Form of Registration Rights Agreement]
Exhibit 10.4
[Form of
Registration Rights Agreement]
by
and between
OPEN
ACQ LLC,
and
THE
OTHER PERSONS NAMED HEREIN
|
Dated
as of __________, 2008
|
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of _______________,
2008, by and between Open Acquisition Corp. (the “Company”), Open Acq, LLC (the
“Sponsor”), the persons listed in Schedule I hereto (the “Founding
Securityholders”) and any Permitted Transferee (as defined below) who hereafter
becomes a party to this Agreement as contemplated by Section 6.2 of this
Agreement (each such party who holds Registrable Securities (as defined below),
a “Holder” and, collectively, the “Holders”).
WHEREAS,
the Sponsor and the Founding Securityholders currently hold all of the issued
and outstanding securities of the Company, consisting of 3,593,750 units (the
“Founder Units”) each consisting of one share of common stock, par value $0.0001
per share, of the Company (“Common Stock”) and one warrant (“Warrant”) entitling
the holder thereof to purchase one share of Common Stock, or their equivalent in
shares of Common Stock and Warrants;
WHEREAS,
the Sponsor has agreed to purchase from the Company an aggregate of 3,500,000
additional warrants (the “Insider Warrants”) at a price of $1.00 per Insider
Warrant in a private placement that will occur on or prior to the date of the
Company’s final prospectus; and
WHEREAS,
the Sponsor, the Founding Securityholders and the Company desire to enter into
this Agreement to provide the Sponsor and the Founding Securityholders with
certain rights relating to the registration of (i) the Founder Units, the Common
Stock and Warrants comprising (or that formerly were part of) the Founder Units
and the Common Stock issuable upon exercise of such Warrants and (ii) the
Insider Warrants and the Common Stock issuable upon exercise of the Insider
Warrants;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The
following capitalized terms used herein have the following
meanings:
“Affiliate”
has the meaning set forth in Rule 405 promulgated under the Securities Act (in
effect on the date hereof).
“Agreement”
means this Agreement, as amended, restated, supplemented or otherwise modified
from time to time.
“Automatic
Shelf Registration Statement” means an “automatic shelf registration statement”
as defined in Rule 405 promulgated under the Securities Act (in effect on the
date hereof).
“Business
Combination” means the Company’s initial business combination, through a merger,
capital stock exchange, asset or stock acquisition or other similar business
combination with one or more domestic or international operating businesses or
assets meeting the conditions described in the Company’s Amended and Restated
Certificate of Incorporation.
“Commission”
means the U.S. Securities and Exchange Commission or any successor
entity.
“Demand
Registration” is defined in Section 2.1(a).
“Demanding
Holder” is defined in Section 2.1(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
“FINRA”
means the Financial Industry Regulatory Authority, Inc.
“Free
Writing Prospectus” means any “free writing prospectus” as defined in Rule 405
promulgated under the Securities Act (in effect on the date
hereof).
“Indemnified
Party” is defined in Section 4.3.
“Indemnifying
Party” is defined in Section 4.3.
“Individual
Holders” means (i) the Founding Securityholders, (ii) any other current or
future officers or directors of the Company who receive or acquire Registrable
Securities from the Sponsor after the date hereof, and (iii) any Permitted
Transferees (other than the Sponsor) of such persons described in (i) and (ii)
(but only to the extent that after the date hereof any such Permitted
Transferees acquire Registrable Securities from such persons).
“Maximum
Threshold” is defined in Section 2.1(d).
“Permitted
Transferees” means (i) the Company, any of the Company’s officers, directors and
employees, or any Family Members of such individuals (ii) in the case of
individuals, by gift to a member of the individual’s immediate family or to a
trust, the beneficiary of which is a member of the individual’s immediate
family, (iii) any individual pursuant to a qualified domestic relations order,
(iv) if the transferor is a limited liability company, any stockholder, partner
or member of the transferor and (v) any individual or entity by virtue of laws
or agreements governing descent or distribution upon the death or dissolution of
the transferor; provided, that, any such transferees agree in writing to become
a party to this Agreement. For purposes of this definition, “Family Member” of a
person means such person’s present spouse and/or domestic partner, parents,
lineal ascendants or descendants or any siblings of any of the foregoing, any
descendants of any sibling of such person, any estate planning vehicle formed
primarily for the benefit of such person or any of the foregoing persons or any
corporation, partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture or other entity of any kind (including
any successor of such entity) owned by any of the foregoing.
“Piggy-Back
Registration” is defined in Section 2.2(a).
“Pro
Rata” is defined in Section 2.1(d).
“Registrable
Securities” means (i) the Founder Units, the Common Stock and Warrants
comprising (or that were formerly part of) the Founder Units and the Common
Stock issuable upon exercise of such Warrants and (ii) the Insider Warrants and
the Common Stock issuable upon exercise of the Insider Warrants. Registrable
Securities include any shares of capital stock, warrants or other securities of
the Company issued as a dividend or other distribution with respect to or in
exchange for or in replacement of Registrable Securities. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when: (a) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding; or (d)
the entire amount of the Registrable Securities held by any Holder may be sold
in a single sale, in the opinion of counsel reasonably satisfactory to the
Company, without any limitation as to volume or manner of sale pursuant to Rule
144 (or any successor rule or regulation) under the Securities Act.
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act for a public offering and sale
of Registrable Securities (other than a registration statement on Form S-4 or
S-8 (or any successor or substantially similar form), or in connection with (i)
an employee stock option, stock purchase or compensation plan or securities
issued or issuable pursuant to any such plan or (ii) a dividend reinvestment
plan).
