REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of March 8, 2005, between Resource Capital Corp., a Maryland
corporation (the "Company") and Credit Suisse First Boston LLC (the "Initial
Purchaser"), acting for the benefit of the Holders (as defined below).
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. The Company, the Initial Purchaser and Resource Capital Management,
Inc. ("RCM") entered into that certain Purchase/Placement Agreement dated as of
March 2, 2005 (the "Purchase Agreement") in connection with the offering and
sale (the "Offering") of up to 16,866,667 shares of common stock, par value
$15.00 per share, of the Company ("Common Stock").
B. In order to induce the investors who are purchasing the Common Stock
in the Offering to purchase such Common Stock and the Initial Purchaser to enter
into the Purchase Agreement, the Company has agreed to provide the registration
rights provided for in this Agreement for the holders of Registrable Shares (as
defined below).
C. The execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereto, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
Additional Shares: Shares or other securities issued in
respect of the Shares by reason of or in connection with any stock
dividend, stock distribution, stock split, or similar issuance.
Agreement: As defined in the Introductory Paragraph of this
Agreement.
Affiliate: As to any specified Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with, the specified
Person, (ii) any executive officer, director, trustee, managing member
or general partner of the specified Person and (iii) any legal entity
for which the specified Person acts as an executive officer, director,
trustee, managing member or general partner. For purposes of this
definition, "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect
to any Person, shall mean the possession, directly, or indirectly
through one or more intermediaries, of the power to direct or cause the
direction of the management and policies of such Person, whether by
contract, through the ownership of voting securities, partnership
interests, membership interests or other equity interests or otherwise.
Business Day: With respect to any act to be performed
hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York are
authorized or obligated by applicable law, regulation or executive
order to close.
Closing Time: March 8, 2005 or such other time or such other
date as the Initial Purchaser and the Company may agree.
Commission: The Securities and Exchange Commission.
Common Stock: As defined in Recital A hereof.
Company: As defined in the Introductory Paragraph of this
Agreement, and any successor thereto.
End of Suspension Notice: As defined in Section 5(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission pursuant
thereto.
Holder: Each Participant and its direct or indirect
transferees, so long as such Participant or transferee owns any
Registrable Shares.
Indemnified Party: As defined in Section 6(a) hereof.
IPO Registration Statement: As defined in Section 2 hereof.
Management Agreement: That certain agreement dated March 8,
2005 by and between the Company and RCM.
Mandatory Shelf Registration Statement: As defined in Section
2(a) hereof.
NASD: The National Association of Securities Dealers, Inc.
Offering: As defined in Recital A hereof.
Participants: The purchasers in the offering of (i) the
Regulation D Shares from the Company (including those persons
participating in the Company's directed share program) and (ii) Rule
144A Shares and Regulation S Shares from the Initial Purchaser.
Person: An individual, partnership, corporation, limited
liability company, trust, unincorporated organization, government or
agency or political subdivision thereof, or any other legal entity.
Prospectus: The prospectus included in any Registration
Statement, including any preliminary prospectus, and all other
amendments and supplements to any such prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Purchase Agreement: As defined in Recital A of this Agreement,
as amended from time to time.
RCM: Resource Capital Manager, Inc., a Delaware corporation.
Registrable Shares: Each of the Shares and any Additional
Shares, upon original issuance thereof, and at all times subsequent
thereto, including upon the transfer thereof by the original holder or
any subsequent holder, until, in the case of any such Shares or
Additional Shares, as applicable, the earliest to occur of:
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(i) the second anniversary of the initial effective
date of the Mandatory Shelf Registration Statement;
(ii) the date on which such Shares have been sold
pursuant to a Registration Statement or distributed to the
public pursuant to Rule 144;
(iii) the date on which, in the opinion of counsel to
the Company, such Shares not held by Affiliates of the Company
are saleable pursuant to subparagraph (k) of Rule 144; or
(iv) the date on which such Shares are sold to the
Company or any of its subsidiaries.
Registration Expenses: Any and all expenses incident to the
performance of or compliance with this Agreement, including, without
limitation: (i) all Commission, securities exchange, NASD registration,
listing, inclusion and filing fees including, if applicable, the fees
and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained by any holder of Registrable
Shares in accordance with the rules and regulations of the NASD, (ii)
all fees and expenses incurred in connection with compliance with
international, federal or state securities or blue sky laws (including,
without limitation, any registration, listing and filing fees and
reasonable fees and disbursements of counsel in connection with blue
sky qualification of any of the Registrable Shares and the preparation
of a blue sky memorandum and compliance with the rules of the NASD),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, duplicating, printing, delivering and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements, certificates and any other documents relating to the
performance under and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing or inclusion of any of
the Registrable Shares on any securities exchange or the Nasdaq Stock
Market pursuant to Section 4(m) of this Agreement, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or incident
to such performance), and reasonable fees and disbursements of one
counsel for the selling Holders to review the Mandatory Shelf
Registration Statement, any Subsequent Shelf Registration Statement,
and, if the Company notifies the Holders pursuant to Section 2(b)
hereof of its intent to file an IPO Registration Statement within one
year of the date of this Agreement, the IPO Registration Statement, and
(vi) any fees and disbursements customarily paid by issuers in issues
and sales of securities (including the fees and expenses of any experts
retained by the Company in connection with any Registration Statement),
provided, however, that Registration Expenses shall exclude brokers' or
underwriters' discounts and commissions and transfer taxes or transfer
fees, if any, relating to the sale or disposition of Registrable Shares
by a Holder and the fees and disbursements of any counsel to the
Holders other than as provided for in subparagraph (v) above.
