Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
STI PREPAID, LLC
Dated as of March 8, 2007
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS.............................................1
1.1 Definitions................................................1
1.2 Other Definitional and Interpretive Matters................3
ARTICLE II - REGISTRATION RIGHTS.....................................4
2.1 Demand Registration........................................4
2.2 Piggyback Registrations....................................7
2.3 Holdback Agreement.........................................8
2.4 Registration Procedures....................................8
2.5 Suspension of Dispositions................................10
2.6 Registration Expenses.....................................11
2.7 Indemnification...........................................11
ARTICLE III - MISCELLANEOUS..........................................14
3.1 Notices...................................................14
3.2 Governing Law.............................................15
3.3 Jurisdiction..............................................15
3.4 Successors and Assigns....................................15
3.5 Duplicate Originals.......................................15
3.6 Severability..............................................16
3.7 No Waivers; Amendments....................................16
3.8 Negotiated Agreement......................................16
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated March 8, 2007,
is among STi Prepaid, LLC, a Delaware limited liability company (including its
successors, the "Company"), and ST Finance, LLC, a Delaware limited liability
company ("ST Finance").
RECITALS
WHEREAS, the Company and ST Finance are parties to the Amended and
Restated Limited Liability Company Agreement of the Company, dated March 8,
2007, by and among the Company and the other parties named therein (the "LLC
Agreement");
WHEREAS, the Company and ST Finance are parties to the Asset Purchase and
Contribution Agreement, dated January 23, 2007 by and among the Company and the
other parties named therein (the "Purchase Agreement");
WHEREAS, in accordance with the Purchase Agreement and the LLC Agreement,
among other things, ST Finance will receive Units (as defined below) in
accordance with Schedule I of the LLC Agreement; and
WHEREAS, in order to induce ST Finance to enter into the LLC Agreement,
the parties desire to grant to ST Finance and the other Holders (as defined
herein) certain rights as provided herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified in this Section 1.1.
"Affiliate" means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with any Person.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required to close under the laws
of the United States or the State of New York.
"Common Stock Equivalents" means, without duplication with common
stock of the Company, any rights, warrants, options, convertible securities or
indebtedness, exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or indirectly,
common stock of the Company and securities convertible or exchangeable into
common stock of the Company, whether at the time of issuance or upon the passage
of time or the occurrence of any future event.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Demand Registration" shall have the meaning set forth in Section
2.1(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
promulgated by the SEC thereunder, all as the same shall be in effect at the
time.
"Excluded Registration" means a registration under the Securities
Act of (i) securities pursuant to the Demand Registration pursuant to Section
2.1(a) hereof, (ii) securities registered on Form S-8 or any similar successor
form and (iii) securities registered as consideration to effect the acquisition
of or combination with another Person.
"Holder" means ST Finance or any transferee of Registrable
Securities owned by ST Finance permitted pursuant to the LLC Operating Agreement
that has agreed in writing to be bound by the terms of this Agreement, so long
as ST or his Affiliates, directly or indirectly, owns an interest in the
Company.
"Material Adverse Effect" shall have the meaning provided in Section
2.2(b) hereof.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means (i) the Units or common stock of the
Company or an Affiliate thereof, issued as a replacement of or in exchange for
the Units, and (ii) any other equity securities issued or issuable with respect
to any such Units or shares of common stock by way of a dividend or split or in
connection with a combination of Units or shares of common stock of the Company
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or an affiliate thereof, recapitalization, merger, consolidation or other
reorganization or otherwise (including securities into which the Units may be
converted, exchanged or replaced) which the holders thereof are entitled to
receive; provided, however, that Registrable Securities shall not include any
shares (i) the sale of which has been registered pursuant to the Securities Act
and which shares have been sold pursuant to such registration or (ii) which have
been sold pursuant to Rule 144 of the SEC under the Securities Act.
"Registration Expenses" shall have the meaning provided in Section
2.6 hereof.
"Requesting Holders" shall have the meaning set forth in Section
2.1(f) hereof.
"Required Filing Date" shall have the meaning provided in Section
2.1(b) hereof.
"SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar successor federal statute, and the rules and regulations promulgated
by the SEC thereunder, all as the same shall be in effect at the time.
"Seller Affiliates" shall have the meaning provided in Section
2.7(a) hereof.
