged
untrue statement of a material fact contained in any registration statement
covering any Registrable Securities, any related prospectus or preliminary
prospectus, or any amendment or supplement thereto, or any omission or alleged
omission to state in any thereof a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus or
prospectus supplement, in light of the circumstances under which they were made)
not misleading, in each case to the extent, but only to the extent, that the
same arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in such registration statement or in such related prospectus,
preliminary prospectus, amendment or supplement, as the case may be, made or
omitted, as the case may be, in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use therein,
or (ii) a violation by such Holder of Section 6(b)(i) hereof; provided, however,
that in no event shall the liability of any Holder for indemnification under
this Section 8(b) exceed the net proceeds received by such Holder from the sale
of Registrable Securities under the applicable registration statement and the
Holder shall not indemnify for any settlement made without the consent of such
Holder, which consent shall not be unreasonably withheld. This indemnity is in
addition to any liability that a Holder may otherwise have. Each Holder
participating in an offering of Registrable Securities shall, if requested by
the managing underwriter or underwriters of such offering, also (severally, as
to itself only, and not jointly with any other Holder) indemnify any
underwriters of such Registrable Securities, selling brokers, dealer managers
and similar securities industry professionals participating in the distribution
of such Registrable Securities and their officers and Managers and each Person
who controls such underwriters or other Persons (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Company and other specified Persons.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification under this Section 8 agrees to give prompt written notice to the
indemnifying party after the receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such Person will claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it shall not be
obligated to pay the reasonable fees and expenses of more than one counsel with
respect to such claim, unless in the reasonable judgment of counsel to such
indemnified party, expressed
15
in a writing delivered to the indemnifying party, a conflict of interest may
exist between such indemnified party and any other indemnified party with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the reasonable fees and expenses of such additional counsel or counsels
(which shall be limited to one counsel per indemnified party treating as one
each Holder and any of its officers and Managers and each Person who controls
such Holder). The indemnifying party shall not be subject to any liability for
any settlement made without its consent, which consent shall not be unreasonably
withheld. The failure of any indemnified party to notify an indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
liability to the indemnified party under this Section 8 only to the extent that
such failure to give notice shall materially prejudice the indemnifying party in
the defense of any such claim or any such litigation, but the omission so to
notify the indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 8.
(d) Contribution.
(i) If the indemnification provided for in this Section 8 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such 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 and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations; provided, however, that in no event shall the
liability of any Holder for contribution under this Section 8(d) exceed the net
proceeds received by such Holder from the sale of Registrable Securities under
the applicable registration statement. The relative fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth above, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(iii) If indemnification is available under this Section 8, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in
16
Section 8(a) and Section 8(b) hereof without regard to the relative fault of
said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 8(d).
9. Rule 144 Reporting. With a view to making available the benefits of
Rule 144 promulgated under the Securities Act ("Rule 144"), the Company agrees
at its cost and expense to use its best efforts to:
(a) at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the Securities Act
shall have become effective, or at all times after the equity securities of the
Company shall initially be registered pursuant to the requirements of Section 12
of the Exchange Act of 1934, as amended (the "Exchange Act") make and keep
public information available, as those terms are understood within Rule 144;
(b) file with the Commission 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 each Holder of Registrable Securities, forthwith upon
request, a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual and/or quarterly report of the
Company and such other information as may reasonably be requested by a holder to
permit such Holder to avail itself of any rule or regulation of the Commission
that permits the selling of the Registrable Securities without registration
under the Securities Act.
10. Participation in Underwritten Registrations
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, (b) timely completes, executes and
delivers all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and (c) agrees to pay such Person's pro rata portion
of all underwriting discounts and commissions and the fees and expenses of such
Person's counsel (other than Holders' Counsel up to the amount specified in
Section 7).