“Release
Date” means (i) with respect to the Insider Warrants and the Common Stock
issuable upon exercise of the Insider Warrants, the day following the
consummation of a Business Combination and (ii) with respect to all other
Registrable Securities, the 180th day following the consummation of a Business
Combination.
“S-3
Initiating Holders” means either (i) the Holders of a majority-in-interest, on
an as-converted to Common Stock basis, of the Registrable Securities or (ii) the
Holders of a majority-in-interest, on an as-converted to Common Stock basis, of
the Registrable Securities held by the Individual Holders.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“Underwriter”
means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making
activities.
“Warrant
Agreement” means the warrant agreement, dated ________, 2008, between the
Company and Continental Stock Transfer & Trust Company, as warrant
agent.
ARTICLE II
REGISTRATION
RIGHTS
2.1. Demand Registration.
(a) Request for
Registration. At any time on or after the date that is three
months prior to the applicable Release Date with respect to the Registrable
Securities, the Holders of a majority-in-interest, on an as-converted to Common
Stock basis, of such Registrable Securities may make a written demand for
registration under the Securities Act of all or part of their Registrable
Securities (such demand, a “Demand Registration”); provided that any
Registration Statement filed with the Commission with respect to a Demand
Registration shall not be declared effective before the applicable Release Date.
Any Demand Registration shall specify the class and number of shares of
Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will promptly notify all Holders of
the demand, and each who wishes to include all or a portion of such Holder’s
Registrable Securities in the Demand Registration (each such Holder including
shares of Registrable Securities in such registration, a “Demanding Holder”)
shall so notify the Company in writing within 10 days after the receipt by the
Holder of the notice from the Company. Upon receipt by the Company of
any such notice, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to Sections
2.1(d) and 2.1(f). The Company shall not be obligated to effect more
than two Demand Registrations in respect of all Registrable
Securities.
(b) Effective
Registration. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its material obligations under this Agreement with
respect thereto; provided, however, that if, after such Registration Statement
has been declared effective, the offering of Registrable Securities pursuant to
a Demand Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement
with respect to such Demand Registration will be deemed not to have been
declared effective, unless and until (i) such stop order or injunction is
removed, rescinded or otherwise terminated and (ii) a majority-in-interest, on
an as-converted to Common Stock basis, of the Demanding Holders thereafter elect
to continue the offering; provided, further, that the Company shall not be
obligated to file a second Registration Statement until a Registration Statement
that has been filed is counted as a Demand Registration or is
terminated.
(c) Underwritten
Offering. If a majority-in-interest, on an as-converted to
Common Stock basis, of the Demanding Holders so elects and such Demanding
Holders so advise the Company as part of their Demand Registration, the offering
of such Registrable Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering with one or more investment banking firms
of national reputation to act as the managing Underwriter or Underwriters of the
offering. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided
herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest, on an as-converted to Common Stock
basis, of the Demanding Holders, which Underwriter or Underwriters shall be
reasonably acceptable to the Company.
(d) Reduction of
Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises or advise the
Company and the Demanding Holders in writing that the dollar amount or number of
Registrable Securities that the Demanding Holders desire to sell, taken together
with all other shares of Common Stock or other securities that the Company
desires to sell and the shares of Common Stock, if any, as to which registration
has been requested pursuant to written contractual piggy-back registration
rights held by other stockholders of the Company who desire to sell, exceeds the
maximum dollar amount or maximum number of securities that the Underwriter or
Underwriters believes or believe can be sold in such offering without adversely
affecting the proposed offering price, the timing, the distribution method or
the probability of success of such offering (such maximum dollar amount or
maximum number of securities, as applicable, the “Maximum Threshold”), then the
Company shall include in such registration: (i) first, the Registrable
Securities as to which Demand Registration has been requested by the Demanding
Holders (pro rata in accordance with the number of shares (including Founder
Warrants and Insider Warrants, on an as-converted to Common Stock basis) that
each such person has requested be included in such registration, regardless of
the number of shares held by each such person (such proportion is referred to
herein as “Pro Rata”)) that can be sold without exceeding the Maximum Threshold;
(ii) second, to the extent that the Maximum Threshold has not been reached under
the foregoing clause (i), the shares of Common Stock or other securities that
the Company desires to sell that can be sold without exceeding the Maximum
Threshold; and (iii) third, to the extent that the Maximum Threshold has not
been reached under the foregoing clauses (i) and (ii) collectively, the shares
of Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual arrangements
with such persons and that can be sold without exceeding the Maximum
Threshold.
(e) Withdrawal. If
a majority-in-interest, on an as-converted to Common Stock basis, of the
Demanding Holders disapproves of the terms of any underwriting or is not
entitled to include all of its Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or
Underwriters of its request to withdraw prior to the effectiveness of the
Registration Statement filed with the Commission with respect to such Demand
Registration. If the majority-in-interest, on an as-converted to Common Stock
basis, of the Demanding Holders withdraws from a proposed offering relating to a
Demand Registration, then the Company shall withdraw the Registration Statement
related to such offering with regards to all such Demanding Holders and such
registration shall not count as a Demand Registration provided for in Section
2.1(a). Notwithstanding any such withdrawal, the Company shall pay
all expenses incurred by the Demanding Holders in connection with such Demand
Registration as provided in Section 3.3.
