AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of
December 15, 2010 is entered into by and among BioFuel Energy Corp., a Delaware corporation (the
“Company”), and certain holders of securities of the Company party to this Agreement (collectively,
the “Investor Parties”).
A. The persons, including the Investor Parties, listed on Schedule A hereto (the “Existing
Investors”) are party, with the Company, to a Registration Rights Agreement dated as of June 19,
2007 (the “Existing Registration Rights Agreement”), pursuant to which the Company is obligated to
register, subject to the terms and conditions set forth therein, shares of common stock of the
Company, par value $0.01 per share (the “Common Stock”), held by such Existing Investors and their
respective permitted assignees and transferees, including shares of Common Stock deliverable or
delivered in exchange for the Units (as defined below) (all such outstanding or deliverable or
delivered shares of Common Stock constituting “Registrable Securities” under the Existing
Registration Rights Agreement, the “Existing Registrable Securities”);
B. The Investor Parties hold at least fifty percent (50%) of the outstanding Existing
Registrable Securities;
C. The Investor Parties and the Company wish to amend and restate the Existing Registration
Rights Agreement, pursuant to Section 3.9 of the Existing Registration Rights Agreement, to read as
set forth herein;
D. In addition to the Existing Registrable Securities, certain of the Existing Investors
(including certain of the Investor Parties) are holders, or will become holders, of (i) shares of
Series A Non-Voting Convertible Preferred Stock of the Company (the “Series A Preferred Stock”) or
depositary shares in respect thereof, which shall automatically convert into shares of Common Stock
as described in the Certificate of Designation (as defined below) and (ii) warrants that, in the
event that the Company fails to repay the Loan (as defined in the Bridge Loan Agreement (as defined
below)) at maturity, will entitle the holders to a right to purchase shares of Common Stock as
described in the Loan Agreement (the “Warrant”); and
E. The Company desires to provide the Existing Investors with registration rights with respect
to the Existing Registrable Securities and the shares of Common Stock underlying the Series A
Preferred Stock and the Warrant.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the Existing Registration Rights Agreement is amended and restated to read, and the
parties hereto agree, as follows:
ARTICLE I
CERTAIN DEFINED TERMS
Section 1.1 DEFINITIONS. For purposes of this Agreement:
(a) “A&R Rights Offering Letter Agreement” means that certain Amendment and Restatement
to the Rights Offering Letter Agreement among Greenlight Capital, LP, Greenlight Capital
Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners,
Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd., Third Point
Loan LLC, Third Point Advisors, LLC and BioFuel Energy Corp. dated as of December 14, 2010.
(b) “Affiliate” means, with respect to any Person, (i) any other Person of which
securities or other ownership interests representing more than fifty percent (50%) of the
voting interests are, at the time such determination is being made, owned, Controlled or
held, directly or indirectly, by such Person or (ii) any other Person which, at the time
such determination is being made, is Controlling, Controlled by or under common Control
with, such Person. As used herein, “Control”, whether used as a noun or verb, refers to the
possession, directly or indirectly, of the power to direct, or cause the direction of, the
management or policies of a Person, whether through the ownership of voting securities or
otherwise.
(c) “BFE LLC” means BioFuel Energy, LLC, a Delaware limited liability company.
(d) “Bridge Loan Agreement” means the Bridge Loan Agreement, dated September 24, 2010,
by and among the Company, Greenlight APE, L.L.C. as administrative agent and the lender
parties identified therein, as amended, modified, supplemented or restated from time to
time.
(e) “Certificate of Designation” means the Certificate of Designation of the Series A
Non-Voting Convertible Preferred Stock of BioFuel Energy Corp., to be entered into upon
consummation of the rights offering contemplated by the A&R Rights Offering Letter
Agreement.
(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.
(g) “FINRA” means the Financial Industry Regulatory Authority, Inc.
(h) “Holder” means a Person that (i) is a party to this Agreement (or a permitted
transferee under Section 2.11 hereof) or a party to the Existing Registration Rights
Agreement (or a permitted transferee under Section 2.11 thereof) and (ii) owns Registrable
Securities.
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(i) “LLC Agreement” means the BFE LLC Third Amended and Restated LLC Agreement, to be
entered into upon consummation of the rights offering
contemplated by the A&R Rights Offering Letter Agreement, among the Company and the
members of BFE LLC, as the same may be amended, modified, supplemented or restated from time
to time.
