NRDC ACQUISITION CORP. REGISTRATION RIGHTS AGREEMENT
Exhibit
10.13
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is
entered into as of [•], 2007, by NRDC Acquisition Corp., a
Delaware corporation (the “Company”) and NRDC Capital
Management, LLC, a Delaware limited liability company (the
“Investor”).
WHEREAS,
the Investor currently holds most of the issued and outstanding securities
of
the Company;
WHEREAS,
the Investor shall, concurrently with the Company’s initial public offering,
purchase Private Placement Warrants (as hereinafter defined) from the Company
in
a private placement (the “Private Placement”);
WHEREAS,
the Investor has committed, subject to certain conditions, to purchase the
Co-Investment Units (as hereinafter defined) from the Company in a private
placement that will occur immediately prior to the Company’s consummation of the
Initial Business Combination (the “Co-Investment”);
and
WHEREAS,
the Investor and the Company desire to enter into this Agreement to provide
the
Investor with certain rights relating to the registration of the Company’s
securities held by it.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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1.
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DEFINITIONS. The
following capitalized terms used herein have the following
meanings:
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“Agreement”
means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“Board”
means the board of directors of the Company.
“Co-Investment
Common Stock” means the 2,000,000 shares of Common Stock to be issued
as part of the Co-Investment Units and sold by the Company to the
Investor.
“Co-Investment
Units” means the 2,000,000 units of the Company to be issued and sold
by the Company to the Investor in a private placement that will occur
immediately prior to the Initial Business Combination.
“Co-Investment
Warrants” means the 2,000,000 Warrants of the Company to purchase
shares of Common Stock to be issued as part of the Co-Investment Units sold
by
the Company to the Investor (including the underlying shares of Common Stock
for
which they may be exercised).
“Commission”
means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common
Stock” means the common stock, par value $0.0001 per share, of the
Company.
“Company”
is defined in the preamble to this Agreement.
“Demanding
Holder” is defined in Section 2.1.1.
“Demand
Registration” is defined in Section 2.1.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the
same
shall be in effect at the time.
“Form
S-3” is defined in Section 2.3.
“Indemnified
Party” is defined in Section 4.3.
“Indemnifying
Party” is defined in Section 4.3.
“Initial
Business Combination” means the consummation by the Company of a
merger, capital stock exchange, stock purchase, asset acquisition,
reorganization or similar business combination with an operating
business.
“Investor”
is defined in the preamble to this Agreement.
“Investor
Indemnified Party” is defined in Section 4.1.
“IPO
Side Letter” means those certain Side Letters, of even date herewith,
executed by the Investor and acknowledged by the Company.
“Maximum
Number of Shares” is defined in Section 2.1.4.
“Notices”
is defined in Section 6.3.
“Person”
means an individual, a partnership, a limited liability company, a joint
venture, a corporation, a trust, an unincorporated organization, a government
or
any department or agency thereof or any entity similar to any of the
foregoing.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Private
Placement Agreement” means the Placement Warrant Purchase Agreement,
dated [•], 2007, by and among the Company and the Investor.
“Private
Placement Warrants” means the 8,000,000 Warrants purchased by the
Investor from the Company pursuant to the terms of the Private Placement
Agreement.
“Register,”
“registered” and “registration” mean to effect
a registration of securities, having effected a registration of securities
and
effected a registration of securities, respectively, by preparing and filing
a
registration statement or similar document in compliance with the requirements
of the Securities Act, and such registration statement becoming
effective.
“Registrable
Securities” mean (a) all of the shares of Common Stock and Warrants
owned or held by the Investor prior to the date hereof or purchased in the
Private Placement, including any shares of Common Stock issuable upon exercise
of such Warrants and (b) the Co-Investment Common Stock and Co-Investment
Warrants, including any shares of Common Stock issuable upon exercise of
the
Co-Investment Warrants. Registrable Securities include any warrants, shares
of
capital stock or other securities of the Company issued as a dividend or
other
distribution with respect to or in exchange for or in replacement of such
shares
of Common Stock. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when: (i) a Registration Statement
with
respect to the sale of such securities shall have become effective under
the
Securities Act and such securities shall have been sold, transferred, disposed
of or exchanged in accordance with such Registration Statement; (ii) such
securities shall have been otherwise transferred, new certificates for them
not
bearing a legend restricting further transfer shall have been delivered by
the
Company and subsequent public distribution of them shall not require
registration under the Securities Act; (iii) such securities shall have ceased
to be outstanding; or (iv) the
Registrable Securities are salable under Rule 144(k). For the avoidance of
doubt, no security of the Company shall be a “Registrable Security” hereunder
unless the lock-up period for such security has been
terminated.