Registration Statement: Any Shelf Registration Statement or
the IPO Registration Statement (to the extent that it covers the resale
of any Registrable Shares), including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including
pre-and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
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Regulation D: Regulation D (Rules 501-508) promulgated by the
Commission 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 as a replacement thereto having substantially the same
effect as such regulation.
Regulation D Shares: Shares initially sold by the Company in
accordance with the Purchase Agreement in accordance with Regulation D
and pursuant to the Subscription Agreement (as defined in the Purchase
Agreement).
Regulation S: Regulation S (Rules 901-905) promulgated by the
Commission 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 as a replacement thereto having substantially the same
effect as such regulation.
Regulation S Shares: Shares initially sold by the Company to
the Initial Purchaser and resold by the Initial Purchaser to "non U.S.
persons" in accordance with Regulation S in an "offshore transaction"
in accordance with Regulation S.
Rule 144: Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 144A Shares: Shares initially sold by the Company to the
Initial Purchaser and resold by the Initial Purchaser to "qualified
institutional buyers" (as such term is defined in Rule 144A).
Rule 158: Rule 158 promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 429: Rule 429 promulgated by the Commission pursuant to
the Securities Act, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder.
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Shares: The Rule 144A Shares, the Regulation S Shares and the
Regulation D Shares sold pursuant to the terms and conditions of the
Purchase Agreement or the Subscription Agreement (as defined in the
Purchase Agreement).
Shelf Registration Statement: The Mandatory Shelf Registration
Statement or any Subsequent Shelf Registration Statement.
Subsequent Shelf Registration Statement: As defined in Section
2(d) hereof.
Suspension Event: As defined in Section 5(b) hereof.
Suspension Notice: As defined in Section 5(b) hereof.
Trigger Date: As defined in Section 2(a) hereof.
Underwritten Offering: A sale of securities of the Company to
an underwriter or underwriters for reoffering to the public.
2. Registration Rights.
(a) Mandatory Shelf Registration. As set forth in Section 4 hereof, the
Company agrees to file with the Commission as soon as reasonably practicable but
in no event later than 270 days from the date hereof, a Shelf Registration
Statement on Form S-11 or such other form under the Securities Act then
available to the Company providing for the resale pursuant to Rule 415 from time
to time by the Holders of any and all Registrable Shares (including for the
avoidance of doubt any Additional Shares that are issued prior to the
effectiveness of such Shelf Registration Statement) (such registration
statement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement,
the "Mandatory Shelf Registration Statement"). The Company shall use its
commercially reasonable efforts to cause such Shelf Registration Statement to be
declared effective by the Commission as promptly as practicable following such
filing, and for this purpose, the Company shall be entitled to consider the
advice of the managing underwriter or underwriters of an initial public offering
of the Common Stock which is then pending as to the effect that the
effectiveness of the Shelf Registration Statement could reasonably be expected
to have on the marketing of the initial public offering. Any Shelf Registration
Statement shall provide for the resale from time to time, and pursuant to any
method or combination of methods legally available (including, without
limitation, an Underwritten Offering, a sale through brokers or agents, or a
sale over the internet) by the Holders of any and all Registrable Shares.
In the event the Mandatory Shelf Registration Statement is not filed
with the Commission within 270 days from the date hereof (the "Trigger Date"),
RCM shall forfeit the base management fee it is entitled to receive pursuant to
the Management Agreement for a period commencing from and after the Trigger Date
until the Mandatory Shelf Registration Statement is filed and the Company shall
defer all incentive fee payments to be paid to RCM pursuant to the Management
Agreement from and after the Trigger Date until the Mandatory Shelf Registration
Statement is filed.