(f) Permitted
Delays. The Company shall be entitled to postpone the filing
of any Registration Statement under this Section 2.1 if (i) at any time prior to
the filing of such Registration Statement the Board of Directors of the Company
determines, in its good faith business judgment, that such registration and
offering would materially and adversely affect any financing, acquisition,
corporate reorganization or other material transaction involving the Company and
(ii) the Company delivers the Demanding Holders written notice thereof within 10
business days of the date of receipt of such Demand Registration; provided that
all such periods of postponement may not exceed 45 days during any 365-day
period.
(g) Cancellation of
Registration. A majority-in-interest, on an as converted to
Common Stock basis, of the Demanding Holders shall have the right to cancel a
proposed registration of Registrable Securities pursuant to Section 2.1 when (i)
in their discretion, market conditions are so unfavorable as to be seriously
detrimental to an offering pursuant to such registration or (ii) the request for
cancellation is based upon material adverse information relating to the Company
that was unknown to the Demanding Holders at the time of their Demand
Registration. Such cancellation of a registration shall not be counted as one of
the two Demand Registrations provided for in Section 2.1(a) and, notwithstanding
anything to the contrary in this Agreement, the Company shall be responsible for
the expenses of the Demanding Holders incurred in connection with the
registration prior to the time of such cancellation.
(h) Suspension of
Registration. If the filing, initial effectiveness or
continued use of a Registration Statement in respect of a Demand Registration at
any time would require the Company to make an Adverse Disclosure or would
require the inclusion in such Registration Statement of financial statements
that are unavailable to the Company for reasons beyond the Company’s control,
the Company may, upon giving prompt written notice of such action to the
Holders, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement for the shortest possible period of time determined in
good faith by the Company to be necessary for such purpose. In the event the
Company exercises its rights under the preceding sentence, the Holders agree to
suspend, immediately upon their receipt of notice referred to above, their use
of the prospectus relating to the Demand Registration in connection with any
sale or offer to sell Registrable Securities. The Company shall
immediately notify the Holders of the expiration of any period during which it
exercised rights under this Section 2.1(h). For the purpose of this
Section 2.1(h), “Adverse Disclosure” means public disclosure of material
non-public information, which, in the good faith judgment of the Chairman of the
Board of Directors, the principal executive officer or the principal financial
officer of the Company, after consultation with counsel to the Company, (i)
would be required to be made in any Registration Statement or prospectus in
order for the applicable Registration Statement or prospectus not to contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein in light of the circumstances under
which they were made not misleading, (ii) would not be required to be made at
such time if the Registration Statement were not being filed and (iii) the
Company has a bona fide business purpose for not publicly making.
2.2. Piggy-Back Registration.
(a) Piggy-Back
Rights. If at any time on or after the applicable Release
Date, the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities, or securities or other
obligations exercisable or exchangeable for, or convertible into, equity
securities, by the Company for its own account or for stockholders of the
Company for their account other than pursuant to Section 2.1, then the Company
shall (i) give written notice of such proposed filing to the Holders as soon as
practicable but in no event less than 10 business days before the intended
filing date, which notice shall disclose the amount and type of securities to be
included in such Registration Statement, the intended method(s) of distribution
and the name of the proposed managing Underwriter or Underwriters, if any and
(ii) offer to the Holders in such notice the opportunity to register the sale of
such number or amount of Registrable Securities as such Holders may request in
writing within 10 days following receipt of such notice (a “Piggy-Back
Registration”).
The Company shall cause such Registrable Securities to be included in such
registration and shall use its commercially reasonable efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof.
All Holders proposing to distribute their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into an
underwriting agreement in customary form with the Underwriter or Underwriters
selected for such Piggy-Back Registration.
(b) Reduction of
Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises or advise
the Company and the Holders in writing that the dollar amount or number of
securities which the Company desires to sell, taken together with the shares of
Common Stock or other securities, if any, as to which registration has been
demanded pursuant to written contractual arrangements with persons other than
the Holders hereunder, the Registrable Securities as to which registration has
been requested under this Section 2.2, and the securities, if any, as to which
registration has been requested pursuant to the written contractual piggy-back
registration rights of other stockholders of the Company, exceeds the Maximum
Threshold, then the Company shall include in any such registration:
(i) If
the registration is undertaken for the Company’s account: (A) first, the shares
of Common Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Threshold; (B) second, to the extent that the
Maximum Threshold has not been reached under the foregoing clause (A), the
shares of Common Stock or other securities, if any, comprised of Registrable
Securities as to which Piggy-Back Registration has been requested pursuant to
Section 2.2(a), Pro Rata, that can be sold without exceeding the Maximum
Threshold; and (C) third, to the extent that the Maximum Threshold has not been
reached under the foregoing clauses (A) and (B) collectively, the shares of
Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual piggy-back
registration rights with such persons and that can be sold without exceeding the
Maximum Threshold; and
(ii) If
the registration is a “demand” registration undertaken at the demand of persons
other than the Holders, (A) first, the shares of Common Stock or other
securities for the account of the demanding persons that can be sold without
exceeding the Maximum Threshold; (B) second, to the extent that the Maximum
Threshold has not been reached under the foregoing clause (A), the shares of
Common Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Threshold; (C) third, to the extent that the
Maximum Threshold has not been reached under the foregoing clauses (A) and (B)
collectively, the shares of Common Stock or other securities comprised of
Registrable Securities, Pro Rata, as to which Piggy-Back Registration has been
requested pursuant to Section 2.2(a), that can be sold without exceeding the
Maximum Threshold; and (D) fourth, to the extent that the Maximum Threshold has
not been reached under the foregoing clauses (A), (B) and (C) collectively, the
shares of Common Stock or other securities for the account of other persons that
the Company is obligated to register pursuant to written contractual
arrangements with such persons, that can be sold without exceeding the Maximum
Threshold.