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“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of Common Stock and/or
Warrants, as the case may be (other than a registration statement (a) on
Form
S-4 or Form S-8, or their successors, (b) covering only securities proposed
to
be issued in exchange for securities or assets of another entity, (c) for
an
exchange offer or offering of securities solely to the Company’s existing
stockholders, (d) for an offering of debt that is convertible into equity
securities of the Company, or (e) for a dividend reinvestment
plan).
“Release
Date” means the date on which the lock up
period (as described in Section [•] of the IPO Side Letters) applicable to the
Registrable Securities is terminated; provided, however that the
Release Date with respect to (i) the Co-Investment Common Stock shall be
no
earlier than one year from the date of the Initial Business Combination
and (ii)
the Co-Investment Warrants shall be only after the date on which the last
sales
price of the Common Stock on the American Stock Exchange, or other national
securities exchange on which the Common Stock may be traded, equals or
exceeds
$14.25 per share for any 20 trading days within any 30-trading-day period
beginning at least 90 days after the consummation of the Initial Business
Combination.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall
be
in effect at the time.
“Underwriter”
means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making
activities.
“Warrant”
means a warrant to purchase one (1) share of the Common Stock for
$7.50.
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2.
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REGISTRATION
RIGHTS.
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2.1. Demand
Registration.
2.1.1 Request
for Registration. At any time commencing ninety (90) days prior
to, and from time to time on or after a Release Date, the Investor or, if the
Investor does not own any Registrable Securities, holders of at least 50.1%
of
the Registrable Securities, on an as-converted to Common Stock basis, may make
a
written demand for registration under the Securities Act of all or part of
the
related Registrable Securities (a “Demand Registration”). Any
demand for a Demand Registration shall specify the number of shares of
Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all holders of Registrable
Securities of the demand, and each holder of Registrable Securities who wishes
to include all or a portion of such holder’s Registrable Securities in the
Demand Registration (each such holder including shares of Registrable Securities
in such registration, a “Demanding Holder”) shall so notify the
Company in writing within fifteen (15) days after the receipt by the holder
of
the notice from the Company. Upon any such request, the Demanding Holders shall
be entitled to have their Registrable Securities included in the Demand
Registration, subject to Section 2.1.4 and the provisos set forth in Section
3.1.1. The Company shall not be obligated to effect more than an aggregate
of
three (3) Demand Registrations under this Section 2.1.1 in respect of
Registrable Securities.
2.1.2 Effective
Registration. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its material obligations under this Agreement with
respect thereto; provided, however, that if,
after such Registration Statement has been declared effective, the offering
of
Registrable Securities pursuant to a Demand Registration is interfered with
by
any stop order or injunction of the Commission or any other governmental agency
or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until, (a) such
stop order or injunction is removed, rescinded or otherwise terminated, and
(b)
a majority-in-interest of the Demanding Holders thereafter elects to continue
the offering; provided, further, that the
Company shall not be obligated to file a second Registration Statement until
a
Registration Statement that has been filed is counted as a Demand Registration
or is terminated.
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2.1.3 Underwritten
Offering. If a majority-in-interest of the Demanding Holders so
elects and such holders so advise the Company as part of their written demand
for a Demand Registration, the offering of such Registrable Securities pursuant
to such Demand Registration shall be in the form of an underwritten offering.
In
such event, the right of any holder to include its Registrable Securities in
such registration shall be conditioned upon such holder’s participation in such
underwriting and the inclusion of such holder’s Registrable Securities in the
underwriting to the extent provided herein. All Demanding Holders
proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such underwriting by a majority-in-interest of the
holders initiating the Demand Registration.
