REGISTRATION RIGHTS AGREEMENT Dated as of [●], 2019
Exhibit 10.1
Dated as of [●], 2019
TABLE OF CONTENTS
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Page
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Section 1
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Certain Definitions
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1
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Section 2
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Demand Registrations
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3
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Section 3
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Piggyback Registrations
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6
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Section 4
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S-3 Registration
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7
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Section 5
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Lock-Up Agreements
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8
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Section 6
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Registration Procedures
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8
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Section 7
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Registration Expenses
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12
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Section 8
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Indemnification
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13
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Section 9
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Participation in Underwritten Registrations
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15
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Section 10
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Expenses
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16
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Section 11
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Aggregation of Stock
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16
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Section 12
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Entire Agreement
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16
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Section 13
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Governing Law; Venue; Service of Process
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16
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Section 14
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Successors and Assignees; Assignment
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17
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Section 15
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Notices
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17
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Section 16
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Modifications; No Implied Waiver
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17
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Section 17
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Severability
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18
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Section 18
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Headings
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18
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Section 19
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Counterparts
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18
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Section 20
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Construction; Interpretation
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18
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Section 21
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No Inconsistent Agreement
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19
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Section 22
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No Joint Venture, Etc.
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19
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Section 23
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Specific Performance
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19
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Section 24
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Securities Law Acknowledgment
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19
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Section 25
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Term
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19
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Section 26
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Effectiveness
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19
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SCHEDULES
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Schedule 1
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Shareholders
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i
THIS REGISTRATION RIGHTS AGREEMENT, dated as of [●],
2019 (this “Agreement”), is by and among Safe Auto Insurance Group, Inc., an Ohio corporation (the “Company”), and each of the Persons listed on Schedule 1 hereto (such persons, in their capacity as holders of Registrable Securities, including any permitted transferees hereunder, the “Shareholders” and each a “Shareholder” and, the Shareholders together with the Company,
the “Parties”).
WHEREAS, the board of directors of the Company (the “Board”) has determined that it is advisable and in the best interests of the Company and its shareholders to take steps to enable the Company to effect an initial public offering of the Company’s common equity (the “IPO”);
and
WHEREAS, upon the effectiveness of the Amended and Restated Articles of Incorporation of the Company to occur substantially
concurrently with the IPO, all outstanding voting common shares, par value $0.001 per share, of the Company and all outstanding non-voting common shares, par value $0.001 per share, of the Company will be reclassified as and converted into common
shares, par value $0.01 per share, of the Company (the “Common Shares”); and
WHEREAS, in connection with the IPO, the Company and the Shareholders desire to enter into this Agreement in order to provide
the Shareholders the registration rights described herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree as follows:
Section 1 Certain Definitions
In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Affiliate” means, with reference to
any Person, any other Person of which such Person is a member, director, officer, general partner or employee, or any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such Person.
“Board” shall have the meaning set forth in the Preamble.
“Business Day” means any day other
than a Saturday or Sunday that is not a legal holiday or a day on which banks are generally authorized or obligated by law or regulation to close in the City of New York.
“Deshe Family Shareholders” means
those persons or trusts listed as Deshe Family Shareholders on Schedule 1.
“Diamond Family Shareholders” means
those persons or trusts listed as Diamond Family Shareholders on Schedule 1.
“Exchange Act” means the United
States Securities Exchange Act of 1934, as amended.
“Initiating Shareholder” shall have
the meaning set forth in Section 2(a).
“Indemnified Persons” means the
Shareholder Indemnified Persons (as defined below) or the Company Indemnified Persons (as defined below), as the case may be.
“Person” means any individual,
corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, governmental authority or other entity of any kind.
“Preliminary Prospectus” means any
preliminary Prospectus (as defined below) or preliminary Prospectus supplement that may be included in any Registration Statement (as defined below).
“Prospectus” means the prospectus or
prospectuses included in any Registration Statement (including a prospectus that includes information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance on Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, and all supplements to the prospectus, including all material
incorporated by reference in such prospectus.
“Public Offering” means the offer of
Common Shares (or securities exercisable or convertible into or redeemable for Common Shares) on a broadly-distributed basis to the public pursuant to an effective Registration Statement under the Securities Act (other than a Registration Statement
on Form ▇-▇, ▇▇▇▇ ▇-▇ or any similar or successor form) pursuant to a firm-commitment or best-efforts underwriting or purchase commitment.
“Registrable Securities” means (a) any Common Shares (including any Common Shares
issuable or issued upon exercise, exchange, redemption or conversion of any securities) owned by any Shareholder and (b) the securities issued or issuable with respect to such Common Shares by way of stock dividend or stock split or in connection
with a combination of shares, merger, consolidation, business combination, scheme of arrangement, amalgamation, recapitalization or similar transaction; provided,
however, that Registrable Securities shall not include (i) any securities sold or disposed of either pursuant to an effective Registration Statement or
pursuant to Rule 144 under the Securities Act, (ii) any securities that have ceased to be outstanding or (iii) as to any Shareholder, the securities owned by such Shareholder to the extent that all such securities may be sold in a single transaction
without volume limitations or other restrictions on transfer pursuant to Rule 144 under the Securities Act.
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“Registration Statement” means any
registration statement of the Company filed with the SEC (as defined below) that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such registration statement.
“SEC” means the United States
Securities and Exchange Commission.
“Securities Act” means the United
States Securities Act of 1933, as amended.