"ST" means ▇▇▇▇▇ ▇▇▇▇▇▇.
"Subsidiary" means any entity with respect to which a specified
Person (or a Subsidiary thereof) owns or has the power to vote 50% or more of
the equity interests in such entity, having general voting power to participate
in the election of the governing body of such entity.
"Suspension Notice" shall have the meaning provided in Section 2.5
hereof.
"Units" shall have the meaning provided in the LLC Agreement.
1.2 Other Definitional and Interpretive Matters. Unless otherwise
expressly provided or the context otherwise requires, for purposes of this
Agreement the following rules of interpretation apply.
(a) When calculating the period of time before which, within which
or following which any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period is
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excluded. If the last day of such period is a non-Business Day, the period in
question ends on the next succeeding Business Day.
(b) Any reference in this Agreement to $ means U.S. dollars.
(c) The Exhibits and Schedules to this Agreement are hereby
incorporated and made a part hereof as if set forth in full in this Agreement
and are an integral part of this Agreement. Any capitalized terms used in any
Schedule or Exhibit but not otherwise defined therein are defined as set forth
in this Agreement.
(d) Any reference in this Agreement to gender includes all
genders, and words in the singular also include the plural and words in the
plural include the singular.
(e) The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and do not affect, and should not
be utilized in, the construction or interpretation of this Agreement.
(f) All references in this Agreement to any "Article," "Section,"
"Schedule" or "Exhibit" are to the corresponding Article, Section, Schedule or
Exhibit of this Agreement.
(g) The words "herein," "hereinafter," "hereof," and "hereunder"
refer to this Agreement as a whole and not merely to a subdivision in which such
words appear unless the context otherwise requires.
(h) The word "including" or any variation thereof means
"including, but not limited to," and does not limit any general statement that
it follows to the specific or similar items or matters immediately following it.
ARTICLE II - REGISTRATION RIGHTS
2.1 Demand Registration.
(a) At any time after the later of the fifth anniversary of the
date hereof (the "Permitted Transfer Date") and the date that the Company
satisfies the requirements that would permit the registration and sale of the
Registrable Securities pursuant to Form S-3 (or any equivalent short-form
registration statement or successor form to Form S-3 (a "Form S-3")), ST may
request, in writing (a "Demand Request"), that the Company effect the
registration on Form S-3 under the Securities Act of all of the Holders'
Registrable Securities (a "Demand Registration"). No more than one Demand
Request may be given (unless withdrawn in accordance with the terms of this
Agreement).
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(b) The Company shall file the Demand Registration within 75 days
after receiving the Demand Request (the "Required Filing Date") and shall use
its commercially reasonable efforts to cause the same to be declared effective
by the SEC as promptly as practicable after such filing; provided, that such
Demand Request may be made 75 days prior to the anticipated date that the
Company will become Form S-3 eligible.
(c) A registration will not count as a Demand Registration until
it has been declared effective by the SEC (unless the Requesting Holders
withdraw all their Registrable Securities and the Company has performed its
obligations hereunder in all material respects, in which case such demand will
count as a Demand Registration unless the Requesting Holders pay all
Registration Expenses (other than Internal Expenses) in connection with such
withdrawn registration); provided, however, that if, after it has become
effective, an offering of Registrable Securities pursuant to a registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court, such registration will be deemed
not to have been effected and will not count as a Demand Registration.
(d) No Person may participate in any registration pursuant to
Section 2.1(a) unless such Person completes and executes all questionnaires in
customary form for like transactions and like persons, powers of attorney
(solely relating to any signatures on the filings that may be required under
Form S-3), and other documents reasonably required in connection with the filing
of, and the sale of securities pursuant to, the Form S-3; provided, however,
that no such Person shall be required to make any representations or warranties
in connection with any such registration other than representations and
warranties as to (A) such Person's ownership of his or its Registrable
Securities to be transferred free and clear of all liens, claims and
encumbrances, (B) such Person's power and authority to effect such transfer and
(C) such matters pertaining to compliance with securities laws as may be
reasonably requested in connection with the filing of, and the sale of
securities pursuant to the Form S-3.
(e) (i) After the initial public offering of its securities
registered under the Securities Act, the Company shall use its commercially
reasonable efforts to qualify and remain qualified to register Registrable
Securities by Holders pursuant to a Form S-3 under the Securities Act.