(b) IPO Registration. If, prior to the Mandatory Shelf Registration
Statement being declared effective by the Commission, the Company proposes to
file a registration statement on Form S-11 or such other form under the
Securities Act providing for the initial public offering of shares of Common
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Stock (such registration statement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such
registration statement, the "IPO Registration Statement"), the Company will
notify each Holder of the filing (including notifying each Holder of the
identity of the managing underwriters of such initial public offering), within
five (5) Business Days after such filing, and afford each Holder an opportunity
to include in such IPO Registration Statement all or any part of the Registrable
Shares then held by such Holder. Each Holder desiring to include in any such IPO
Registration Statement all or part of the Registrable Shares held by such Holder
shall, within twenty (20) days after delivery of the above-described notice by
the Company, so notify the Company in writing, and in such notice shall inform
the Company of the number of Registrable Shares such Holder wishes to include in
such IPO Registration Statement. Any election by any Holder to include any
Registrable Shares in such IPO Registration Statement will not affect the
inclusion of such Registrable Shares in the Shelf Registration Statement until
such Registrable Shares have been sold under the IPO Registration Statement;
provided, however, that at such time, the Company shall have the right to remove
from the Shelf Registration Statement the Registrable Shares sold pursuant to
the IPO Registration Statement.
(i) Right to Terminate IPO Registration. At any time, the
Company shall have the right to terminate or withdraw any IPO
Registration Statement referred to in this Section 2(b) whether or not
any Holder has elected to include Registrable Shares in such
registration.
(ii) Underwriting. The Company shall notify the Holders of the
identity of the managing underwriters for the Underwritten Offering
proposed under the IPO Registration Statement. The right of any such
Holder's Registrable Shares to be included in any IPO Registration
Statement pursuant to this Section 2(b) shall be conditioned upon such
Holder's participation in such Underwritten Offering and the inclusion
of such Holder's Registrable Shares in the Underwritten Offering to the
extent provided herein. All Holders proposing to distribute their
Registrable Shares through such Underwritten Offering shall enter into
an underwriting agreement in customary form with the managing
underwriters selected by the Company for such underwriting and complete
and execute any questionnaires, powers of attorney, indemnities,
securities escrow agreements and other documents reasonably required
under the terms of such underwriting, and furnish to the Company such
information in writing as the Company may reasonably request for
inclusion in the Registration Statement; provided, however, that no
Holder shall be required to make any representations or warranties to
or agreements with the Company or the underwriters other than
representations, warranties or agreements as are customary and
reasonably requested by the underwriters. Notwithstanding any other
provision of this Agreement, if the managing underwriters determine in
good faith that marketing factors require a limitation on the number of
shares to be included, then the managing underwriters may exclude
shares (including Registrable Shares) from the IPO Registration
Statement and the Underwritten Offering and any Shares included in the
IPO Registration Statement and the Underwritten Offering shall be
allocated, first, to the Company, and second, to each of the Holders
requesting inclusion of their Registrable Shares in such IPO
Registration Statement on a pro rata basis based on the total number of
Registrable Shares then held by each such Holder which is requesting
inclusion. If any Holder disapproves of the terms of any Underwritten
Offering, such Holder may elect to withdraw therefrom by written notice
to the Company and the underwriter, delivered at least ten (10)
Business Days prior to the effective date of the IPO Registration
Statement, provided, that if, in the opinion of counsel, such
withdrawal would necessitate a re-circulation of the Prospectus to
investors, such Holder shall be required to deliver such written notice
at least twenty (20) Business Days prior to the effective date of the
IPO Registration Statement. Any Registrable Shares excluded or
withdrawn from such Underwritten Offering shall be excluded and
withdrawn from the IPO Registration Statement.
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(iii) Hold-Back Agreement. By electing to include Registrable
Shares in the IPO Registration Statement, if any, the Holder shall be
deemed to have agreed not to effect any sale or distribution of
securities of the Company of the same or similar class or classes of
the securities included in the Registration Statement or any securities
convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A, during such periods
as reasonably requested (but in no event for a period longer than
one-hundred eighty (180) days following the effective date of the IPO
Registration Statement, provided each of the executive officers and
directors of the Company and RCM that hold shares of Common Stock or
securities convertible into or exchangeable or exercisable for shares
of Common Stock are subject to the same restriction for the entire time
period required of the Holders hereunder) by the representatives of the
underwriters of the Underwritten Offering pursuant to the IPO
Registration Statement.
(iv) Registrable Shares Not Sold Under IPO Registration
Statement. If (w) the Company terminates or withdraws the IPO
Registration Statement prior to its effectiveness or the distribution
of all Registrable Shares, if any, registered thereunder, (x) the
underwriters exercise their right pursuant to Section 2(b)(ii) of this
Agreement to exclude any Registrable Shares from the IPO Registration
Statement, (y) any Holder elects to withdraw or not to include any
Registrable Shares in the IPO Registration Statement, or (z) any
Registrable Shares are otherwise not registered under and distributed
pursuant to the IPO Registration Statement, then the Company shall file
a Shelf Registration Statement relating to any Registrable Shares not
registered under and distributed pursuant to an IPO Registration
Statement as soon as practicable, but in no event later than (a) in the
case of the withdrawal or abandonment of the offering pursuant to the
IPO Registration Statement, the date which is thirty (30) days after
the earlier of the withdrawal or abandonment of the offering pursuant
to the IPO Registration Statement or (b) the date ninety (90) days
after the consummation of the offering pursuant to the IPO Registration
Statement.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder participating in a registration pursuant to this Section
2 shall bear such Holder's proportionate share (based on the total number of
Registrable Shares sold in such registration) of all discounts and commissions
payable to underwriters or brokers and all transfer taxes and transfer fees in
connection with a registration of Registrable Shares pursuant to this Agreement
and any other expense of the Holders not specifically allocated to the Company
pursuant to this Agreement relating to the sale or disposition of such Holder's
Registrable Shares pursuant to any Registration Statement.