“Shareholder” shall have the meaning
set forth in the Preamble.
“Underwritten registration or underwritten
offering” means a transaction registered with the SEC in which securities of the Company are sold to underwriters for reoffering to the public.
“WKSI” means a well-known seasoned
issuer, as defined in Rule 405 under the Securities Act.
Section 2 Demand
Registrations.
(a) Right to Request Registration. Subject to Section 2(c), at any time or
from time to time following 180 days after the consummation by the Company of the IPO, each of (y) the Deshe Family Shareholders and (z) the Diamond Family Shareholders may request at any time (at which time, such requesting Shareholders shall be
referred to as the “Initiating Shareholders”) in writing and require that
the Company register under the Securities Act all or part of their Registrable Securities (a “Demand Registration”). Promptly after its receipt of any such request for Demand Registration, the Company shall give written notice of such request to all other Shareholders holding Registrable Securities and shall,
subject to the provisions of Section 2(c) hereof, include in such registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the
Company’s written notice, except in the case of a “takedown” off of a shelf Registration Statement, in which case such time period shall be three (3) days after the receipt of the Company’s written notice. Notwithstanding the foregoing, the Company
shall have no obligation to register Registrable Securities pursuant to this Section 2(a) if, based on then current market prices, the number of Registrable Securities requested to be included in such registration by the Shareholders would not
yield gross proceeds to the selling Shareholders of at least $30 million.
(b) Priority on Demand Registrations. Subject to the provisions of this Section 2, the Company shall not include in any Demand Registration any
securities other than Registrable Securities without: (i) the written consent of the Shareholders representing at least a majority of the Registrable Securities to be included in such registration and (ii) if such Demand Registration is an
underwritten offering, the consent of the managing underwriter(s). If the managing underwriter(s) in any requested Demand Registration advise(s) the Company and the Initiating Shareholders of the Registrable Securities proposed to be registered in
writing that in its or their opinion the number of Registrable Securities proposed to be included in any such registration exceeds the largest number of securities that can be expected to be sold in such offering and/or that the number of Registrable
Securities proposed to be included in any such registration would have an adverse effect on the offering, including the price per share at which the Company’s equity securities can be sold in such offering, the Company shall include in such
registration only the number of Registrable Securities that in the opinion of such managing underwriter(s) can be sold without adversely affecting the offering; provided,
however, that the number of Registrable Securities to be sold in such underwriting shall not be reduced unless all other securities are first entirely
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excluded from the underwriting. If the number of Registrable
Securities that can be sold is less than the number of Registrable Securities proposed to be registered, the number of Registrable Securities to be so sold shall be allocated pro rata among the Shareholders of Registrable Securities that desire to
participate in such registration on the basis of the amount of Registrable Securities beneficially owned by such Shareholders. If the number of shares that the Initiating Shareholders are allowed to include in a Demand Registration is less than 75%
of the number of Registrable Securities that such Initiating Shareholders requested to be included in such Demand Registration due to a reduction by the Company pursuant to the provisions of this Section 2(b), such Demand Registration shall not be
counted for purposes of the limitations to two registrations set forth in the second and fourth sentences of Section 2(c) of this Agreement for the Initiating Shareholders.
(c) Restrictions on Demand Registrations. The Company shall not be obligated to effect more than one (1) Demand Registration within any (i) twelve
(12)-month period unless the Company is eligible for S-3 Registration (as defined below) and (ii) six (6)-month period if the Company is eligible for S-3 Registration. The Company shall not be obligated to effect any Demand Registration within three
(3) months after the effective date of a previous S-3 Registration or a previous registration under which the Shareholders had piggyback registration rights pursuant to Section 3 hereof wherein the Shareholders were permitted to register, and
actually sold, at least 50% of the Registrable Securities requested to be included therein by such Shareholders. The Company shall not be obligated to take action to effect any Demand Registration after the Company has effected two (2) such
registrations for each of (y) the Deshe Family Shareholders and (z) the Diamond Family Shareholders, pursuant to this Section 2(c) and such registrations have been declared effective. The Company may postpone or withdraw for up to one hundred twenty
(120) days the confidential submission, filing or the effectiveness of (or suspend the use of) a Registration Statement for a Demand Registration if (A) based on the reasonable judgment of the disinterested members of the Board, such postponement or
withdrawal is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time or (B) the Company is pursuing a material financing, material
acquisition or other material corporate transaction; provided that if the Company exercises its right to withdraw the filing or the effectiveness of a
Registration Statement for a Demand Registration then the Initiating Shareholders may withdraw its or their request for such Demand (and such Demand shall not count against such Initiating Shareholders). The Company shall provide written notices to
the relevant Initiating Shareholders requesting such Demand Registration of (x) any postponement or withdrawal of the filing or effectiveness of (or suspension of the use of) a Registration Statement pursuant to this Section 2(c), (y) the Company’s
decision to refile or seek effectiveness of such Registration Statement following such withdrawal or postponement (or suspension) and (z) the effectiveness of such Registration Statement. The Company may defer the filing of a particular Registration
Statement pursuant to this Section 2(c) only once during any twelve-month period. The restrictions set forth in this Section 2(c) shall apply regardless of the form of the Registration Statement containing Registrable Securities and for the avoidance
of doubt shall apply to S-3 Registrations. Notwithstanding anything to the contrary herein, the Company shall have no obligation to register, file any Registration Statement or take any other action during any underwriter lock-up period applicable to
the Company’s Public Offering to the extent any such action would result in a violation of such lock-up agreement of the Company.