(ii) Notwithstanding anything contained herein to the contrary, the
Company shall have no obligation hereunder to file a registration statement
other than a Form S-3, at any time that the Company fails to satisfy the
eligibility requirements that would permit the registration and sale of the
Registrable Securities pursuant to Form S-3.
(f) The Company shall give prompt written notice to each Holder of
Registrable Securities (which notice shall be given not less than 30 days prior
to the effective date of the Demand Registration), which notice shall offer each
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such Holder the opportunity to include its or his Registrable Securities in the
Demand Registration. Each Holder who desires to have its or his Registrable
Securities included in the Demand Registration shall so advise the Company in
writing (stating the number of shares desired to be registered) within 20 days
after the date of such notice from the Company (ST together with such Holders,
the "Requesting Holders").
(g) Notwithstanding anything to the contrary contained herein, no
request may be made under Section 2.1(a) or Section 2.2(a)within 180 days (or
such shorter time period as the underwriter shall agree following the good faith
request by the Company to reduce the period to 90 days) after the effective date
of a registration statement filed by the Company covering a public offering in
which ST Finance or any other Holder shall have been entitled to join pursuant
to Section 2.2 and in which there shall have been effectively registered all
Registrable Securities as to which registration shall have been requested.
(h) For no more than 120 days from the Required Filing Date in any
12 month period, the Company may defer (1) the filing of a Form S-3 required by
Section 2.1(a) or any amendment thereto, (2) the furnishing of any supplement to
a prospectus supplement to a prospectus included in a registration statement
pursuant to Section 2.4(c) hereof, (3) any other filing with the SEC or (4)
effectiveness of such registration statement or other filing with the SEC
(clauses (1), (2), (3) and (4) individually and collectively being referred to
as a "Deferral") if (i) at the time the Company receives the Demand Request, the
Company or any of its Subsidiaries are engaged in confidential negotiations or
other confidential business activities or otherwise in possession of material
confidential information, disclosure of which would be required in such
registration statement (but would not be required if such registration statement
were not filed), and the Board of Directors of the Company determines in good
faith that such disclosure is not in the best interests of the Company and its
stockholders, (ii) the Board of Directors of the Company determines in good
faith that effecting such registration at such time would have a material
adverse effect upon a proposed sale of all (or substantially all) or the assets
of the Company or a merger, reorganization, recapitalization or similar
transaction or (iii) the Board of Directors had determined to effect a
registered underwritten public offering of the Company's securities for the
Company's account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering (provided, in the
case of this clause (iii), that the Holders shall continue to have their rights
under Section 2.2). A Deferral pursuant to this Section 2.1(h) shall be lifted,
and the appropriate document shall be filed, furnished or caused to be declared
effective, as the case may be, by the later of (x) 30 days or (y) the Required
Filing Date, if, in the case of a Deferral pursuant to clauses (i), (ii) or
(iii) of the preceding sentence, the negotiations or other activities are
disclosed, terminated or abandoned or following the 120th day. In order to defer
the filing of a registration statement pursuant to this Section 2.1(h), the
Company shall promptly (but in any event within ten days), upon determining to
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seek such deferral, deliver to each Requesting Holder a certificate signed by an
executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 2.1(h) and a general statement of the reason for
such deferral and an approximation of the anticipated delay. Within 20 days
after receiving such certificate, the holders of a majority of the Registrable
Securities held by the Requesting Holders and for which registration was
previously requested may withdraw such Demand Request by giving notice to the
Company; if withdrawn, the Demand Request shall be deemed not to have been made
for all purposes of this Agreement.