(c) Withdrawal. Any
Holder may elect to withdraw such Holder’s request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own determination
or as the result of a withdrawal by persons making a demand pursuant to written
contractual obligations) may withdraw a Registration Statement filed pursuant to
this Section 2.2 at any time prior to the effectiveness of the Registration
Statement. Notwithstanding any such withdrawal, the Company shall pay
all expenses incurred by the Holders in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.3. Form S-3 Registrations.
(a) Requests for a Form S-3
Registration. Upon the later of (i) the Company becoming
eligible for use of Form S-3 or any successor form thereto under the Securities
Act in connection with a secondary public offering of its securities and (ii)
the time at which the Holders may request a Demand Registration under Section
2.1(a), in the event that the Company shall receive from the S-3 Initiating
Holders a written request that the Company register under the Securities Act on
Form S-3 or any successor form then in effect (an “S-3 Registration”) the sale
of all or a portion of the Registrable Securities owned by such S-3 Initiating
Holders (which S-3 Registration may be a shelf registration pursuant to Rule 415
promulgated under the Securities Act (or any successor rule or regulation)), the
Company shall give written notice of such request to all of the other Holders as
promptly as practicable but in no event later than 10 days before the
anticipated filing date of such Form S-3, which notice shall describe the
proposed registration, the intended method of distribution of such Registrable
Securities and any other information that at the time would be appropriate to
include in such notice, and offer such other Holders the opportunity to register
the number of Registrable Securities as each such Holder may request in writing
to the Company, given within 10 days of the date on which the Company sent the
written notice of such registration. Each request for an S-3 Registration by the
S-3 Initiating Holders shall state the amount of the Registrable Securities
proposed to be sold and the intended method of disposition
thereof. With respect to each S-3 Registration, the Company shall,
subject to Section 2.3(c), (i) include in such offering the Registrable
Securities of the S-3 Initiating Holders and the other Holders who have
requested in writing to participate in such registration on the same terms and
conditions as the Registrable Securities of the S-3 Initiating Holders included
therein (collectively, the “S-3 Participating Holders”) and (ii) use its
commercially reasonable efforts to cause such registration pursuant to this
Section 2.3(a) to become and remain effective as soon as practicable but in no
event earlier than 90 days after the effective date of any other Registration
Statement of the Company that had been filed with the Commission but not yet
declared effective at the time such registration was requested. Notwithstanding
the foregoing, immediately upon determination of the price at which such
Registrable Securities are to be sold in a S-3 Registration that is a firm
commitment underwritten offering, if such price is below the price which any S-3
Participating Holder finds acceptable, such S-3 Participating Holder shall then
have the right, by written notice to the Company, to withdraw its Registrable
Securities from being included in such offering; provided, that such a
withdrawal by any one of the S-3 Initiating Holders shall constitute and effect
an automatic withdrawal by all other S-3 Participating Holders. If the S-3
Initiating Holders request, the Company shall cause such S-3 Registration to be
made pursuant to an Automatic Shelf Registration Statement (provided such
Automatic Shelf Registration Statement is available for use by the Company) and
may omit the names of the S-3 Participating Holders and the amount of the
Registrable Securities to be offered thereunder. The Company shall
not be obligated to effect more than one S-3 Registration requested by the S-3
Initiating Holders described in clause (ii) of the definition
thereof.
(b) Form S-3 Underwriting
Procedures. If a majority-in-interest, on an as-converted to
Common Stock basis, of the S-3 Initiating Holders so elect, the Company shall
use its commercially reasonable efforts to cause such S-3 Registration pursuant
to this Section 2.3 to be in the form of a firm commitment underwritten offering
with one or more investment banking firms of national reputation to act as the
managing Underwriter or Underwriters. In connection with any S-3
Registration under Section 2.3(a) involving an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, the managing
Underwriter or Underwriters and a majority-in-interest, on an as-converted to
Common Stock basis, of the S-3 Initiating Holders, and then only in such
quantity as set forth below.
(c) Reduction of
Offering. If the managing Underwriter or Underwriters advises
or advise the Company that the registration of all or part of the Registrable
Securities which the S-3 Initiating Holders and the other Holders have requested
to be included would materially adversely affect the distribution or sales price
of the Registrable Securities in such public offering, then the Company shall
include in such underwritten offering, to the extent of the amount that the
managing Underwriter or Underwriters believes or believe may be sold without
causing such material adverse effect, (i) first, such number of Registrable
Securities of the Holders participating in the offering under Section 2.1(a),
which Registrable Securities shall be allocated Pro Rata, (ii) second, any other
securities of the Company requested by holders thereof to be included in such
registration, pro rata among such other holders on the basis of the number of
securities that each such holder requested to be included in such registration
and (iii) third, securities offered by the Company for its own
account.
(d) Expenses. Except
as provided in Section 3.3, the Company shall bear all registration expenses in
connection with any S-3 Registration pursuant to this Section 2.3, whether or
not such S-3 Registration becomes effective.
2.4. Automatic Shelf Registration
Statement. If a Form S-3 is an Automatic Shelf
Registration Statement and such Automatic Shelf Registration Statement becomes
effective without naming the selling security holders or disclosing the amount
of securities offered, upon written request by the Holders participating in the
offering, the Company shall, as promptly as practicable after receiving such
request, (i) file with the Commission a prospectus supplement naming the selling
security holders and the amount of Registrable Securities to be offered and
include, to the extent not included or incorporated by reference in the
Registration Statement, any other information omitted from the prospectus used
in connection with such Registration Statement as permitted by Rule 430B
promulgated under the Securities Act (including the plan of distribution) and
(ii) pay any necessary filing fees to the Commission within the time period
required.