2.1.4 Reduction
of Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advise(s) the Company
and the Demanding Holders in writing that the dollar amount or number of shares
of Registrable Securities which the Demanding Holders desire to sell, taken
together with all other shares of Common Stock or other securities which the
Company desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other stockholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can
be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such
offering (such maximum dollar amount or maximum number of shares, as applicable,
the “Maximum Number of Shares”), then the Company shall include
in such registration: (a) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance
with the number of shares of Registrable Securities which such Demanding Holders
have requested be included in such registration, regardless of the number of
shares held by each such Person (such proportion is referred to herein as
“Pro Rata”)) that can be sold without exceeding the Maximum
Number of Shares; (b) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (a), the shares of Common Stock
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (c) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (a)
and (b), the shares of Common Stock or other securities for the account of
other
Persons that the Company is obligated to register pursuant to written
contractual arrangements with such Persons and that can be sold without
exceeding the Maximum Number of Shares; and (d) fourth, to the extent that
the
Maximum Number of Shares have not been reached under the foregoing clauses
(a),
(b) and (c), the shares of Common Stock that other shareholders desire to sell
that can be sold without exceeding the Maximum Number of Shares to the extent
that the Company, in its sole discretion, wishes to permit such sales pursuant
to this clause (d).
2.1.5 Withdrawal. If
a majority-in-interest of the Demanding Holders disapprove of the terms of
any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect
to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest of the
Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration
provided for in Section 2.1, provided that the
majority-in-interest of the Demanding Holders electing to so withdraw from
the
offering pays all costs and expenses incurred by the Company in connection
with
such withdrawn Demand Registration.
2.1.6
Permitted
Delays. The Company shall be entitled to postpone the filing of any
Registration Statement under this Section 2.1 (a) until the applicable
Release
Date, or (b) for up to sixty (60) days, if (i) at any time prior to the
filing
of such Registration Statement the Company’s Board of Directors determines, in
its good faith business judgment, that such registration and offering would
materially and adversely affect any financing, acquisition, corporate
reorganization, or other material transaction involving the Company, and
(ii)
the Company delivers to the Demanding Holders written notice thereof within
five
(5) business days of the date of receipt of such request for Demand
Registration.
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2.2. Piggy-Back
Registration.
2.2.1 Piggy-Back
Rights. If at any time on or after a Release Date the
Company proposes to file a Registration Statement under the Securities Act
with
respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by
the
Company for its own account or for stockholders of the Company for their account
(or by the Company and by stockholders of the Company including, without
limitation, pursuant to Section 2.1), then the Company
shall (a) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than ten
(10)
days before the anticipated filing date, which notice shall describe the amount
and type of securities to be included in such offering, the intended method(s)
of distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (b) offer to the holders of
Registrable Securities in such notice the opportunity to register the sale
of
such number of shares of Registrable Securities as such holders may request
in
writing within ten (10) days following receipt of such notice (a
“Piggy-Back Registration”). The Company shall cause such
Registrable Securities to be included in such registration and shall use
commercially reasonable efforts to cause the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration on the same
terms and conditions as any similar securities of the Company and to permit
the
sale or other disposition of such Registrable Securities in accordance with
the
intended method(s) of distribution thereof. All holders of Registrable
Securities proposing to distribute their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into
an
underwriting agreement in customary form with the Underwriter or Underwriters
selected for such Piggy-Back Registration.
2.2.2 Reduction
of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advise(s) the
Company and the holders of Registrable Securities in writing that the dollar
amount or number of shares of Common Stock which the Company desires to sell,
taken together with shares of Common Stock, if any, as to which registration
has
been demanded pursuant to written contractual arrangements with Persons other
than the holders of Registrable Securities hereunder, the Registrable Securities
as to which registration has been requested under this Section 2.2, and the
shares of Common Stock, if any, as to which registration has been requested
pursuant to the written contractual piggy-back registration rights of other
stockholders of the Company, exceeds the Maximum Number of Shares, then the
Company shall include in any such registration:
(a) If
the registration is undertaken for the Company’s account: (i) first, the shares
of Common Stock or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Number of Shares; (ii) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (i), the shares of Common Stock or other securities, if any, comprised
of
Registrable Securities, as to which registration has been requested pursuant
to
the applicable written contractual piggy-back registration rights of such
security holders, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; and (iii) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (i) and (ii), the shares
of Common Stock or other securities for the account of other Persons that the
Company is obligated to register pursuant to written contractual piggy-back
registration rights with such Persons and that can be sold without exceeding
the
Maximum Number of Shares; and
(b) If
the registration is a “demand” registration undertaken at the demand of Persons
other than the holders of Registrable Securities, (i) first, the shares of
Common Stock or other securities for the account of the demanding Persons that
can be sold without exceeding the Maximum Number of Shares; (ii) second, to
the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number
of
Shares; (iii) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (i) and (ii), the shares of Common
Stock or other securities, if any, comprised of Registrable Securities, Pro
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Rata,
as
to which registration has been requested pursuant to the applicable written
contractual piggy-back registration rights of such security holders, Pro
Rata,
that can be sold without exceeding the Maximum Number of Shares; and (iv)
fourth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (i), (ii) and (iii), the shares of Common Stock
or
other securities, if any, for the account of other Persons that the Company
is
obligated to register pursuant to written contractual piggy-back registration
rights with such Persons that can be sold without exceeding the Maximum Number
of Shares.