(d) Subsequent Shelf Registration for Additional Shares Issued after
Effectiveness of the Mandatory Shelf Registration Statement. If any Additional
Shares are issued or distributed to Holders after the effectiveness of the
Mandatory Shelf Registration Statement, or such Additional Shares were otherwise
not included in a prior Registration Statement, then the Company shall as soon
as reasonably practicable file an additional shelf registration statement
(including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement, a "Subsequent
Shelf Registration Statement") covering such Additional Shares on behalf of the
Holders thereof in the same manner, and subject to the same provisions in this
Agreement as the Mandatory Shelf Registration Statement, provided that the
provisions of Section 2(a) or 2(b) hereof will not apply to any such Subsequent
Shelf Registration Statement.
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3. Rules 144 and 144A Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Registrable Shares
to the public without registration, the Company agrees to, so long as any Holder
owns any Registrable Shares:
(a) at all times after the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities
to the general public, use its commercially reasonable efforts to make and keep
public information available, as those terms are understood and defined in Rule
144(c);
(b) use its commercially reasonable efforts to file with the Commission
in a timely manner all reports and other documents required to be filed by the
Company under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements); and
(c) if the Company is not required to file reports and other documents
under the Securities Act and the Exchange Act, it will make available other
information as required by, and so long as necessary to permit sales of
Registrable Shares pursuant to, Rule 144A and in any event shall provide to each
Holder a copy of:
(i) the Company's annual consolidated financial statements
(including at least balance sheets, statements of profit and loss,
statements of stockholders' equity and statements of cash flows)
prepared in accordance with U.S. generally accepted accounting
principles, accompanied by an audit report of the Company's independent
accountants, no later than ninety (90) days after the end of each
fiscal year of the Company, and
(ii) the Company's unaudited quarterly financial statements
(including at least balance sheets, statements of profit and loss,
statements of stockholders' equity and statements of cash flows)
prepared in a manner consistent with the preparation of the Company's
annual financial statements, no later than forty-five (45) days after
the end of each fiscal quarter of the Company.
4. Registration Procedures.
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its commercially
reasonable efforts to effect or cause to be effected the registration of the
Registrable Shares under the Securities Act to permit the resale of such
Registrable Shares by the Holder or Holders in accordance with the Holders'
intended method or methods of resale and distribution (which methods shall be
commercially reasonable), and the Company shall:
(a) prepare and file with the Commission, as specified in this
Agreement, a Shelf Registration Statement, which Shelf Registration Statement
shall comply in all material respects as to form with the requirements of the
applicable form and include all financial statements required by the Commission
to be filed therewith, and use its commercially reasonable efforts to cause such
Shelf Registration Statement to become effective as promptly as practicable
following such filing as specified in Section 4(a) and to remain effective,
subject to Section 5 hereof, until the date on which no Holders hold Registrable
Shares, provided, however, that if the Company has an effective Shelf
Registration Statement on Form S-11 under the Securities Act and becomes
eligible to use Form S-3 or such other short-form registration statement under
the Securities Act, the Company may, upon 30 Business Days' prior written notice
to all Holders of Registrable Shares, register any Registrable Shares registered
but not yet distributed under the effective Shelf Registration Statement on such
a short-form Shelf Registration Statement and, once the short-form Shelf
Registration Statement is declared effective, de-register such shares under the
previous Registration Statement or transfer filing fees from the previous
Registration Statement pursuant to Rule 429;
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(b) subject to Section 4(i) hereof, (i) prepare and file with the
Commission such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement effective for the period described in Section 4(a) hereof, (ii) cause
each Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424, and (iii)
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the method or methods of distribution set
forth in the "Plan of Distribution" section of the Prospectus;
(c) furnish to the Holders, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Shares; the Company consents, subject to Section 5, to the lawful
use of such Prospectus, including each preliminary Prospectus, by the Holders,
if any, in connection with the offering and sale of the Registrable Shares
covered by any such Prospectus;
(d) use its commercially reasonable efforts to register or qualify, or
obtain exemption from registration or qualification for, all Registrable Shares
by the time the applicable Registration Statement is declared effective by the
Commission under all applicable state securities or "blue sky" laws of such
domestic United States jurisdictions as the Initial Purchaser or any Holder
covered by a Registration Statement shall reasonably request in writing, keep
each such registration or qualification or exemption effective during the period
such Registration Statement is required to be kept effective pursuant to Section
4(a) and do any and all other acts and things that may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares covered by the Registration Statement;
provided, however, that the Company shall not be required to take any action to
comply with this Section 4(d) if it would require the Company or any of its
subsidiaries to (i) qualify generally to do business in any jurisdiction or to
register as a broker or dealer in such jurisdiction where it would not otherwise
be required to qualify but for this Section 4(d) and except as may be required