2.5. Permitted Delays. The Company shall
be entitled to postpone the filing of any Registration Statement under Section
2.3 if (i) at any time prior to the filing of such Registration Statement the
Board of Directors of the Company determines, in its good faith business
judgment, that such registration and offering would materially and adversely
affect any financing, acquisition, corporate reorganization or other material
transaction involving the Company, and (ii) the Company delivers the Holders
requesting such registration written notice thereof within 10 business days of
the date of receipt of such request; provided, that all such periods of
postponement may not exceed 45 days during any 365-day period.
ARTICLE III
REGISTRATION;
PROCEDURES.
3.1. Filings; Information. Whenever the
Company is required to effect the registration of any Registrable Securities
pursuant to Article II, the Company shall use its reasonable best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method(s) of distribution thereof as promptly as reasonably
practicable, and in connection with any such request:
(a) Filing Registration
Statement. Subject to Sections 2.1(f) and 2.5, the Company
shall, as promptly as reasonably practicable, and in any event within 75 days
after receipt of a Demand Registration pursuant to Section 2.1 or a request for
an S-3 Registration pursuant to Section 2.3, prepare and file with the
Commission a Registration Statement on any applicable form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of all Registrable Securities to be
registered thereunder in accordance with the intended method(s) of distribution
thereof, and shall use its commercially reasonable efforts to cause such
Registration Statement to become and remain effective for the period required by
Section 3.1(b). Before filing with the Commission a Registration Statement or
prospectus or any amendment or supplement thereto, including documents
incorporated by reference, or before using any Free Writing Prospectus, the
Company shall furnish to the Holders included in such Registration Statement and
to one firm of legal counsel selected by a majority-in-interest, on an
as-converted to Common Stock basis, of the Demanding Holders, copies of all such
documents proposed to be filed sufficiently in advance of filing to provide such
Holders and legal counsel with a reasonable opportunity to review such documents
and comment thereon, and the Company shall not file any Registration Statement
or prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such Holders or their legal counsel shall
reasonably object.
(b) Amendments and
Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective and in
compliance with the provisions of the Securities Act until all Registrable
Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth
in such Registration Statement (which period shall not exceed the sum of 180
days (or, in the case of an S-3 Registration Statement, three years from the
effective date of the Registration Statement if such Registration Statement is
filed pursuant to Rule 415 promulgated under the Securities Act (or any
successor rule or regulation) plus any period during which any such disposition
is interfered with by any stop order or injunction of the Commission or any
governmental agency or court).
(c) Copies. The
Company shall, upon request, furnish without charge to the Holders included in
such Registration Statement, and the Holders’ legal counsel, copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such Registration Statement (including each
preliminary prospectus), any prospectus filed under Rule 424 under the
Securities Act and any Free Writing Prospectus as each such Holder or their
legal counsel may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Holders.
(d) State Securities Laws
Compliance. The Company shall, as promptly as practicable, (i)
register or qualify the Registrable Securities covered by the Registration
Statement under such securities or “blue sky” laws of such jurisdictions in the
United States as the Holders included in such Registration Statement (in light
of their intended plan of distribution) may request and (ii) take such action
necessary to cause such Registrable Securities covered by the Registration
Statement to be registered with or approved by such other governmental
authorities as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be necessary or
advisable to enable the Holders included in such Registration Statement to
consummate the disposition of such Registrable Securities in such jurisdictions;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph, subject itself to taxation in any such
jurisdiction or consent to general service of process in any such
jurisdiction.
(e) Notification. After
the filing of a Registration Statement, the Company shall promptly, and in no
event more than two business days after such filing, notify the Holders included
in such Registration Statement of such filing, and shall further notify such
Holders in writing within two business days of the occurrence of any of the
following: (i) when a prospectus, any prospectus supplement, any Free Writing
Prospectus, or a post-effective amendment to the Registration Statement has been
filed with the Commission, and with respect to the Registration Statement or any
post-effective amendment, when the same becomes effective; (ii) the issuance or
threatened issuance by the Commission of any stop order (and the Company shall
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered); (iii) any request by the Commission for any amendment
or supplement to such Registration Statement, any prospectus relating thereto or
Free Writing Prospectus or for additional information; or (iv) the existence of
any fact or happening of any event of which the Company has knowledge which
makes any statement of a material fact in such Registration Statement, related
prospectus or Free Writing Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue or which would require the making of
any changes in such Registration Statement, prospectus or Free Writing
Prospectus in order that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of such prospectus or Free Writing
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which
they were made, not misleading. The Company shall, as promptly as practicable
upon the occurrence of any event contemplated by the foregoing clause (iv),
prepare a supplement or amendment to such Registration Statement, related
prospectus or Free Writing Prospectus and furnish to each Holder participating
in the offering to which such Registration Statement relates a reasonable number
of copies of such supplement to, or amendment of, such Registration Statement,
prospectus or Free Writing Prospectus as may be necessary so that, after
delivery to the purchasers of such Registrable Securities, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
such prospectus or Free Writing Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations,
warranties and covenants of the Company in any underwriting agreement that are
made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the Holders included in such Registration
Statement. No Holder included in such Registration Statement shall be
required to make any representations or warranties in the underwriting agreement
except, if applicable, with respect to such Holder’s organization, good
standing, authority, title to Registrable Securities, lack of conflict of such
sale with such Holder’s material agreements and organizational documents, and
with respect to written information relating to such Holder that such Holder has
furnished in writing expressly for inclusion in such Registration Statement.