2.2 Piggyback Registrations.
(a) At any time after the Permitted Transfer Date, each time the
Company proposes to register any of its equity securities (other than pursuant
to an Excluded Registration) under the Securities Act for sale to the public
(whether for the account of the Company or the account of any securityholder of
the Company) and the form of registration statement to be used permits the
registration of Registrable Securities, the Company shall give prompt written
notice to each Holder of Registrable Securities (which notice shall be given not
less than 30 days prior to the effective date of the Company's registration
statement), which notice shall offer each such Holder the opportunity, either
with or without all other holders of Registrable Securities in the Company's
sole discretion, to include each Holder's pro rata share of all Registrable
Securities in such registration statement, subject to the limitations contained
in Section 2.2(b) hereof. Each Holder who desires to have its or his Registrable
Securities included in such registration statement shall so advise the Company
in writing (stating the number of shares desired to be registered) within 20
days after the date of such notice from the Company. Any Holder shall have the
right to withdraw such Holder's request for inclusion of such Holder's
Registrable Securities in any registration statement pursuant to this Section
2.2(a) by giving written notice to the Company of such withdrawal. Subject to
Section 2.2(b) below, the Company shall include in such registration statement
all such Registrable Securities so requested to be included therein; provided,
however, that the Company may at any time withdraw or cease proceeding with any
such registration if it shall at the same time withdraw or cease proceeding with
the registration of all other equity securities originally proposed to be
registered.
(b) If the managing underwriter, if any, advises the Company that
the inclusion of Registrable Securities requested to be included in the
registration statement referred to in Section 2.2(a) would materially and
adversely affect the price or success of the offering described in such
registration statement (a "Material Adverse Effect"), the Company will be
obligated to include in such registration statement, as to each Requesting
Holder, only a portion of the shares such Holder has requested be registered
equal to the product of: (i) the ratio which such Holder's requested shares
bears to the total number of shares requested to be included in such
registration statement by all Persons (including Requesting Holders) who have
requested (pursuant to contractual registration rights) that their shares be
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included in such registration statement; and (ii) the maximum number of
Registrable Securities that the managing underwriter advises may be sold in an
offering covered by the registration statement without a Material Adverse
Effect. If as a result of the provisions of this Section 2.2(b) any Holder shall
not be entitled to include all Registrable Securities in a registration that
such Holder has requested to be so included, such Holder may withdraw such
Holder's request to include Registrable Securities in such registration
statement. No Person may participate in any registration statement hereunder
unless such Person (i) agrees to sell such person's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Company and
(ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents, each in customary form, reasonably
required under the terms of such underwriting arrangements; provided, however,
that no such Person shall be required to make any representations or warranties
in connection with any such registration other than representations and
warranties as to (A) such Person's ownership of his or its Registrable
Securities to be sold or transferred free and clear of all liens, claims and
encumbrances, (B) such Person's power and authority to effect such transfer and
(C) such matters pertaining to compliance with securities laws as may be
reasonably requested; provided, further, however, that the obligation of such
Person to indemnify pursuant to any such underwriting arrangements shall be
several, not joint and several, among such Persons selling Registrable
Securities, and the liability of each such Person will be in proportion to, and
provided, further, that such liability will be limited, to the net amount
received by such Person from the sale of his or its Registrable Securities
pursuant to such registration.
2.3 Holdback Agreement. In connection with an offering described in
Section 2.2 that is pursuant to an underwriting agreement, unless the managing
underwriter otherwise agrees, each of the Company and the Holders agrees not to
effect any public sale or private offer or distribution of any Registrable
Securities or Common Stock Equivalents during the ten Business Days prior to the
effectiveness under the Securities Act of any underwritten registration
(provided that each Holder receives written notice of the estimated effective
date) and during such time period after the effectiveness under the Securities
Act of any underwritten registration (except, if applicable, as part of such
underwritten registration) as the Company and the managing underwriter may
agree, provided that such post-registration time period shall not exceed 180
days (or such shorter time period as such managing underwriter shall agree
following the good faith request by the Company to reduce the period to 90 days)
as it applies to the Holders. Any discretionary waiver or termination of the
requirements under the foregoing provisions made by the managing underwriter, if
such waiver relates to less than all of the Holders' Registrable Securities,
shall apply to each seller of Registrable Securities on a pro rata basis in
accordance with the number of Registrable Securities held by each seller.