2.2.3 Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by Persons making a demand
pursuant to written contractual obligations) may withdraw a registration
statement at any time prior to the effectiveness of the Registration Statement
without thereby incurring any liability to the holders of Registrable
Securities. Notwithstanding any such withdrawal, the Company shall pay all
expenses incurred by the holders of Registrable Securities in connection with
such Piggy-Back Registration as provided in Section 3.3.
2.2.4 Permitted
Delays. The Company shall be entitled to postpone, for up to
sixty (60) days (but not for more than one hundred eighty (180) days in any
calendar year), the filing of any Registration Statement under this Section
2.2,
if (a) at any time prior to the filing of such Registration Statement the
Company’s Board of Directors determines, in its good faith business judgment,
that such registration and offering would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material transaction
involving the Company, and (b) the Company delivers to the holder of Registrable
Securities requesting a Piggy-Back Registration written notice thereof within
five (5) business days of the date of receipt by the Company of such request
for
Piggy-Back Registration.
2.3. Registrations
on Form S-3. At any time on or after a Release Date, the holders
of Registrable Securities may at any time and from time to time, request in
writing that the Company register the resale of any or all of such Registrable
Securities on Form S-3 or any similar short-form registration which may be
available at such time (“Form S-3”); provided,
however, that the Company shall
not be obligated to effect such
request through an underwritten offering. Upon receipt of such written request,
the Company will promptly give written notice of the proposed registration
to
all other holders of Registrable Securities, and, as soon as practicable
thereafter, effect the registration of all or such portion of such holder’s or
holders’ Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other holder or holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not
be obligated to effect any such registration pursuant to this Section 2.3:
(a)
if Form S-3 is not available for such offering; or (b) if the holders of the
Registrable Securities, together with the holders of any other securities of
the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the
public of less than $500,000. Registrations effected pursuant to this Section
2.3 shall not be counted as Demand Registrations effected pursuant to Section
2.1.
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3.
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REGISTRATION
PROCEDURES.
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3.1. Filings;
Information. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company
shall use commercially reasonable efforts to effect the registration and sale
of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection with
any
such request:
3.1.1 Filing
Registration Statement. The Company shall, as expeditiously as
possible and in any event within sixty (60) days after receipt of a request
for
a Demand Registration pursuant to Section 2.1, prepare and file with the
Commission a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which
form
shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof,
and shall use commercially reasonable efforts to cause such Registration
Statement to become and remain effective for the period required by Section
3.1.3; provided, however,
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that
the
Company shall have the right to defer any Demand Registration for up to sixty
(60) days, and any Piggy-Back Registration for such period as may be applicable
to deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate
signed by the Chief Executive Officer or Chairman of the Company stating
that,
in the good faith judgment of the Board, it would be materially detrimental
to
the Company and its stockholders for such Registration Statement to be effected
at such time; provided, further, that the
Company shall not have
the
right to exercise the right set forth in the immediately preceding proviso
more
than once in any three hundred sixty five (365) day period in respect of
a
Demand Registration hereunder.
3.1.2 Copies. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned
by
such holders.
3.1.3 Amendments
and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and in
compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have
been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement (which period shall not exceed the sum of one
hundred eighty (180) days plus any period during which any such disposition
is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been
withdrawn.