Holders shall agree to such covenants and indemnification and contribution
obligations from selling stockholders as are customarily contained in
underwriting agreements. Further, such Holders shall cooperate fully
in the preparation of the Registration Statement and other documents relating to
any offering in which they include securities pursuant to Article II hereof;
provided, however, that such cooperation shall be limited to furnishing to the
Company such information regarding itself, the Registrable Securities held by
such Holder and the intended method of distribution of such securities as shall
be reasonably required to effect the registration of the Registrable
Securities.
(g) Cooperation. The
principal executive officer of the Company, the principal financial officer of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
(h) Records. The
Company shall make available for inspection by the Holders included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or other
professional retained by the Holders included in such Registration Statement or
any Underwriter (each an “Inspector” and, collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the “Records”), as shall be necessary to enable them to
exercise their due diligence responsibility, and cause the Company’s officers,
directors and employees to supply all information reasonably requested by any of
them in connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors of being confidential shall not be disclosed by the Inspectors (and
the Inspectors shall confirm their agreement in writing in advance to the
Company if the Company shall so request) unless (x) the disclosure of such
Records is necessary, in the Company’s judgment, to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction after exhaustion of all appeals therefrom or (z) the
information in such Records was known to the Inspectors on a non-confidential
basis prior to its disclosure by the Company or has been made generally
available to the public. Each Holder participating in an offering agrees that it
shall, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, promptly give notice to the Company and allow the
Company, at the Company’s expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential. In the event that the
Company is unsuccessful in preventing the disclosure of such Records, such
Holder agrees that it shall furnish only such portion of those Records which it
is advised by counsel is legally required and shall, at the Company’s expense,
exercise all reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded to those Records.
(i) Opinions and Comfort
Letters. If a Registration Statement in respect of Registrable
Securities includes an underwritten public offering, the Company shall furnish
or cause to be furnished to the participating Holders and the managing
Underwriter or Underwriters such documents and certificates from the Company’s
independent public accountants and legal counsel, including an opinion of
counsel and customary comfort letters, as may be reasonably required pursuant to
the underwriting agreement related thereto. In the event no legal
opinion is to be delivered pursuant to the Underwriting Agreement, the Company
shall furnish to each Holder included in such Registration Statement, at any
time that such Holder elects to use a prospectus, an opinion of counsel to the
Company (based solely on the oral advice of the Commission) to the effect that
the Registration Statement containing such prospectus has been declared
effective and that no stop order is in effect.
(j) Earnings
Statement. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and make available to
its stockholders, as soon as practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(k) Listing. The
Company shall cause all Registrable Securities included in any registration to
be listed on such exchanges or otherwise designated for trading in the same
manner as similar securities issued by the Company are then listed or designated
or, if no such similar securities are then listed or designated, in a manner
reasonably satisfactory to the holders of the majority-in-interest, on an
as-converted to Common Stock basis, of the Registrable Securities included in
such Registration, provided, in each case, that the applicable listing
requirements are satisfied.
(l) FINRA. The
Company shall cooperate with each Holder participating in the offering and each
Underwriter, if any, and their respective legal counsel in connection with any
filings required to be made with FINRA.
(m) Other
Actions. The Company shall (i) take all other steps reasonably
necessary to effect the registration of the Registrable Securities contemplated
hereby and reasonably cooperate with the Holders of such Registrable Securities
to facilitate the disposition of such Registrable Securities pursuant thereto;
(ii) make all required filings of all prospectuses and Free Writing Prospectuses
with the Commission within the deadlines specified by the Securities Act; and
(iii) make all required filing fee payments in respect of any Registration
Statement or prospectus used under this Agreement (and any offering covered
thereby) within the deadlines specified by the Securities Act.
3.2. Obligation to Suspend
Distribution. Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Sections 3.1(e)(ii), (iii) or (iv) such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended Prospectus or Free Writing Prospectus
contemplated by Section 3.1(e)(i) (or if no supplemental or amended prospectus
or Free Writing Prospectus is required, upon confirmation from the Company that
use of the prospectus or Free Writing Prospectus is once again permitted) and,
if so directed by the Company, such Holder shall deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the prospectus or Free Writing Prospectus covering such
Registrable Securities which is current at the time of receipt of such notice.
If the Company shall give any such notice, the Company shall extend the period
during which such Registration Statement shall be maintained effective pursuant
to this Agreement (including, without limitation, the period referred to in
Section 3.1(b) by the number of days during the period from and including the
date of the giving of such notice pursuant to Sections 3.1(e)(ii), (iii) or (iv)
to and including the date when the Holders of such Registrable Securities
participating in the offering under such Registration Statement shall have
received the copies of the supplemented or amended prospectus or Free Writing
Prospectus contemplated by and meeting the requirements of Section 3.1(e) (or if
no supplemental or amended prospectus or Free Writing Prospectus is required,
upon confirmation from the Company that use of the prospectus or Free Writing
Prospectus is once again permitted).