2.4 Registration Procedures. After the Permitted Transfer Date, whenever
any Holder has requested that any Registrable Securities be registered pursuant
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to this Agreement, the Company will use its commercially reasonable efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the SEC such amendments, 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 pursuant to Rule 415 at all times until the earlier of (i)
the date on which the Holders may immediately sell all of the Registrable
Securities without volume limitation restrictions pursuant to Rule 144(k) of the
1933 Act or (ii) the date on which the Holders shall have sold all the
Registrable Securities (the "Registration Period");
(b) furnish to each seller of Registrable Securities and the
underwriters, if any, of the securities being registered such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus), any documents incorporated by reference therein and such other
documents as such seller or underwriters may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller or
the sale of such securities by such underwriters (it being understood that,
subject to Section 2.5 and the requirements of the Securities Act and applicable
state securities laws, the Company consents to the use of the prospectus and any
amendment or supplement thereto by each seller and the underwriters in
connection with the offering and sale of the Registrable Securities covered by
the registration statement of which such prospectus, amendment or supplement is
a part);
(c) promptly notify each seller and each underwriter, if any, and,
if requested by any such Person, confirm such notice in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective and (ii) of the happening of any
event which makes any statement made in a registration statement or related
prospectus untrue or which requires the making of any changes in such
registration statement, prospectus or documents so that they 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 not
misleading, and subject to the provisions of Section 2.1(h) hereof, promptly
prepare and file with the SEC and furnish a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
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(d) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any comparable successor provisions) no later
than 30 days after the close of the periods covered thereby;
(e) advise each seller of such Registrable Securities, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued;
(f) to the extent applicable, register or qualify the Registrable
Securities covered by such registration statement under such other securities or
state blue sky laws of such jurisdictions as ST shall request, and do any and
all other acts and things which may be necessary under such securities or blue
sky laws to enable the Holders to consummate the public sale or other
disposition in such jurisdictions of the securities owned by such Holders,
except that the Company shall not for any such purpose be required to qualify to
do business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
(g) within a reasonable time before each filing of the
registration statement or prospectus or amendments or supplements thereto with
the Commission, furnish to one counsel selected by ST copies of such documents
proposed to be filed;
(h) if requested by ST or ST's counsel, in writing prior to the
filing of a prospectus supplement or post effective amendment, incorporate into
such supplement or amendment such information regarding such person's ownership
of Registrable Securities as such Person reasonably requests to be included
therein, and promptly make all required filings of such prospectus supplement or
post effective amendment;
(i) cause the securities covered by such registration statement to
be listed on the securities exchange or quoted on the quotation system on which
the class of Registrable Securities is then listed or quoted, if any.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition of any
Registrable Securities that, upon receipt of any notice (a "Suspension Notice")
from the Company of the happening of any event of the kind described in Section
2.4(c)(ii), Section 2.1(h)(i), (ii) or (iii) (provided, that with respect to the
happening of an event in Section 2.1(h)(iii), the Holder shall not be required
to discontinue disposition for a one year period after the effective date of the
Demand Registration) such Holder will forthwith discontinue disposition of
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus referred to in Section 2.4(c), or until it is
advised in writing by the Company that the use of the prospectus may be resumed,
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and has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the Company,
such Holder will deliver to the Company all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article II including, without limitation,
all (i) registration and filing fees and printing expenses (ii) the Company's
internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties) (collectively,
"Internal Expenses") and (iii) fees and expenses of counsel for the Company and
its independent certified public accountants (all such expenses being herein
called "Registration Expenses") will be borne by the Company whether or not any
registration statement becomes effective; provided, however, that in no event
shall Registration Expenses include any underwriting discounts, commissions or
fees attributable to the sale of the Registrable Securities by the Holders or
any counsel, accountants or other persons retained or employed by the Holders.
2.7 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each Holder and ST, and each of their respective
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls any Holder (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") against any and all losses, claims,
damages, liabilities and expenses, joint or several (collectively, "Claims")
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.7(c)) based upon, arising out of, related to or
resulting from any untrue or alleged untrue statement of a material fact
contained in any preliminary prospectus, to the extent used prior to the
effective date of the registration statement or the final prospectus or any
amendment thereof or supplement thereto filed with the SEC, or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading; except insofar as any such
statements are made in reliance upon and in strict conformity with information
furnished in writing to the Company by such seller or any Seller Affiliate for
use therein or arise from such seller's or any Seller Affiliate's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such seller or Seller
Affiliate with a sufficient number of copies of the same.