3.1.4 Notification. After
the filing of a Registration Statement, the Company shall promptly, and in
no
event more than two (2) business days after such filing, notify the holders
of
Registrable Securities included in such Registration Statement of such filing,
and shall further notify such holders within two (2) business days of the
occurrence of any of the following: (a) when such Registration Statement becomes
effective; (b) when any post-effective amendment to such Registration Statement
becomes effective; (c) the issuance or threatened issuance by the Commission
of
any stop order (and the Company shall take all commercially reasonable actions
required to prevent the entry of such stop order or to remove it if entered);
and (d) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional
information or of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered
to
the purchasers of the securities covered by such Registration Statement, such
prospectus will not contain an untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein not misleading, and promptly make available to the holders
of
Registrable Securities included in such Registration Statement any such
supplement or amendment; except that before filing with the Commission a
Registration Statement or prospectus or any amendment or supplement thereto,
including documents incorporated by reference, the Company shall furnish to
the
holders of Registrable Securities included in such Registration Statement and
to
the legal counsel for any such holders, copies of all such documents proposed
to
be filed sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any Registration Statement or prospectus
or amendment or supplement thereto, including documents incorporated by
reference, to which such holders or their legal counsel shall
object.
3.1.5 State
Securities Laws Compliance. The Company shall use commercially
reasonable efforts to (a) register or qualify the Registrable Securities covered
by the Registration Statement under such securities or “blue sky” laws of such
jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may request, and (b) take such action necessary to cause such
Registrable Securities covered by the
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Registration
Statement to be registered with or approved by such other governmental
authorities as may be necessary by virtue of the business and operations
of the
Company and do any and all other acts and things that may be necessary or
advisable to enable the holders of Registrable Securities included in such
Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this paragraph or subject itself to taxation in any such
jurisdiction.
3.1.6 Agreements
for Disposition. The Company shall enter into customary
agreements (including, if applicable, an underwriting agreement in customary
form) and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Securities. The
representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters, to the
extent applicable, shall also be made to and for the benefit of the holders
of
Registrable Securities included in such registration statement. No holder of
Registrable Securities included in such registration statement shall be required
to make any representations or warranties in the underwriting agreement except,
if applicable, with respect to such holder’s organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder’s material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished
in
writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation. The
principal executive officer of the Company, the principal financial officer
of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully
in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement
with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.8 Records. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such registration statement and
any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of
the
Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
3.1.9 Opinions
and Comfort Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed
counterpart, addressed to such holder, of (a) any opinion of counsel to the
Company delivered to any Underwriter and (b) any comfort letter from the
Company’s independent public accountants delivered to any Underwriter. In the
event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion
of counsel to the Company to the effect that the Registration Statement
containing such prospectus has been declared effective and that no stop order
is
in effect.
3.1.10 Earnings
Statement. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and make available
to
its stockholders, as soon as practicable, an earnings statement covering a
period of twelve (12) months, beginning within three (3) months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11 Listing. The
Company shall use commercially reasonable efforts to cause all Registrable
Securities included in any registration to be listed on such exchanges or
otherwise designated for trading in the same manner as similar securities issued
by the Company are then listed or designated or, if no such
8
similar
securities are then listed or designated, in a manner satisfactory to the
majority-in-interest of the holders of Registrable Securities included in
such
registration.
3.2. Obligation
to
Suspend Distribution. Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1.4(d), or, in
the
case of a resale registration on Form S-3 pursuant
to Section 2.3 hereof, upon any suspension by the Company, pursuant to a
written
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ compliance program adopted by the Board, of the ability of
all
“insiders” covered by such program to transact in the Company’s securities
because of the existence of material non-public information, each holder
of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section 3.1.4(d)
or the restriction on the ability of “insiders” to transact in the Company’s
securities is removed, as applicable, and, if so directed by the Company,
each
such holder will deliver to the Company all copies, other than permanent
file
copies then in such holder’s possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such
notice.