11. Cooperation with the Company.
Each Holder by the acceptance of Registrable Securities agrees to use
its reasonable best efforts to cooperate with the Company in all reasonable
respects in connection with the preparation and filing of Registrations
hereunder in which such Registrable Securities are included or requested to be
included.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to any of its securities that contains
provisions more favorable to the
17
holders thereof than the provisions contained in this Agreement (including,
without limitation, granting to such holders rights to register securities which
have priority over the rights of the Holders under this Agreement) without
providing for the granting of comparable rights to the Holders in this Agreement
or that contains provisions that conflict with the provisions hereof.
(b) Remedies. Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights in an action at law, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Provisions and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company shall have obtained the prior written consent of (i) the
Holders of a majority of the securities then constituting Registrable Securities
and (ii) each Holder materially and adversely affected by such amendment,
modification, supplement, waiver or departure.
(d) Notices. All notices, requests, waivers, releases, consents, and
other communications required or permitted by this Agreement (collectively,
"Notices") shall be in writing. Notices shall be deemed sufficiently given for
all purposes under this Agreement when delivered in person, when dispatched by
telegram or (upon written confirmation of receipt) by electronic facsimile
transmission or (upon written confirmation of receipt), when dispatched by a
nationally recognized overnight courier service, or three Business Days after
being deposited in the mail, postage prepaid, if mailed. All Notices shall be
delivered as follows:
(i) if to a Holder of Registrable Securities, at the address
indicated on Company's registrar relating to such securities or at such other
address as such Holder may have furnished to the Company in writing; and
(ii) if to the Company, at:
CapitalSource Holdings LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
12th Floor
Chevy Chase, MD 20815
Attention: General Counsel
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
18
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including any successors by merger to the Company. It is contemplated that the
Company may be restructured before a Qualified IPO or other initial public
offering (for example, the entity effecting an initial public offering may be a
successor by merger or reorganization to, or may be an owner of the Company).
This Agreement shall bind and apply to each Successor Entity as if it is the
Company hereunder. Holders may transfer their rights hereunder to any transferee
of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings; Construction. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, all references to
Sections are to Sections of this Agreement, "or" is inclusively disjunctive, and
words in the singular include the plural and vice versa. In computing any period
of time specified in this Agreement, the date of the act or event from which
such period of time is to be measured shall be included, any such period shall
expire at 5:00 p.m., Washington, D.C. time, on the last day of such period, and
any such period denominated in months shall expire on the date in the last month
of such period that has the same numerical designation as the date of the act or
event from which such period is to be measured; provided, however, that if there
is no date in the last month of such period that has the same numerical
designation as the date of such act or event, such period shall expire on the
last day of the last month of such period.
(h) Certain Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, the Board of Managers of the Company may make or
provide for such adjustments in the numbers of shares of, or percentage of
interest represented by, Registrable Securities specified in any other provision
of this Agreement specifying a number or percentage of Registrable Securities,
as the Board of Managers may determine, is equitably required to prevent
diminution or enlargement of the rights of Holders that otherwise would result
from any stock dividend, stock split, combination of shares, recapitalization,
or other similar change in the capital structure of the Company.
19
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
the principles of conflicts of laws thereof.
(j) Severability. If one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions contained herein shall not be in any
way affected or impaired thereby, and the provision held to be invalid, illegal
or unenforceable shall be reformed to the minimum extent necessary, and in a
manner as consistent with the purposes thereof as is practicable, so as to
render it valid, legal and enforceable, it being intended that all of the rights
and privileges of the Holders hereunder shall be enforceable to the fullest
extent permitted by law.
(k) Agreement. This Agreement is intended by the Company and the
Holders to be a final expression thereof and is intended to be a complete and
exclusive statement of the agreement and understanding of the Company and the
Holders in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the Company and any Holders with respect to such subject
matter.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CapitalSource Holdings LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Senior Vice President
--------------------------
[SIGNATURE PAGES FOR HOLDERS FOLLOW]
21
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Managing Member
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
FARALLON CS INSTITUTIONAL FINANCE
II, L.P.
By: Farallon CS Institutional Finance,
L.L.C., its General Partner
By: Farallon Capital Management, L.L.C.,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Managing Member
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Managing Member
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
MADISON DEARBORN CAPITAL
PARTNERS III, L.P.