3.3. Registration
Expenses. The Company shall bear all costs and expenses
incurred in connection with any registration of Registrable Securities under
this Agreement, and all expenses incurred in performing or complying with its
other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees; (ii) fees and expenses of compliance with securities or “blue
sky” laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities); (iii) printing expenses; (iv)
the Company’s internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities as required by Section
3.1(k); (vi) FINRA fees; (vii) the fees and disbursements of counsel for the
Company and counsel for the Underwriter or Underwriters and fees and expenses
for independent certified public accountants retained by the
Company
(including the expenses or costs associated with the delivery of any opinions or
comfort letters requested pursuant to Section 3.1(i)); (viii) the fees and
expenses of any special experts retained by the Company in connection with such
registration; and (ix) the fees and expenses of one legal counsel selected by
the Holders of a majority-in-interest, on an as-converted to Common Stock basis,
of the Registrable Securities included in such registration. The Company shall
have no obligation to pay any underwriting discounts or selling commissions
attributable to the Registrable Securities being sold by the Holders thereof,
which underwriting discounts or selling commissions shall be borne by such
Holders. Additionally, in an underwritten offering, all selling
stockholders and the Company shall bear the expenses of the Underwriter, if any,
in proportion to the respective amount of shares each is selling in such
offering.
3.4. Information. The Holders shall provide
such information as may reasonably be requested by the Company or the managing
Underwriter, if any, in connection with the preparation of any Registration
Statement, including amendments and supplements thereto, in order to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Article II and in connection with the Company’s obligation to comply with
federal and applicable state securities laws.
ARTICLE IV
INDEMNIFICATION
AND CONTRIBUTION
4.1. Indemnification by the Company. The
Company agrees to indemnify and hold harmless the Sponsor and each other Holder
participating in an offering pursuant to Sections 2.1, 2.2 or 2.3 hereunder, and
each of their respective officers, employees, Affiliates, directors, partners,
members, attorneys and agents, and each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Sponsor and each other Holder participating in such offering from and
against any expenses, losses, judgments, claims, damages or liabilities, or any
action or proceeding in respect thereof (including reasonable costs of
investigation and reasonable attorneys’ fees and expenses), whether joint or
several, arising out of or based upon any untrue statement (or allegedly untrue
statement) of a material fact contained in any Registration Statement under
which the sale of such Holder’s Registrable Securities was registered under the
Securities Act (including each preliminary prospectus), any prospectus filed
under Rule 424 under the Securities Act, any Free Writing Prospectus or any
other information that is deemed under Rule 159 promulgated under the Securities
Act to have been conveyed to purchasers of securities at the time of sale of
such securities (including, without limitation, a contract of sale), or any
amendment or supplement thereto, or arising out of or based upon any omission
(or alleged omission) to state a material fact required to be stated therein or
necessary to make the statements therein not misleading under the circumstances
such statements were made; and the Company shall promptly reimburse any such
indemnified party for any legal and any other expenses reasonably incurred by
such indemnified party in connection with
investigating
and defending any such expense, loss, judgment, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such expense, loss, claim, damage or liability arises out
of or is based upon any untrue statement or allegedly untrue statement or
omission or alleged omission made in such Registration Statement (including each
preliminary prospectus), any prospectus filed under Rule 424 under the
Securities Act, any Free Writing Prospectus or any other information that is
deemed under Rule 159 promulgated under the Securities Act to have been conveyed
to purchasers of securities at the time of sale of such securities (including,
without limitation, a contract of sale), or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by a Holder participating in the offering expressly for use therein.
The Company also shall indemnify any Underwriter of the Registrable Securities,
their officers, Affiliates, directors, partners, members and agents and each
person who controls such Underwriter on substantially the same basis as that of
the indemnification provided above in this Section 4.1.
4.2. Indemnification by
Holders. Each Holder will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such Holder, indemnify and hold
harmless the Company, each of its directors and officers and each Underwriter
(if any), and each other Holder participating in the offering and each other
person, if any, who controls another participating Holder or such Underwriter
within the meaning of the Securities Act, against any expenses, losses,
judgments, claims, damages or liabilities, or any action or proceeding in
respect thereof (including reasonable costs of investigation and reasonable
attorneys’ fees and expenses), whether joint or several, insofar as such
expenses, losses, judgments, claims, damages or liabilities, or any action or
proceeding in respect thereof, arise out of or are based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in the
Registration Statement under which the sale of such Registrable Securities was
registered under the Securities Act, any preliminary prospectus, any prospectus
filed under Rule 424 under the Securities Act, any Free Writing Prospectus or
any other information that is deemed under Rule 159 promulgated under the
Securities Act to have been conveyed to purchasers of securities at the time of
sale of such securities (including, without limitation, a contract of sale), or
any amendment or supplement thereto, or arise out of or are based upon any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading under the
circumstances such statements were made, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such Holder participating in the offering expressly for use therein,
and shall reimburse the Company, its directors and officers, and each other
Holder participating in the offering or controlling person for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending any such expense, loss, judgment, claim, damage,
liability or action. Each Holder’s indemnification obligations hereunder shall
be several and not joint and shall be limited to the amount of any net proceeds
actually received by such Holder in the offering.