3.3. Registration
Expenses. The Company shall bear all costs and expenses incurred
in connection with (a) subject to Section 2.1.5, any Demand Registration
pursuant to Section 2.1, (b) any Piggy-Back Registration pursuant to Section
2.2, and (c) any registration on Form S-3 effected pursuant to Section 2.3,
and
all expenses incurred in performing or complying with its other obligations
under this Agreement, whether or not the Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees;
(ii) fees and expenses of compliance with securities or “blue sky” laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv)
the
Company’s internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred
in
connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses
or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration; and (ix) the
fees
and expenses of one (1) legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an underwritten
offering, all selling stockholders and the Company shall bear the expenses
of
the underwriter, pro rata, in proportion to the respective amount of shares
each
is selling in such offering.
3.4. Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any,
in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of
any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
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4.
|
INDEMNIFICATION
AND CONTRIBUTION.
|
4.1. Indemnification
by the Company. The Company agrees to indemnify and hold harmless
the Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members,
attorneys and agents, and each Person, if any, who controls (within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act) an
Investor and each other holder of Registrable Securities (each, an
“Investor Indemnified Party”), from and against any expenses,
losses, judgments, claims, damages or liabilities, whether joint or several,
arising out of or based upon any untrue statement (or allegedly untrue
statement) of a material fact contained in any Registration Statement under
which the sale of such Registrable Securities was registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arising out of or based upon
any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
9
violation
by the Company of the Securities Act or any rule or regulation promulgated
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration; and the Company
shall
promptly reimburse the Investor Indemnified Party for any legal and any other
expenses reasonably incurred by such Investor Indemnified Party in connection
with investigating and defending any such expense, loss, judgment, claim,
damage, liability or action; provided, however, that the
Company
will not be liable in any such case to the extent that any such expense,
loss,
claim, damage or liability arises out of or is based upon any untrue statement
or allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus, or summary
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein.
4.2. Indemnification
by Holders of Registrable Securities. Each selling holder of
Registrable Securities will, in the event that any registration is being
effected under the Securities Act pursuant to this Agreement of any Registrable
Securities held by such selling holder, indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any), and each
other
selling holder and each other Person, if any, who controls another selling
holder or such underwriter within the meaning of the Securities Act, against
any
losses, claims, judgments, damages or liabilities, whether joint or several,
insofar as such losses, claims, judgments, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon any untrue statement or
allegedly untrue statement of a material fact contained in any Registration
Statement under which the sale of such Registrable Securities was registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained in the Registration Statement, or any amendment
or
supplement to the Registration Statement, or arise out of or are based upon
any
omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such selling holder expressly
for use therein, and shall reimburse the Company, its directors and officers,
and each other selling holder or controlling Person for any legal or other
expenses reasonably incurred by any of them in connection with investigation
or
defending any such loss, claim, damage, liability or action. Each selling
holder’s indemnification obligations hereunder shall be several and not joint
and shall be limited to the amount of any net proceeds actually received by
such
selling holder.
4.3. Conduct
of Indemnification Proceedings. Promptly after receipt by any
Person of any notice of any loss, claim, damage or liability or any action
in
respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such
Person (the “Indemnified Party”) shall, if a claim in respect
thereof is to be made against any other Person for indemnification hereunder,
notify such other Person (the “Indemnifying Party”) in writing
of the loss, claim, judgment, damage, liability or action; provided,
however, that the failure by the Indemnified Party to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which the Indemnifying Party may have to such Indemnified Party hereunder,
except and solely to the extent the Indemnifying Party is actually prejudiced
by
such failure. If the Indemnified Party is seeking indemnification with respect
to any claim or action brought against the Indemnified Party, then the
Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume control of the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which
both the Indemnified Party and the Indemnifying Party are named as defendants,
the Indemnified Party shall have the right to employ separate counsel (but
no
more than one such separate counsel) to represent the Indemnified Party and
its
controlling Persons who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if, based upon the written opinion of counsel of such
Indemnified Party, representation of both parties by the same counsel would
be
inappropriate due to actual or potential differing interests between them.
No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, consent to entry of judgment or effect any settlement of any claim or
pending or threatened proceeding in respect of which the Indemnified Party
is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such judgment or settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such claim
or proceeding.
10
4.4. Contribution.
4.4.1 If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3
is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein,
then each such 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 loss, claim, damage, liability or action in such proportion
as is appropriate to reflect the relative fault of the Indemnified Parties
and
the Indemnifying Parties in connection with the actions or omissions which
resulted in such loss, claim, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of any Indemnified Party
and any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
4.4.2 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section
4.4.1.