By: Madison Dearborn Partners III, L.P.,
its General Partner
By: Madison Dearborn Partners III, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Title: Managing Director
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
MADISON DEARBORN SPECIAL
EQUITY III, L.P.
By: Madison Dearborn Partners III, L.P.,
its General Partner
By: Madison Dearborn Partners III, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________________
Title: Managing Director
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
SPECIAL CO-INVEST PARTNERS I
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________________
Title: Managing Director
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
SPECIAL ADVISORS FUND I, LLC
By: Madison Dearborn Partners III, L.P.
its Manager
By: Madison Dearborn Partners III, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________________
Title: Managing Director
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇▇ STREET PARTNERS II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________________
Title: General Partner
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
WACHOVIA CAPITAL PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
_______________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
_____________________________
Title: Partner
____________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
HCLSF, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
Title: President
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
HIGHFIELDS CAPITAL I, LP
By: Highfields Associates LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
Title: Managing Member
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
HIGHFIELDS CAPITAL II, LP
By: Highfields Associates LLC
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
Title: Managing Member
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
FWH ASSOCIATES, L.P.
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________
Title: General Partner
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
PACIFIC AVENUE GROUP, LP
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________
Title: General Partner
____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST B
By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________
Title: Trustee
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
THE PISCES FUND
By: The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1989 Insurance
Trust, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________
Title: Trustee
___________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
KB CAPITAL SOURCE VENTURES, INC.
By: /s/ _____________________________________
Name: _______________________________________
Title:
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
OZ DOMESTIC PARTNERS, LP
By: /s/ ▇▇▇▇▇▇ ▇. Deh
___________________________
Name: ▇▇▇▇▇▇ ▇. Deh
_________________________
Title: Senior Managing Member
________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
OZ SPC II, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Deh
__________________________
Name: ▇▇▇▇▇▇ ▇. Deh
________________________
Title: Senior Managing Member
_______________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
CROWN SFO ASSOCIATES LLC
By: /s/ ▇▇▇▇▇▇ Red
___________________________
Name: ▇▇▇▇▇▇ Red
_________________________
Title: President
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇ ▇▇▇▇ 2000 TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇
______________________
Title: Trustee
_____________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_________________________
Title: Trustee
________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
__________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_______________________
Title: Trustee
______________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_________________________
Title: Trustee
________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ - CPS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________________
Title: Executive Vice President
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
CREATIVE INFORMATION SYSTEMS, LP
By: /s/ NJ ▇▇▇▇▇▇▇
_________________________________________
Name: NJ ▇▇▇▇▇▇▇
_______________________________________
Title: General Partner
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
RVG CS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
Title: President
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
__________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
________________________
Title: Trustee
_______________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
__________________________
Title: Trustee
_________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, TRUSTEE
FBO ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
_________________________
Title: Trustee
________________________
Signature page for the
Amended and Restated Registration Rights Agreement
of
CapitalSource Holdings LLC
ANNEX A
AFFILIATED ENTITIES
The following Holders are deemed to be Affiliated Entities:
1. Farallon Entities:
Farallon CS Institutional Finance II, L.P.
Farallon Capital Partners, L.P.
RR Capital Partners, L.P.
Farallon Capital Institutional Partners, L.P.
Farallon Capital Institutional Partners II, L.P.
Farallon Capital Institutional Partners III, L.P.
2. Madison Dearborn Entities:
Madison Dearborn Capital Partners III, L.P.
Madison Dearborn Special Equity III, L.P.
Special Advisors Fund I, LLC
Special Co-Invest Partners I
3. Highfields Entities:
Highfields Capital I LP
Highfields Capital II LP
HCLSF, Inc.
4. Och Ziff Entities:
OZ Domestic Partners, L.P.
OZ SPC II, Inc.
5. Rosewood Entities:
RVG III L.P.
RVG IV L.P.
6. ▇▇▇▇▇▇▇ Entities:
Pacific Avenue Group, L.P., General Partner
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust "B", Trustee
FWH Associates, L.P., General Partner
ANNEX B
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