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(d) Selection of Underwriters. If any Registrable Securities covered by a Demand Registration are to be sold in an underwritten offering, the managing
underwriter(s) to administer the offering shall be selected by the Initiating Shareholders representing a majority of the Registrable Securities participating in such offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed.
(e) Effective Period of Demand Registrations. If any Initiating Shareholders
request(s) a Demand Registration pursuant to Section 2(a) above, such Demand Registration shall not be deemed to have been effected unless the Registration Statement filed pursuant to such Demand Registration has been effective for a period equal
to ninety (90) days (or three hundred (300) days in the case of a shelf S-3 Registration Statement) from the date on which such Registration Statement became effective (or if such Demand Registration is not effective during any period within such
ninety (90) days (or three hundred (300) days in the case of a shelf S-3 Registration Statement), such ninety (90)-day (or three hundred (300)-day in the case of a shelf S-3 Registration Statement) period shall be extended by the number of days
during such period when such Registration Statement is not effective), or such shorter period which shall terminate when all of the Registrable Securities covered by such Demand Registration have been sold pursuant to such Demand Registration or
otherwise disposed of by such Initiating Shareholders. If the Company shall withdraw any Demand Registration pursuant to Section 2(c) (a “Withdrawn Demand
Registration”), the Initiating Shareholders of the Registrable Securities remaining unsold and originally covered by such Withdrawn Demand Registration shall
be entitled to a replacement Demand Registration which (subject to the provisions of this Section 2) the Company shall use its reasonable best efforts to keep effective for a period commencing on the effective date of such Demand Registration and
ending on the earlier to occur of the date (i) which is ninety (90) days (or three hundred (300) days in the case of a shelf S-3 Registration Statement) from the effective date of such Demand Registration and (ii) on which all of the Registrable
Securities covered by such Demand Registration have been sold or otherwise disposed of such Initiating Shareholders. Each such additional Demand Registration otherwise shall be subject to all of the provisions of this Agreement.
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Section 3 Piggyback
Registrations.
(a) Right to Piggyback. At any time or from time to time following the date
of this Agreement, whenever the Company proposes to register any equity securities under the Securities Act (other than a Registration Statement (i) relating to shares issuable upon exercise of employee share options or in connection with any
employee benefit, equity incentive or similar plan of the Company or (ii) in connection with any merger, consolidation, business combination, scheme of arrangement or amalgamation by the Company or any Affiliate of the Company or the acquisition by
the Company or any such Affiliate of the shares or the assets of any other Person or other registration statement on Form S-4 (clauses (i) and (ii) are referred to as “Permitted Offerings”)) for purposes of a Public Offering of such shares for its own account, and the registration form to be used may be used for any
registration of Registrable Securities (a “Piggyback Registration”), the
Company shall give prompt written notice to all Shareholders of its intention to effect such a registration and, subject to Section 3(b) and Section 3(c) hereof, shall include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company’s written notice; provided that any participation in such Public Offering shall be on terms not less favorable, taken as a whole, than the Company’s participation therein. The Company may postpone or
withdraw the filing or the effectiveness of a Piggyback Registration at any time in its discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing
underwriter(s) advise(s) the Company in writing that in its or their opinion the number of securities requested to be included in such registration exceeds the largest number that can be sold in such offering and/or that the number of Registrable
Securities proposed to be included in any such registration would have an adverse effect on the offering, including the price per share at which the Company’s equity securities can be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii) second, the Registrable Securities requested to be included therein by the Shareholders, pro rata among the Shareholders of such Registrable Securities on the basis of the
number of Registrable Securities requested to be registered by such Shareholders and (iii) third, other securities requested to be included in such registration pro rata among the holders of such securities on the basis of the number of shares
requested to be registered by such holders or as such holders may otherwise agree in writing.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of a holder of the Company’s
securities other than Registrable Securities, and the managing underwriter(s) advise(s) the Company in writing that in its or their opinion the number of securities requested to be included in such registration exceeds the largest number that can be
sold in such offering and/or that the number of Registrable Securities proposed to be included in any such registration would have an adverse effect on the offering, including the price per share at which the Company’s equity securities can be sold
in such offering, the Company shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, together with the Registrable Securities requested to be included therein by the
Shareholders, pro rata among (A) the holders of securities requesting such registration and (B) the Shareholders of such Registrable Securities, in each case, on the basis of the number of Registrable Securities requested to be registered by such
Shareholders or holders of securities, as applicable, (ii) second, securities the Company proposes to sell and (iii) third, other securities requested to be included in such registration pro rata among the holders of such securities on the basis of
the number of shares requested to be registered by such holders or as such holders may otherwise agree in writing.
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(d) Selection of Underwriters. If any Piggyback Registration is a primary underwritten offering, the Company shall have the right to select the managing
underwriter(s) to administer any such offering.
(e) Other Jurisdictions. If the Company at any time proposes to effect a Public Offering in a jurisdiction other than the United States of any of its
shares or any options, warrants or other rights to acquire, or securities convertible into or exchangeable for, its shares (other than a Public Offering relating to a Permitted Offering), the Company and the Shareholders will have the rights and be
subject to the obligations agreed in this Section 3 to the extent and where applicable.