4.3. Conduct of Indemnification
Proceedings. Promptly after receipt by any person of any
notice of any loss, claim, damage or liability or any action in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the
“Indemnified Party”) shall, if a claim in respect thereof is to be made against
any other person for indemnification hereunder, notify such other person (the
“Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability
or action; provided, however, that the failure by the Indemnified Party to
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which the Indemnifying Party may have to such Indemnified Party
hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking indemnification
with respect to any claim or action brought against the Indemnified Party, then
the Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other
Indemnifying
Parties, to assume control of the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel in addition to local
counsel) to represent the Indemnified Party and its controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Indemnified Party against the Indemnifying Party, with the
reasonable fees and expenses of such counsel to be paid by such Indemnifying
Party if, based upon the written opinion of counsel of such Indemnified Party,
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, consent to
entry of judgment or effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
4.4. Contribution.
(a) Equitable
Considerations. If the indemnification provided for in the
foregoing Sections 4.1 and 4.2 is unavailable to any Indemnified Party in
respect of any loss, claim, damage, liability or action referred to herein, then
each such Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(b) Other
Payments. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
Section 4.4(a). The amount paid or payable by an Indemnified Party as
a result of any loss, claim, damage, liability or action referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4.4,
no Holder shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such Holder from the sale of
Registrable Securities which gave rise to such contribution
obligation. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
ARTICLE V
UNDERWRITING
AND DISTRIBUTION
5.1. Rule
144. The Company covenants that it shall use its
reasonable best efforts to file any reports required to be filed by it under the
Securities Act and the Exchange Act and shall use its reasonable efforts to take
such further action as the Holders may reasonably request, all to the extent
required from time to time to enable such Holders to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
ARTICLE VI
MISCELLANEOUS
6.1. Other Registration
Rights. Except as set forth in the Warrant Agreement, the
Company represents and warrants that no person, other than the Sponsor and any
Permitted Transferee who holds Registrable Securities has any right to require
the Company to register any shares of the Company’s capital stock for sale or to
include shares of the Company’s capital stock in any registration filed by the
Company for the sale of shares of capital stock for its own account or for the
account of any other person.
6.2. Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties
and obligations of the Holders hereunder may be freely assigned or delegated by
such Holder in conjunction with and to the extent of any transfer of Registrable
Securities by any such Holder to a Permitted Transferee. This
Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties hereto and their respective successors and the
permitted assigns of the Sponsor or other Holder or of any assignee of the
Sponsor or other Holder. This Agreement is not intended to confer any
rights or benefits on any persons that are not party hereto other than as
expressly set forth in Article IV and this Section 6.2.
6.3. Stock
Splits, etc. The provisions of this Agreement shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date
hereof.
6.4. Notices. All notices, demands, requests,
consents, approvals or other communications required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed
given on the date of service or transmission if personally served or transmitted
by telegram, telex or facsimile; provided, however, that if such service or
transmission is not on a business day or is after normal business hours, then
such notice shall be deemed given on the next business day. Notice
otherwise sent as provided herein shall be deemed given on the next business day
following timely delivery of such notice to a reputable air courier service with
an order for next-day delivery.
To the
Company:
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Secretary
with a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Park
Avenue Tower
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▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
To the
Sponsor:
Open Acq
LLC
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
To each
of the other Holders:
at such
addresses as shall have been provided by such Holders to the
Company.
6.5. Severability. This Agreement shall be
deemed severable, and the invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of this
Agreement or of any other term or provision hereof. Furthermore, in
lieu of any such invalid or unenforceable term or provision, the parties hereto
intend that there shall be added as a part of this Agreement a provision as
similar in terms to such invalid or unenforceable provision as may be possible
that is valid and enforceable.
6.6. Counterparts. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original,
and all of which taken together shall constitute one and the same
instrument.
6.7. Entire Agreement. This Agreement
(including all agreements entered into pursuant hereto and all certificates and
instruments delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements, representations, understandings,
negotiations and discussions between the parties, whether oral or
written.
6.8. Modifications and
Amendments. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless consented to in writing by the
Company and the holders of a majority-in-interest, on an as-converted to Common
Stock basis, of the Registrable Securities.
6.9. Titles and Headings. Titles and
headings of sections of this Agreement are for convenience only and shall not
affect the construction of any provision of this Agreement.
6.10. Waivers and Extensions. Any
party to this Agreement may waive any right, breach or default which such party
has the right to waive, provided, however, that such waiver will not be
effective against the waiving party unless it is in writing, is signed by such
party, and specifically refers to this Agreement. Waivers may be made
in advance or after the right waived has arisen or the breach or default waived
has occurred. Any waiver may be conditional. No waiver of
any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
6.11. Remedies
Cumulative. In the event that the Company fails to observe
or perform any covenant or agreement to be observed or performed under this
Agreement, the Sponsor or any other Holder may proceed to protect and enforce
its rights by suit in equity or action at law, whether for specific performance
of any term contained in this Agreement or for an injunction against the breach
of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any one
or more of such actions, without being required to post a bond. None of the
rights, powers or remedies conferred under this Agreement shall be mutually
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred by this
Agreement or now or hereafter available at law, in equity, by statute or
otherwise.
6.12. Governing Law; Submission to
Jurisdiction. This Agreement shall be governed by the laws of
the State of New York, without giving effect to any choice-of-law provisions
thereof that would compel the application of the substantive laws of any other
jurisdiction. The parties hereto agree that any action, proceeding or
claim against it arising out of or relating in any way to this Agreement shall
be brought and enforced in the courts of the State of New York or the United
States District Court for the Southern District of New York, and the parties
hereto irrevocably submit to such jurisdiction, which jurisdiction shall be
exclusive. The parties hereto hereby waive any objection to such
exclusive jurisdiction and that such courts represent and inconvenient
forum.
6.13. Waiver
of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the parties hereto in the negotiation,
administration, performance or enforcement hereof.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their duly authorized representatives as of the date first written
above.
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COMPANY:
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By:
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Name:
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Title:
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President,
Chief Executive Officer
and
Secretary
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SPONSOR:
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OPEN
ACQ LLC
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By:
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Name:
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Title:
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Managing
Member
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INITIAL
HOLDERS:
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Name:
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Name:
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SCHEDULE
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