(b) In connection with any registration statement in which a
Holder is participating, each such Holder will furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the
fullest extent permitted by law, each such Holder will indemnify the Company and
its directors and officers and each Person who controls the Company (within the
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meaning of the Securities Act or the Exchange Act) against any and all losses,
claims, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees and disbursements except as limited by Section
2.7(c)) resulting from any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, prospectus or any
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission is contained in any information or affidavit so furnished in writing by
such seller or any of its Seller Affiliates specifically for inclusion in the
registration statement; provided that the obligation to indemnify will be
several, not joint and several, among such sellers of Registrable Securities,
and the liability of each such seller of Registrable Securities will be in
proportion to, and, provided, further, that such liability will be limited to,
the net amount received by such seller from the sale of Registrable Securities
pursuant to such registration statement; provided, however, that such seller of
Registrable Securities shall not be liable in any such case to the extent that
prior to the filing of any such registration statement or prospectus or
amendment thereof or supplement thereto, such seller has furnished in writing to
the Company information expressly for use in such registration statement or
prospectus or any amendment thereof or supplement thereto which corrected or
made not misleading information previously furnished to the Company.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person except to the extent that the
indemnifying party is actually prejudiced by the failure to give notice) and
(ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(A) the indemnifying party has agreed to pay such fees or expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to the indemnified party or (C) if in the
reasonable opinion of counsel retained by the indemnified party, the
representation by such counsel of the indemnifying party and the indemnified
party would be inappropriate due to actual or reasonably anticipated differing
interests between the indemnified party and the indemnifying party in such
proceedings. If such defense is not assumed by the indemnifying party as
permitted hereunder, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld or delayed). If such defense is
assumed by the indemnifying party pursuant to the provisions hereof, such
indemnifying party shall not settle or otherwise compromise the applicable claim
unless (i) such settlement or compromise contains a full and unconditional
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release of the indemnified party, (ii) such settlement or compromise does not
contain a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of an Indemnified Person or (iii) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, which counsel shall be selected
by ST, in the event he, any Holder or any Seller Affiliate are the indemnified
parties, and by the Company, in the event the Company is the indemnified party.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7(a) or Section 2.7(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such Claims
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 2.7(d)
were determined by pro rata allocation (even if the Holders or any underwriters
or all of them were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in this Section 2.7(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or, except as provided in Section 2.7(d),
defending any such action or claim. Notwithstanding the provisions of this
Section 2.7(d), no Holder shall be required to contribute an amount greater than
the dollar amount by which the net proceeds received by such Holder with respect
to the sale of any Registrable Securities exceeds the amount of damages which
such Holder has otherwise been required to pay by reason of any and all untrue
or alleged untrue statements of material fact or omissions or alleged omissions
of material fact made in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto related to such sale
of Registrable Securities. 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. The Holders' obligations in this Section 2.7(d) to contribute
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shall be several in proportion to the amount of Registrable Securities
registered by them and not joint.
If indemnification is available under this Section 2.7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 2.7(d) without regard to the relative fault of said indemnifying party
or indemnified party or any other equitable consideration provided for in this
Section 2.7(d) subject, in the case of the Holders, to the limited dollar
amounts set forth in Section 2.7(d).
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities.
ARTICLE III - MISCELLANEOUS
3.1 Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, addressed as follows (or at such other address as may be substituted by
notice given as herein provided):
If to the Company:
STi Prepaid, LLC
c/o Leucadia national Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
With copies to (which shall not constitute notice):
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered back,
if telexed; when receipt is acknowledged, if telecopied; and five calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
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Failure to transmit a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is given or made in the manner provided above, it is duly
given, whether or not the addressee receives it.
3.2 Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED,
CONSTRUED AND DETERMINED EXCLUSIVELY IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD
REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
3.3 Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE COMPANY AND THE HOLDER EACH HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH
OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF TO THE COMPANY OR THE HOLDER, AS THE CASE MAY BE,
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS
SPECIFIED IN SECTION 3.1. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
3.4 Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and benefit the Company, each
Holder and their respective successors and assigns.
3.5 Duplicate Originals. All parties may sign any number of copies of
this Agreement. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
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3.6 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
3.7 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the Company
and ST.
3.8 Negotiated Agreement. This Agreement was negotiated by the parties
with the benefit of legal representation, and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to the construction or interpretation hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first
written above.
STI PREPAID, LLC
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Orlando
Title: President
SIGNATURE PAGE 1 OF 2 TO THE REGISTRATION RIGHTS AGREEMENT
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ST FINANCE, LLC
By:
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
Address:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE 2 OF 2 TO THE REGISTRATION RIGHTS AGREEMENT
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