by the Securities Act, (ii) subject itself to taxation in any such jurisdiction,
or (iii) submit to the general service of process in any such jurisdiction;
(e) use its commercially reasonable efforts to cause all Registrable
Shares covered by such Registration Statement to be registered and approved by
such other domestic governmental agencies or authorities, if any, as may be
necessary to enable the Holders thereof to consummate the disposition of such
Registrable Shares; provided, however, that the Company shall not be required to
take any action to comply with this Section 4(e) if it would require the Company
or any of its subsidiaries to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 4(e) and except
as may be required by the Securities Act, (ii) subject itself to taxation in any
such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(f) notify the Initial Purchaser and each Holder with Registrable
Shares covered by a Registration Statement promptly and, if requested by the
Initial Purchaser or any such Holder, confirm such advice in writing at the
address determined in accordance with Section 9(b), (i) when such Registration
Statement has become effective and when any post-effective amendments thereto
become effective or upon the filing of a supplement to any prospectus, (ii) of
the issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of such Registration Statement or the
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initiation of any proceedings for that purpose, (iii) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to such Registration Statement or related Prospectus or for
additional information, and (iv) of the happening of any event during the period
such Registration Statement is effective as a result of which such Registration
Statement or the related Prospectus or any document incorporated by reference
therein contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or, in the case of the Prospectus, contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (which information
shall be accompanied by an instruction to suspend the use of the Registration
Statement and the Prospectus until the requisite changes have been made);
(g) during the period of time referred to in Section 4(a) above, use
its commercially reasonable efforts to avoid the issuance of, or if issued, to
obtain the withdrawal of, any order enjoining or suspending the use or
effectiveness of the Shelf Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable Shares
for sale in any jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder with Registrable
Shares covered by a Registration Statement, without charge, at least one (1)
conformed copy of such Registration Statement and any post-effective amendment
or supplement thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(i) except as provided in Section 5, upon the occurrence of any event
contemplated by Section 4(f)(iv) hereof, use its commercially reasonable efforts
to promptly prepare a supplement or post-effective amendment to the Shelf
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and,
upon request, promptly furnish to each requesting Holder a reasonable number of
copies each such supplement or post-effective amendment;
(j) if requested by the representative of the underwriters, if any, or
any Holders of Registrable Shares being sold in connection with an Underwritten
Offering, (i) as promptly as practicable incorporate in a Prospectus supplement
or post-effective amendment such material information as the representative of
the underwriters, if any, or such Holders indicate in writing relates to them
and (ii) use its commercially reasonable efforts to make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received written notification of the matters
to be incorporated in such Prospectus supplement or post-effective amendment;
(k) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form and
reasonably satisfactory to the Company) and take all other reasonable action in
connection therewith in order to expedite or facilitate the distribution of the
Registrable Shares included in such Registration Statement and, in the case of
an Underwritten Offering, make representations and warranties to the Holders of
Registrable Shares covered by such Registration Statement and to the
underwriters in such form and scope as are customarily made by issuers to
selling stockholders and underwriters in underwritten offerings, respectively,
and confirm the same to the extent customary if and when requested;
10
(l) in connection with an Underwritten Offering, use its commercially
reasonable efforts to make available for inspection by one representative
appointed by the Holders of a majority of the Registrable Shares and the
representative of any underwriters participating in any disposition pursuant to
a Registration Statement and one law firm retained by each representative of
such Holders or underwriters, respectively, during normal business hours and
upon reasonable notice, all financial and other records, pertinent corporate
documents and properties of the Company and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative of the Holders, the representative of the
underwriters or counsel thereto in connection with a Shelf Registration
Statement; provided, however, that such records, documents or information that
the Company determines, in good faith, to be confidential and notifies such
representative of the Holders, representative of the underwriters or counsel
thereto are confidential shall not be disclosed by the representative of the
Holders, representative of the underwriters or counsel thereto unless (i) the
disclosure of such records, documents or information is necessary to avoid or
correct a material misstatement or omission in a Registration Statement or
Prospectus, (ii) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) such records, documents or information have been
generally made available to the public by the Company; provided, further, that
to the extent practicable, the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders and the other parties entitled
thereto by one law firm designated by and on behalf of the Holders and the other
parties, which counsel the Company reasonably determines to be acceptable;
(m) use its commercially reasonable efforts (including, without
limitation, seeking to cure in the Company's listing or inclusion application
any deficiencies cited by the exchange or market) to list or include all
Registrable Shares on the New York Stock Exchange or the Nasdaq Stock Market;