Section 4 S-3 Registration. At any time that the Company is eligible to use Form S-3, each of (y)
the Deshe Family Shareholders and (z) the Diamond Family Shareholders may request (by written notice to the Company stating the number of Registrable Securities proposed to be sold and the intended method of disposition) that the Company file a
registration statement on Form S-3 (an “S-3 Registration”) for a Public Offering of all or any portion of such Shareholder’s Registrable Securities, or
that the Company take all steps necessary to include such Registrable Securities in a Form S-3 that the Company has previously filed under Rule 415 under the Securities Act; provided that the Company shall not be obligated to effect more than two Public Offerings on an underwritten basis that are
initiated by the Shareholders within any twelve (12)-month period. Whenever the Company is required pursuant to this Section 4 to effect the registration of Registrable Securities, each of the procedures and requirements of Section 2 (including but
not limited to the requirement that the Company notify all Shareholders from whom notice has not been received and provide them with the opportunity to participate in the offering and the postponement, withdrawal and suspension provisions) shall
apply to such registration. If at the time of such request the Company is a WKSI, such S-3 Registration shall, upon the approval of the board of directors of the Company, cover an unspecified number of Common Shares to be sold by the Company and the
Shareholders. The Company will use its reasonable best efforts to qualify for Form S-3 registration or a similar short-form registration. Notwithstanding the foregoing, the Company shall have no obligation to effect any underwritten offering pursuant
to this Section 4 if, based on the current market prices, the number of Registrable Securities requested to be included in such offering by the Shareholders would not yield gross proceeds to the selling Shareholders of at least $30 million.
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Section 5 Lock-Up Agreements. In connection with each underwritten offering, the Company and each Shareholder, if requested, agree to be bound by the underwriting agreement’s lock-up restrictions (which
must apply in like manner to all Shareholders); provided that in no event shall any lock-up restriction exceed a period of 180 days from the date of the final
prospectus for any such Public Offering. The Company shall cause its executive officers and directors (and managers, if applicable) and shall use commercially reasonable efforts to cause other holders of Common Shares who beneficially own (within the
meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the date of this Agreement) any of the Common Shares participating in such offering, to enter into lock-up agreements that contain restrictions that are no less restrictive than
the restrictions contained in the lock-up agreements executed by the Shareholders.
Section 6
Registration Procedures
(a) Whenever
Shareholders request that any Registrable Securities be registered with the SEC pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with
the intended methods of disposition thereof, and pursuant thereto the Company shall:
(i) prepare and
file with or submit to the SEC a Registration Statement with respect to such Registrable Securities as soon as practicable, but in any event within sixty (60) days of written request from a Shareholder or Shareholders, and use its reasonable best
efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, furnish to the Shareholders of Registrable
Securities covered by such Registration Statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if reasonably requested by such
Shareholders, the exhibits incorporated by reference, and such Shareholders shall have the reasonable opportunity to object to any information pertaining to such Shareholders that is contained therein and the Company will make the corrections
reasonably requested by such Shareholders with respect to such information prior to filing any Registration Statement or Prospectus;
(ii) prepare
and file with or submit to the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than ninety
(90) days (or three hundred (300) days in the case of a shelf S-3 Registration Statement), in the case of a Demand Registration, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration
Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement;
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(iii) furnish
the number of copies of such Registration Statement and the Prospectus included in such Registration Statement (including each preliminary Prospectus and each amendment and supplement thereto) as reasonably required by each seller of Registrable
Securities under such Registration Statement, and such other documents as each seller may reasonably request in writing in order to facilitate the disposition of Registrable Securities owned by each seller; provided, however, that the Company shall have no obligation to furnish copies of a final prospectus if the
conditions of Rule 172(c) under the Securities Act are satisfied by the Company;
(iv) use its
reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any seller reasonably requests in writing and do any and all other acts and things that may be
reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; provided
that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this clause (iv), (B) subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction;
(v) promptly
notify each seller of Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at
the request of any such seller, to prepare a supplement to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an 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 light of the circumstances under which they were made, not misleading;
(vi) in the
case of an underwritten offering, enter into such customary agreements (including underwriting agreements in customary form and containing customary indemnification provisions in favor of the underwriters) and take all such other actions as the
Shareholders of the Registrable Securities being sold or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including making members of senior management of the Company reasonably
available to participate in, and cause them to reasonably cooperate with the underwriters in connection with, “roadshow” and other customary marketing activities) and cause to be delivered to the underwriters and the sellers, if any, opinions of
counsel to the Company in customary form, covering such matters as are customarily covered by opinions for an underwritten offering as the underwriters may reasonably request and addressed to the underwriters and the sellers;
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(vii) make
available for inspection by a seller of Registrable Securities pursuant to a Registration Statement hereunder, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent
retained on behalf of such seller or underwriter, all material financial and other records, material corporate documents and material properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller representative, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(viii) use its
reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or automated interdealer quotation system on which securities of the same class issued by the Company are then listed or quoted;
(ix) provide a
transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(x) if
requested, cause to be delivered, immediately prior to the effectiveness of the Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), letters from the
Company’s independent certified public accountants (and the independent certified public accountants for any other acquired company or business whose financial statements are required to be included in such Registration Statement in accordance with
the applicable requirements of Regulation S-X) addressed to the underwriters stating that such accountants are independent public accountants or an independent registered public accounting firm within the meaning of the Securities Act and the
applicable rules and regulations adopted by the SEC thereunder and, to the extent applicable, the PCAOB, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary underwritten offerings, as the case may be;
(xi) make
generally available to Shareholders a consolidated earnings statement (which need not be audited) for the twelve (12) months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such
period, which earnings statement shall satisfy the requirements of an earnings statement under Section 11(a) of the Securities Act;
(xii) promptly
notify each seller of Registrable Securities and the underwriter or underwriters, if any:
(1) when the
Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment,
when the same has become effective;
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(2) of any
written request by the SEC for amendments or supplements to the Registration Statement or Prospectus;
(3) of the
notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the
receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or “blue sky” laws of any jurisdiction; and
(xiii) use its
reasonable best efforts to obtain as soon as practicable the lifting of any stop order that might be issued suspending the effectiveness of such Registration Statement.