4.4.3 The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. 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.
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5.
|
UNDERWRITING
AND DISTRIBUTION.
|
5.1. Rule
144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
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6.
|
MISCELLANEOUS.
|
6.1. Other
Registration Rights. The Company represents and warrants that no
Person, other than a holder of the Registrable Securities, has any right to
require the Company to register any shares of the Company’s capital stock for
sale or to include shares of the Company’s capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other Person.
6.2. Assignment;
No Third Party Beneficiaries. This Agreement and the rights,
duties and obligations of the Company hereunder may not be assigned or delegated
by the Company in whole or in part. This Agreement and the rights, duties and
obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities held by any
such holder. This Agreement and the provisions hereof shall be binding upon
and
shall inure to the benefit of each of the parties hereto and their respective
permitted successors and assigns. Except as otherwise expressly set forth
herein, this Agreement is not intended to confer any rights or benefits on
any
Persons that are not party hereto other than as expressly set forth in Article
4
and this Section 6.2.
11
6.3. Notices. All
notices, demands, requests, consents, approvals or other communications
(collectively, “notices” and each, a “notice”)
required or permitted to be given hereunder or which are given with respect
to
this Agreement shall be in writing and shall be personally served, delivered
by
reputable overnight courier service with charges prepaid, or transmitted by
hand
delivery or facsimile, addressed as set forth below, or to such other address
as
such party shall have specified most recently by written notice. Notice shall
be
deemed given
on
the date of service or transmission if personally served or transmitted by
facsimile; provided, that if such service or transmission is not on a
business day or is after normal business hours, then such notice shall be deemed
given on the next business day. Notice otherwise sent as provided herein shall
be deemed given on the next business day following timely delivery of such
notice to a reputable overnight courier service with an order for next-day
delivery.
To
the
Company:
▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with
a
copy to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇
▇. ▇▇▇▇▇▇,
Esq.
To
an
Investor, to the address for such Investor specified on the signature pages
hereto.
6.4. Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible that is
valid and enforceable.
6.5. Counterparts. This
Agreement may be executed by facsimile and in multiple counterparts, and all
of
which taken together shall constitute one and the same instrument.
6.6. Entire
Agreement. This Agreement (including all agreements entered into
pursuant hereto and all certificates and instruments delivered pursuant hereto
and thereto) constitutes the entire agreement of the parties with respect to
the
subject matter hereof and supersedes all prior and contemporaneous agreements,
representations, understandings, negotiations and discussions between the
parties, whether oral or written.
6.7. Modifications
and Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such
party.
6.8. Titles
and Headings. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
6.9. Waivers
and Extensions. Any party to this Agreement may waive any right,
breach or default which such party has the right to waive,
provided that such waiver will not be effective against the
waiving party unless it is in writing, is signed by such party, and specifically
refers to this Agreement. Waivers may be made in advance or after the right
waived has arisen or the breach or default waived has occurred. Any waiver
may
be conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
nor of any other agreement or provision herein contained. No
12
waiver
or
extension of time for performance of any obligations or acts shall be deemed
a
waiver or extension of the time for performance of any other obligations or
acts.
6.10. Remedies
Cumulative. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance
of any term contained in this Agreement or for an injunction against the breach
of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any
one
or more of such actions, without being required to post a bond. None of the
rights, powers or remedies conferred under this Agreement shall be mutually
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred by this
Agreement or now or hereafter available at law, in equity, by statute or
otherwise.
6.11. Governing
Law. This Agreement shall for all purposes be deemed to be made
under and shall be construed in accordance with the laws of the State of New
York, without giving effect to conflicts of law principles that would result
in
the application of the substantive laws of another jurisdiction. The parties
hereto agree that any action, proceeding or claim against it arising out of
or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive. The parties hereby waive any objection
to
such exclusive jurisdiction and that such courts represent an inconvenient
forum.
6.12. Waiver
of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of any Investor in the negotiation,
administration, performance or enforcement hereof.
[Remainder
of page intentionally left blank]
13
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to
be executed and delivered as of the date first written above.
| NRDC ACQUISITION CORP. | |||
|
|
By:
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||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Chief Executive Officer | |||
| NRDC CAPITAL MANAGEMENT, LLC | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||