(n) use its commercially reasonable efforts to prepare and file in a
timely manner all documents and reports required by the Exchange Act and, to the
extent the Company's obligation to file such reports pursuant to Section 15(d)
of the Exchange Act expires prior to the expiration of the effectiveness period
of the Registration Statement as required by Section 4(a) hereof, the Company
shall register the Registrable Shares under the Exchange Act and shall maintain
such registration through the effectiveness period required by Section 4(a)
hereof;
(o) provide a CUSIP number for all Registrable Shares, not later than
the effective date of the Registration Statement;
(p) (i) otherwise use its commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, (ii) make generally
available to its stockholders, as soon as reasonably practicable, earnings
statements covering at least twelve (12) months that satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 (or any similar rule
promulgated under the Securities Act ) thereunder, no later than ninety (90)
days after the end of each fiscal year of the Company and (iii) delay the
effectiveness of any Registration Statement to which any Holder of Registrable
Shares covered by such Registration Statement shall have, based upon the written
opinion of counsel, objected on the grounds that such Registration Statement
does not comply in all material respects with the requirements of the Securities
Act, such Holder having been furnished with a copy thereof at least two (2)
Business Days prior to the effectiveness thereof, provided that the Company may
request effectiveness of such Registration Statement following such time as the
Company shall have used its commercially reasonable efforts to resolve any such
issue with the objecting Holder and shall have advised the Holder in writing of
its reasonable belief that such filing complies with the requirements of the
Securities Act;
11
(q) provide and cause to be maintained a registrar and transfer agent
for all Registrable Shares covered by any Registration Statement from and after
a date not later than the effective date of such Registration Statement;
(r) in connection with any sale or transfer of the Registrable Shares
(whether or not pursuant to a Registration Statement) that will result in the
security being delivered no longer being Registrable Shares, cooperate with the
Holders and the representative of the underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing the Registrable
Shares to be sold, which certificates shall not bear any transfer restrictive
legends (other than as required by the Company's charter) and to enable such
Registrable Shares to be in such denominations and registered in such names as
the representative of the underwriters, if any, or the Holders may reasonably
request at least three (3) Business Days prior to any sale of the Registrable
Shares;
(s) upon effectiveness of the first registration statement filed by the
Company, the Company will take such actions and make such filings as are
necessary to effect the registration of the Common Stock under the Exchange Act
simultaneously with or as soon as practicable following the effectiveness of the
Registration Statement;
(t) in the case of an Underwritten Offering, use its commercially
reasonable efforts to furnish or cause to be furnished to the underwriters a
signed counterpart, addressed to the underwriters, of: (i) an opinion of counsel
for the Company, dated the date of each closing under the underwriting
agreement, in customary form and reasonably acceptable to counsel for the
Company; and (ii) a "comfort" letter, dated the effective date of such
Registration Statement and the date of each closing under the underwriting
agreement, reasonably acceptable to and signed by the independent public
accountants who have certified the Company's financial statements included in
such Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the Prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to underwriters in
Underwritten Offerings of securities and such other financial matters as such
Holder and the underwriters may reasonably request and customarily obtained by
underwriters in Underwritten Offerings;
(u) a reasonable time prior to the filing of any Shelf Registration
Statement, any Prospectus, any amendment to a Shelf Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Shelf Registration Statement or a Prospectus
after initial filing of a Shelf Registration Statement, provide copies of such
document to the Initial Purchaser on behalf of such Holders; and make
representatives of the Company as shall be reasonably requested by the Holders
of Registrable Shares, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document; and
(v) in the case of an Underwritten Offering, use its commercially
reasonable efforts to cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent underwriter,"
if applicable) that is required to be retained in accordance with the rules and
regulations of the NASD).
The Company may require the Holders to furnish to the Company such
information regarding the proposed distribution by such Holder as the Company
may from time to time reasonably request in writing or as shall be required to
effect the registration of the Registrable Shares and no Holder shall be
entitled to be named as a selling stockholder in any Registration Statement and
no Holder shall be entitled to use the Prospectus forming a part thereof if such
Holder does not provide such information to the Company. Any Holder that sells
Registrable Shares pursuant to a Registration Statement or as a selling
stockholder pursuant to an Underwritten Offering shall be required to be named
as a selling stockholder in the related prospectus and to deliver a prospectus
to purchasers. Each Holder further agrees to furnish promptly to the Company in
writing all information required from time to time to make the information
previously furnished by such Holder not misleading.
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Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4(f)(ii), 4(f)(iii)
or 4(f)(iv) hereof, such Holder will immediately discontinue disposition of
Registrable Shares pursuant to a Registration Statement until such Holder's
receipt of copies of the supplemented or amended Prospectus. If so directed by
the Company, such Holder will deliver to the Company (at the reasonable expense
of the Company) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Shares current at the time of receipt of such notice.