(b) The Company
shall make available to each Shareholder whose Registrable Securities are included in a Registration Statement (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of each
Registration Statement and any amendment thereto and each Preliminary Prospectus and Prospectus and each supplement thereto. The Company will promptly notify each such Shareholder by facsimile of the effectiveness of each Registration Statement or
any post-effective amendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable
and shall file an acceleration request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be
subject to review.
(c) At all
times after the Company has filed a Registration Statement with the SEC pursuant to the requirements of either the Securities Act or the Exchange Act, the Company shall file all reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder, all to the extent required to enable such Shareholders to be eligible to sell Registrable Securities pursuant to Rule 144 under the Securities Act.
(d) The Company
may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company any information regarding such seller and the distribution of such securities as the Company may from time to time reasonably
request in writing in connection with such registration. The Company’s obligations to a Shareholder under this Agreement shall be subject to the compliance by such Shareholder with the terms and conditions applicable to such Shareholder under this
Agreement.
11
(e) Each seller
of Registrable Securities agrees that, upon written notice by the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such seller will forthwith discontinue disposition of Registrable Securities for a
reasonable length of time not to exceed sixty (60) days until such seller is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented Prospectus as contemplated by Section 6(b) hereof, and,
if so directed by the Company, such seller will promptly deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such seller’s possession which shall not be disseminated or made available to any Person,
of the Prospectus covering such Registrable Securities current at the time of receipt of such notice; provided, however, that such postponement of sales of Registrable Securities by the Shareholders shall not exceed ninety (90) days in the aggregate in any twelve (12)-month period. If the Company shall give any
written notice to suspend the disposition of Registrable Securities pursuant to a Prospectus, the Company shall extend the period of time during which the Company is required to maintain the Registration Statement effective pursuant to this Agreement
by the number of days during the period from and including the date of the giving of such notice to and including the date such seller either is advised by the Company in writing that the use of the Prospectus may be resumed or receives the copies of
the supplemented Prospectus contemplated by Section 6(a)(iii) and Section 6(b) hereof.
Section 7 Registration
Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with
securities or “blue sky” laws, listing application fees, printing expenses, transfer agent’s and registrar’s fees, costs of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of
counsel for the Company and all independent certified public accountants and other Persons retained by the Company (all such expenses being herein called “Registration
Expenses”) (but not including any underwriting discounts or commissions or transfer taxes attributable to the sale or disposition of Registrable Securities),
shall be borne by the Company. In addition, the Company shall pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review,
the expense of any liability insurance and the expenses and fees for listing or quoting the securities to be registered on each securities exchange or automated interdealer quotation system on which they are to be listed or quoted.
(b) In
connection with each Demand Registration, S-3 Registration or Piggyback Registration initiated hereunder, the Company shall reimburse the Shareholders covered by such registration or sale for the reasonable fees and disbursements of one (1) law firm
to represent all Shareholders participating in such registration or sale chosen by the Shareholders holding a majority of the Registrable Securities included in such registration or sale.
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(c) The
obligation of the Company to bear the Registration Expenses and to reimburse the Shareholders for the expenses described in Section 7(b) hereof shall apply irrespective of whether a registration, once properly demanded, if applicable, becomes
effective, is withdrawn or suspended, is converted to another form of registration and irrespective of when any of the foregoing shall occur; provided, however, that Registration Expenses and the fees and disbursements reimbursed by the Company under Section 7(b) hereof for any Registration Statement withdrawn
solely at the request of a Shareholder(s) (unless withdrawn following postponement of filing by the Company in accordance with Section 2(c)(A) or Section 2(c)(B) hereof or due to adverse market conditions) or any supplements or amendments to a
Registration Statement or Prospectus resulting from a misstatement furnished to or on behalf of the Company by or on behalf of a Shareholder shall be borne by such Shareholder; provided that, for the avoidance of doubt, if a Registration Statement is withdrawn solely at the request of a Shareholder due to adverse market conditions, such Registration Statement shall count as a Demand Registration for
purposes of Section 2(c) hereof.
Section 8 Indemnification.
(a) In
connection with any Registration Statement in which a Shareholder of Registrable Securities is participating, the Company shall agree that in the event of any registration under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless, to the fullest extent permitted by applicable law, each Shareholder, and the respective directors, officers, members, general partners, limited partners, employees, agents and representatives of each Shareholder, each
Person who controls each such Shareholder (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and the directors, officers, members, general partners, limited partners, employees, agents and representatives of
each such controlling Person (collectively, the “Shareholder Indemnified Persons”) from and against any and all losses, claims, damages, liabilities (joint or
several), costs (including attorney’s fees and disbursements), and expenses, including amounts paid in settlement (collectively, “Losses”), without
duplication, (i) in connection with, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or 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 (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading, except (A) to the
extent that such untrue statement or alleged untrue statement or omission or alleged omission has been made in reliance upon and in conformity with information furnished in writing to or on behalf of the Company by or on behalf of such Shareholder
expressly for use therein, (B) if it was caused by the Shareholder’s failure to deliver to the Shareholder’s immediate purchaser a copy of the Registration Statement, Preliminary Prospectus or Prospectus (if the same was required by applicable law to
be so delivered) after the Company has furnished the Shareholder with a sufficient number of copies of the same or (C) if it arises out of or is based upon offers or sales by the Shareholder “by means of” (as defined in Rule 159A under the Securities
Act) a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Company, or (ii) for any violation or alleged violation by the Company of any United States federal, state or common law rule
or regulation applicable to the Company. The Company shall reimburse each such Shareholder Indemnified Person for any out-of-pocket legal or any other expenses actually and reasonably incurred by it in connection with investigating or defending such
Losses.
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(b) In
connection with any Registration Statement in which a Shareholder is participating, each such Shareholder shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company, and the respective directors, officers,
members, general partners, limited partners, employees, agents and representatives of the Company, each Person who controls the Company and (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and the directors,
officers, members, general partners, limited partners, employees, agents and representatives of each such controlling Person (collectively, the “Company Indemnified
Persons”) from and against any and all Losses, without duplication, in connection with, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Preliminary
Prospectus or Prospectus or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not
misleading, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission has been made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of such
Shareholder expressly for use therein, (ii) such Shareholder’s failure to deliver to its immediate purchaser a copy of the Registration Statement, Preliminary Prospectus or Prospectus (if the same was required by applicable law to be so delivered by
such Shareholder) after the Company has furnished the Shareholder with a sufficient number of copies of the same or (iii) offers or sales by the Shareholder “by means of” (as defined in Rule 159A under the Securities Act) a “free writing prospectus”
(as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Company; provided, however, that the obligation to indemnify and hold harmless shall be several, not joint and several, among such Shareholders and the liability of each such Shareholder shall be in proportion to and
limited to the gross proceeds received by such Shareholder from the sale of Registrable Securities pursuant to such Registration Statement. Such Shareholder shall reimburse each such Company Indemnified Person for any out-of-pocket legal or any other
expenses actually and reasonably incurred by it in connection with investigating or defending such Losses.
(c) Each
Indemnified Person shall give prompt written notice to the party or parties from which indemnity is sought (the “Indemnifying Party”) of the commencement of
any action or proceeding (including any governmental investigation) (collectively, a “Proceeding”) with respect to which such Indemnified Person seeks
indemnification or contribution pursuant hereto; provided, however,
that the failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any obligation or liability hereunder, except to the extent the Indemnifying Party was prejudiced by such failure. The Indemnifying Party shall have
the right, exercisable by giving written notice to an Indemnified Person within twenty (20) days after receipt of written notice from such Indemnified Person of such Proceeding, to assume, at the Indemnifying Party’s expense, the defense of such
Proceeding, with counsel reasonably satisfactory to such Indemnified Person and shall pay as incurred the fees and disbursements of such counsel related to such Proceeding; provided,
however, that an Indemnified Person or Indemnified Persons (if more than one Indemnified Person is named in any Proceeding) shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Person or Indemnified Persons. Whether or not such defense is assumed by the
Indemnifying Party, such Indemnifying Party or Indemnified Person or Indemnified Persons will not be subject to any obligation or liability for any settlement made without its or their written consent, which settlement shall include as an
unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person an irrevocable release from all liability in respect of such claim or litigation.
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(d) The
indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of Registrable Securities.
(e) If the
indemnification provided for in this Section 8 is unavailable to an Indemnified Person or is insufficient to hold such Indemnified Person harmless for any Losses in respect to which this Section 8 would otherwise apply by its terms, then, in lieu of
the amount paid or payable under Section 8(a) or Section 8(b) hereof, as applicable, the Indemnifying Party and the Indemnified Person, shall contribute to the aggregate Losses (i) in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand, and the Indemnified Person on the other hand, with respect to the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party on the one hand, and the Indemnified Person on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by or on behalf of the Indemnifying Party or by or on behalf of the Indemnified Person, and by 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 or equitable if the contribution pursuant to this Section 8(e) were to be determined solely by pro rata allocation or by any other method of allocation that does
not take into account such equitable considerations. In no event shall the liability of an Indemnifying Party under this Section 8(e) be greater in amount than such Person would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 8(a) or Section 8(b) hereof, as applicable, had been available under the circumstances. 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 fraudulent misrepresentation. A Shareholder’s obligation to contribute pursuant to this Section 8(e) shall be in proportion to and limited to the gross proceeds received by such
Shareholder from the sale of Registrable Securities pursuant to such Registration Statement.
Section 9 Participation in Underwritten Registrations. Notwithstanding anything in this Agreement to the contrary, no Person may
participate in any registration hereunder that is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements not inconsistent with the terms of this Agreement approved by the
Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting
arrangements; provided that a Shareholder shall only be required to make customary representations or warranties to the Company or the underwriters (including
representations and warranties regarding such Shareholder and such Shareholder’s intended method of distribution) and to undertake only customary indemnification obligations to the underwriters with respect thereto.
15
Section 10 Expenses. Except as otherwise expressly provided for herein, all costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party incurring such costs and expenses.
Section 11 Aggregation of Stock. All Registrable Securities held by or acquired by any Affiliate(s) of a Shareholder will be aggregated together for the purpose of determining the availability of any
rights under this Agreement.