5. Black-Out Period.
(a) Subject to the provisions of this Section 5, the Company shall have
the right, but not the obligation, from time to time to suspend the use of the
Registration Statement following the effectiveness of a Registration Statement
(and the filings with any international, federal or state securities
commissions), if a Suspension Event (as defined below) occurs. If the Company
elects to suspend the effectiveness and/or use of a Registration Statement
following the occurrence of a Suspension Event, the Company, by written notice
to the Initial Purchaser and by written notice, email transmission or such other
means that the Company reasonably believes to be a reliable means of
communication (a "Suspension Notice"), shall notify the Holders, that the
effectiveness of the Registration Statement has been suspended and shall direct
the Holders to suspend sales of the Registrable Shares pursuant to the
Registration Statement until the Suspension Event has ended. A Suspension Event
shall be deemed to have occurred if: (i) the representative of the underwriters
of an Underwritten Offering of common stock of the Company has advised the
Company that the offer or sale of Registrable Shares pursuant to the
Registration Statement would have a material adverse effect on the Company's
Underwritten Offering; (ii) the Board of Directors of the Company in good faith
has determined that the offer or sale of any Registrable Shares would materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company; or (iii) the Board of Directors of the
Company has determined in good faith, that it is required by law, or that it is
in the best interests of the Company, to supplement the Registration Statement
or file a post-effective amendment to the Registration Statement in order to
ensure that the Prospectus included in the Registration Statement (1) contains
the financial information required under Section 10(a)(3) of the Securities Act;
(2) discloses any fundamental change in the information included in the
Prospectus; or (3) discloses any material information with respect to the plan
of distribution not disclosed in the Registration Statement or any material
change to such information. Upon the occurrence of any Suspension Event, the
Company shall use its commercially reasonable efforts to cause the Registration
Statement to become effective or to promptly amend or supplement the
Registration Statement or to take such action as is necessary to make resumed
use of the Registration Statement compatible with the Company's best interests,
as applicable, so as to permit the Holders to resume sales of the Registrable
Shares as soon as practicable. In no event shall the Company be permitted to
suspend the use of a Registration Statement in any twelve (12) month period for
more than forty-five (45) consecutive days or for more than an aggregate of
ninety (90) days, except as a result of a refusal by the Commission to declare
any post-effective amendment to the Registration Statement effective after the
Company has used all commercially reasonable efforts to cause such
post-effective amendment to be declared effective, in which case the Company
shall terminate the suspension of the use of the Registration Statement
immediately following the effective date of the post-effective amendment.
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(b) If the Company gives a Suspension Notice to the Holders to suspend
sales of the Registrable Shares following a Suspension Event, the Holders shall
not effect any sales of the Registrable Shares pursuant to such Registration
Statement (or such filings) at any time after it has received a Suspension
Notice from the Company and prior to receipt of an End of Suspension Notice (as
defined below). If so directed by the Company, each Holder will deliver to the
Company (at the expense of the Company) all copies other than permanent file
copies then in such Holder's possession of the Prospectus covering the
Registrable Shares at the time of receipt of the Suspension Notice. The Holders
may recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) upon delivery by the Company of notice
that the Suspension Event or its potential effects are no longer continuing (an
"End of Suspension Notice"), which End of Suspension Notice shall be given by
the Company to the Holders and the Initial Purchaser in the same manner as the
Suspension Notice promptly following the conclusion of any Suspension Event and
its effect.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser and each Holder (ii) each person, if any, who controls each Initial
Purchaser and each Holder within the meaning of the Securities Act or the
Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of each Initial Purchaser and each Holder or any
person who controls any of the foregoing (each person referred to in clause (i),
(ii) or (iii) are referred to collectively as the "Indemnified Parties"), from
and against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, judgments, expenses, liabilities or actions relating to purchases and
sales of the Securities) to which each Indemnified Party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, judgments, expenses, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus including any document
incorporated by reference therein, or in any amendment or supplement thereto or
in any preliminary Prospectus relating to the Registration Statement, or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus relating to the Registration Statement in reliance upon
and in conformity with written information pertaining to a Holder or furnished
to the Company by or on behalf of a Holder or any participating underwriter
specifically for inclusion therein and (ii) with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to the Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Holder
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Shares concerned, to the extent that a prospectus relating to such
Shares was required to be delivered by such Holder under the Securities Act in
connection with such purchase and any such loss, claim, damage or liability or
such Holder results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Shares to
such person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder; provided, further, however, that this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Shares if requested by such Holders.