Section 12 Entire Agreement. This Agreement and the schedules, exhibits and annexes attached thereto set forth all of the promises, agreements, conditions, understandings and covenants
between and among the parties hereto with respect to the subject matter referred to herein. Any and all prior agreements with respect to such subject matter are hereby revoked. This Agreement and the schedules, exhibits and annexes attached thereto
are, and are intended to be, an integration of any and all prior agreements or understandings, oral or written, with respect to such subject matter.
Section 13 Governing Law; Venue; Service of Process. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Ohio, without reference to any
principles of conflicts of law thereof. Each party to this Agreement, by its execution hereof, hereby (a) irrevocably submits to the exclusive jurisdiction of the state courts of the State of Ohio or the United States District Court located in the
Southern District of the State of Ohio for the purpose of any litigation or proceeding between and among the parties hereto arising in whole or in part under or in connection with this Agreement, (b) waives to the extent not prohibited by applicable
law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such litigation or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from
attachment or execution, that any such litigation or proceeding brought in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred or removed to any court other than one of the above-named courts,
or should be stayed by reason of the pendency of some other proceeding in any other court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by such court and (c) agrees not to
commence any such litigation or any other type of proceeding or action other than before one of the above-named courts. Notwithstanding the previous sentence, a party may commence any litigation or proceeding in a court other than the above-named
courts solely for the purpose of enforcing an order, judgment or writ issued by one of the above-named courts. Each party hereto further waives any claim and will not assert that venue should properly lie in any other location within the selected
jurisdiction. Each party hereto hereby (i) agrees that service of process made by registered or certified mail, return receipt requested, at its address specified pursuant to Section 15 hereof, will constitute good and valid service of process in any
such litigation or proceeding and (ii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such litigation or proceeding any claim that service of process made in accordance with clause (i) above does not constitute
good and valid service of process.
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Section 14 Successors and Assignees; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives,
successors, permitted transferees and permitted assignees and this Agreement shall not inure to the benefit of or be enforceable by any other Person. Such successor or assign shall not be entitled to such rights unless the successor or assign, unless
already a Shareholder hereunder, shall have executed and delivered to the Company a joinder providing that such Person shall be bound by and shall fully comply with the terms of this Agreement (which shall also be executed by the Company) promptly
following the acquisition of such Registrable Securities, in which event such successor or assign shall be deemed a Shareholder for purposes of this Agreement. Neither this Agreement nor any obligation hereunder may be assigned without the prior
written consent of the Company and the party proposing such assignment, including by operation of law. Notwithstanding the foregoing, nothing contained in this Section 14 shall have any effect on (a) any other provision of this Agreement that
contemplates or requires that any transferee or assignee of the parties hereto be required to be bound by any obligation hereunder and (b) any of the rights of a Shareholder of any of the Registrable Securities as such.
Section 15 Notices. All notices, requests, demands and other communications made under or by reason of the provisions of this Agreement shall be in writing and shall be given by hand
delivery, certified or registered mail, return receipt requested, facsimile, e-mail or internationally recognized courier to the recipient party at such address, facsimile number or e-mail address as shall be submitted to the Company in writing. Any
such notice, request, demand or other communication shall be deemed given: (a) at the time personally delivered to the recipient with receipt acknowledged in writing, if delivered by hand; (b) at the time received by the recipient, if sent by
certified or registered mail, return receipt requested; (c) upon issuance by the transmitting machine of a confirmation slip that the number of pages constituting the notice has been transmitted by facsimile without error and confirmed
telephonically, if sent by facsimile; (d) upon confirmation by return e-mail from the recipient of its receipt of the e-mail, if sent by email; and (e) at 5:00 p.m., local time, on the third Business Day after timely delivery to the courier, if sent
by courier specifying delivery on or before the third-Business Day after delivery to the courier and signature of recipient required. Notwithstanding the foregoing, if any such notice, request, demand or other communication shall be given under both
clause (c) and clause (d), such delivery shall be valid for all purposes of this Agreement notwithstanding that such receipt has not been confirmed telephonically in the case of clause (c) or has not been confirmed by return e-mail in the case of
clause (d).
Section 16 Modifications; No Implied Waiver. The provisions of this Agreement, including the provisions of this sentence, may not be terminated, amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given, without the prior written consent of Shareholders representing at least a majority of then outstanding Registrable Securities; provided, however, that without a Shareholder’s written consent no such termination, amendment,
modification, supplement, waiver or consent shall (a) adversely affect such Shareholder’s rights and protections hereunder in a discriminatory manner or (b) result in such Shareholder incurring a material financial obligation (or materially
increasing an existing material financial obligation) hereunder that it was not responsible for immediately prior to the effectiveness of such termination, amendment, modification, supplement, waiver or consent; provided, further, that in order to adversely amend the foregoing proviso or Section 2(a)
hereof, all Shareholders of the outstanding Registrable Securities at the time and the Board must consent in writing; provided that the Company shall be
permitted to grant immaterial waivers hereunder without the consent of any of the Shareholders. The failure of any party at any time to insist upon, or any delay by any party at any time to insist upon, strict performance of any condition, promise,
agreement or understanding set forth herein shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement or understanding at a future time.
17
Section 17 Severability. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
Section 18 Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any provision
of this Agreement.