14
(b) In connection with any Registration Statement in which a Holder is
participating and as a condition to such participation, each Holder, severally
and not jointly, will indemnify and hold harmless the Company, its officers,
directors, partners, employees, representatives, agents and investment advisers
and each person, if any, who controls any of the foregoing within the meaning of
the Securities Act or the Exchange Act (the "Company Indemnified Persons") from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary Prospectus relating to the Registration Statement, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to a Holder
or furnished to the Company by or on behalf of a Holder or any participating
underwriter specifically for inclusion therein; and, subject to the limitation
set forth immediately preceding this clause, shall reimburse, as incurred, the
Company or any Company Indemnified Person for any legal or other expenses
reasonably incurred by the Company or such Company Indemnified Person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company or any Company
Indemnified Person.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under subsection (a) or (b) above except to the extent that it has been
materially prejudiced by such failure; and provided, further that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who may be counsel to the indemnifying party unless, in the reasonable
judgment of the indemnified party, a potential conflict exists), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
any unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
15
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 6(d), the Holders shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Shares pursuant to the
Registration Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 6 shall survive the sale
of the Shares pursuant to the Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
7. Market Stand-off Agreement.
Each Holder hereby agrees that it shall not, to the extent requested by
the Company or an underwriter of securities of the Company, directly or
indirectly sell, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell (including without
limitation any short sale), grant any option, right or warrant for the sale of
or otherwise transfer or dispose of any Registrable Shares or other shares of
Common Stock or any securities convertible into or exchangeable or exercisable
for shares of Common Stock then owned by such Holder (other than to donees,
partners or other transferees of the Holder who agree to be similarly bound) for
a period of up to (i) 180 days following the effective date of the IPO
Registration Statement of the Company filed under the Securities Act or (ii) 60
days following the date of an Underwritten Offering by the Company pursuant to a
shelf registration statement of the Company filed under the Securities Act;
provided, however, that:
(a) with respect to the 180-day restriction that follows the effective
date of the IPO Registration Statement and the 60-day period that follows the
date of an Underwritten Offering pursuant to a Shelf Registration Statement,
such agreement shall not be applicable to Registrable Shares sold pursuant to
such IPO Registration Statement or Shelf Registration Statement, as the case may
be;
(b) all executive officers and directors of the Company and RCM then
holding shares of Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock shall enter into similar agreements for
not less than the entire time period required of the Holders hereunder; and
16
(c) the Holders shall be allowed any concession or proportionate
release allowed to any executive officer or director that entered into similar
agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
securities subject to this Section 7 and to impose stop transfer instructions
with respect to the Registrable Shares and such other securities of each Holder
(and the securities of every other Person subject to the foregoing restriction)
until the end of such period.
8. Termination of the Company's Obligations.
The Company shall have no further obligations pursuant to this
Agreement at such time as no Registrable Shares are outstanding, provided,
however, that the Company's obligations under Sections 3, 6 and 9(a) through and
including 9(k) of this Agreement shall remain in full force and effect following
such time.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company and Holders beneficially
owning not less than fifty percent (50%) of the then outstanding Registrable
Shares. Notwithstanding the foregoing, a waiver or consent to or departure from
the provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders may be given by such Holder; provided
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(b) Notices. All notices and other communications, provided for or
permitted hereunder shall be made in writing by delivered by facsimile (with
receipt confirmed), overnight courier or registered or certified mail, return
receipt requested, or by telegram:
(i) if to a Holder, at the most current address given by the
transfer agent and registrar of the Shares to the Company; and
(ii) if to the Company, at the offices of the Company at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(c) Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto and shall inure to the benefit of each Holder. The
Company agrees that the Holders shall be third party beneficiaries to the
agreements made hereunder by the Initial Purchaser and the Company, and each
Holder shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights hereunder;
provided, however, that no Holder shall have the right to enforce such
agreements unless and until such Holder fulfills all of its obligations
hereunder.
(d) Stock Legend. In addition to any other legend that may appear on
the stock certificates evidencing the Registrable Shares, for so long as any
Shares remain Registrable Shares each stock certificate evidencing such
Registrable Shares shall contain a legend to the following effect: "THE SHARES
EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND ENTITLED TO THE BENEFITS OF A
CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED MARCH 8, 2005."
17
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(F) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY
OTHER STATE.
(g) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties hereto that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(h) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(i) Registrable Shares Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Shares is required hereunder, Registrable Shares held by the Company or its
Affiliates shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(j) Survival. This Agreement is intended to survive the consummation of
the transactions contemplated by the Purchase Agreement. The indemnification and
contribution obligations under Section 6 of this Agreement shall survive the
termination of the Company's obligations under Section 2 of this Agreement.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the provisions of this
Agreement. All references made in this Agreement to "Section" refer to such
Section of this Agreement, unless expressly stated otherwise.
[Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
RESOURCE CAPITAL CORP.
By:
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC,
FOR ITSELF AND ON BEHALF OF THE HOLDERS
BY: CREDIT SUISSE FIRST BOSTON LLC
By:
------------------------------------
Name:
Title:
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