Section 19 Counterparts. This Agreement may be executed in one or more counterparts, which may be by facsimile, each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
Section 20 Construction; Interpretation. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The
parties intend that each representation, warranty, covenant, obligation, agreement and condition contained herein will have independent significance. The phrases “the date of this Agreement,” “the date hereof” and terms of similar import, shall be
deemed to refer to the date set forth in the first paragraph of this Agreement. The words “hereof,” “herein,” “hereby” and other words of similar import refer to this Agreement as a whole unless otherwise indicated. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All references in this Agreement to “$” are to United States currency. All references in this Agreement to “Form S-3” shall include any successor form thereto. Whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the
same shall include the singular, where appropriate. A reference to the male gender shall be deemed to be a reference to the female gender and vice versa. Whenever the last day for the exercise of any right or the discharge of any duty under this
Agreement falls on other than a Business Day, the party having such right or duty shall have until the next Business Day to exercise such right or discharge such duty. Unless otherwise indicated, the word “day” shall be interpreted as a calendar day.
For purposes of this Agreement, the Company may deem and treat the registered holder of Registrable Securities as the Shareholder and absolute owner thereof, and the Company shall not be affected by any notice to the contrary.
18
Section 21 No Inconsistent Agreement. No Shareholder shall enter into, or remain a party to, any agreement with respect to, or that is implicated by, the Registrable Securities
beneficially owned or held of record by such Shareholder that is inconsistent with the rights granted to, or agreements between or among, the Shareholders and the Company in this Agreement or otherwise conflicts with the provisions hereof. The
Company has not entered into nor will it enter into, or remain a party to, any agreement with respect to, or that is implicated by, the Registrable Securities beneficially owned or held of record by the Shareholders that is inconsistent with the
rights granted to, or agreements between and among, the Company and the Shareholders in this Agreement or otherwise conflicts with the provisions hereof, except with the prior written consent of Shareholders representing at least a majority of then
outstanding Registrable Securities.
Section 22 No Joint Venture, Etc. The entering into of this Agreement and the performance by any party hereto of the matters contemplated hereby shall not be deemed to create a
partnership, limited liability company, joint venture, or principal/agency relationship between or among the parties hereto.
Section 23 Specific Performance. The parties hereto agree that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific
performance and injunctive relief, may be used to enforce the provisions of this Agreement.
Section 24 Securities Law Acknowledgment. Each Shareholder acknowledges and agrees that such Shareholder may receive material non-public information in connection with the matters
contemplated by this Agreement, and further that such Shareholder is aware that the United States securities laws impose restrictions on purchasing or selling debt or equity securities of the Company or any of its subsidiaries when in possession of
such information.
Section 25 Term. This Agreement shall terminate with respect to each Shareholder on the date on which, and at the time at which, such Shareholder ceases to own Registrable Securities; provided, that, such Shareholder’s rights and obligations pursuant to Section 8, as well as the Company’s obligations to pay expenses pursuant to Section 7, shall
survive with respect to any Registration Statement in which any Registrable Securities of the Shareholder were included.
Section 26 Effectiveness. This Agreement shall become effective upon completion of the IPO.
[Signature Pages Follow]
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Accepted and agreed as of the date first written above:
| SAFE AUTO INSURANCE GROUP, INC. | |
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By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer,
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President and Director
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Contact information for Person authorized to receive notices on behalf of the Company pursuant to Section 15 of the Agreement
(which shall not constitute notice):
4 ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
IN WITNESS WHEREOF, a duly authorized signatory of each of the Shareholders has executed this Agreement as of the date first
written above.
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Shareholders:
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▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE ELIE
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TRUST DATED DECEMBER 24, 2012
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▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE
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TRUST DATED DECEMBER 24, 2012
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▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE
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TRUST DATED DECEMBER 24, 2012
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IRREVOCABLE TRUST DATED
DECEMBER 24, 2012
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▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE
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SUBCHAPTER S TRUST
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▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE OF THE
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TRUST
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THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
AGREEMENT DATED JANUARY 5, 2009
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AGREEMENT DATED JANUARY 6, 2009
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THE ▇▇▇ ▇. ▇▇▇▇▇▇▇ 2011
IRREVOCABLE TRUST NO. 1
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Schedule 1
With respect to the rights granted pursuant to this Agreement, those rights shall only extend to the following persons and trusts:
“Deshe Family Shareholders” shall refer to:
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▇▇▇ ▇. ▇▇▇▇▇, trustee of the Elie ▇▇▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust dated December 24, 2012
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| 4. |
▇▇▇ ▇. ▇▇▇▇▇, trustee of the ▇▇▇▇▇ ▇▇▇▇▇ Deshe Irrevocable Trust dated December 24, 2012
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| 5. |
▇▇▇ ▇. ▇▇▇▇▇, trustee of the ▇▇▇▇ ▇▇▇▇▇▇ Deshe Irrevocable Trust dated December 24, 2012
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| 6. |
▇▇▇ ▇. ▇▇▇▇▇, trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust dated December 24, 2012
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| 7. |
▇▇▇ ▇▇▇▇▇, trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1987 Subchapter S Trust
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“Diamond Family Shareholders” shall refer to:
| 1. |
▇▇▇ ▇. ▇▇▇▇▇▇▇
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| 2. |
▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1998 Irrevocable Trust
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| 3. |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust Agreement dated January 5, 2009
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| 4. |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust Agreement dated January 6, 2009
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| 5. |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee of the ▇▇▇ ▇. ▇▇▇▇▇▇▇ 2011 Irrevocable Trust No. 1
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Schedule 1-1