(j) “Participating Holders” means Holders participating, or electing to participate, in
an offering of Registrable Securities.
(k) “Person” means any individual, firm, corporation, company, partnership, trust,
incorporated or unincorporated association, limited liability company, joint venture, joint
stock company, government (or an agency or political subdivision thereof) or other entity of
any kind, and shall include any successor (by merger or otherwise) of any such entity.
(l) “Registrable Securities” means shares of Common Stock held by Holders, including
shares of Common Stock deliverable or delivered (i) in exchange for Units pursuant to the
LLC Agreement and the organizational documents of the Company, (ii) upon conversion of the
Series A Preferred Stock (or depositary shares in respect thereof) or (iii) upon exercise of
the Warrant; provided, however, that equity interests that are considered to be Registrable
Securities shall cease to be Registrable Securities (A) upon the sale thereof pursuant to an
effective registration statement, (B) upon the sale thereof pursuant to Rule 144 (or
successor rule under the Securities Act), (C) when such securities cease to be outstanding
or (D) when such securities become eligible for sale under Rule 144 (or successor rule under
the Securities Act), without any volume limitations under such Rule.
(m) “Registration Expenses” mean all expenses (other than underwriting discounts and
commissions) arising from or incident to the performance of, or compliance with, this
Agreement, including, without limitation, (i) SEC, stock exchange, FINRA and other
registration and filing fees, (ii) all fees and expenses incurred in connection with
complying with any securities or blue sky laws (including fees, charges and disbursements of
counsel in connection with blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of
counsel to the Company and of its independent public accountants and any other accounting
and legal fees, charges and expenses incurred by the Company (including any expenses arising
from any special audits or “comfort letters” required in connection with or incident to any
registration), (v) the fees, charges and disbursements of any special experts retained by
the Company in connection with any registration pursuant to the terms of this Agreement,
(vi) all internal expenses of the Company (including all salaries and expenses of its
officers and employees performing legal or accounting duties), (vii) the fees and expenses
incurred in connection with the listing of the Registrable Securities on any securities
exchange and (viii) Securities Act liability insurance (if the Company elects to obtain such
insurance), regardless of whether any Registration Statement filed in connection with such
registration is declared effective.
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(n) “Registration Expenses” shall also include fees, charges and disbursements of one
(1) firm of counsel to all of the Participating Holders participating
in any underwritten public offering pursuant to Article II hereof (which shall be
selected by a majority, based on the number of Registrable Securities to be sold, of the
Participating Holders).
(o) “Registration Statement” means any Registration Statement of the Company filed with
the SEC on the appropriate form pursuant to the Securities Act which covers any of the
Registrable Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including post-effective amendments, in each
case including the prospectus contained therein, all exhibits thereto and all materials
incorporated by reference therein.
(p) “Rights Offering Letter Agreement” means the Rights Offering Letter Agreement,
dated September 24, 2010, by and among the Company and the lender parties identified
therein, as amended, modified, supplemented or restated from time to time.
(q) “SEC” means the United States Securities and Exchange Commission.
(r) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
(s) “Selling Expenses” means the underwriting fees, discounts, selling commissions and
stock transfer taxes applicable to all Registrable Securities registered by the
Participating Holders.
(t) “Units” means (i) Common Units (as defined in the LLC Agreement) held by the
Existing Investors on the date of this Agreement together with (ii) Common Units issued to
the Existing Investors upon conversion of any Preferred Units (as defined in the LLC
Agreement) or Class B Preferred Units (as defined in the LLC Agreement) (if and to the
extent issued) held by the Existing Investors on the date of this Agreement, in the case of
(i) and (ii) after giving effect to the execution of the LLC Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 DEMAND REGISTRATION
(a) Request by Holders. Upon receipt of a written request from Holders that
hold at least twenty percent (20%) of the Registrable Securities then outstanding (the
“Requesting Holders”) that the Company register Registrable Securities held by Requesting
Holders (a “Demand Request”), then the Company shall, within ten (10) days after receipt of
such Demand Request, give written notice of such request (“Request Notice”) to all Holders.
Each Demand Request shall (x) specify the number of Registrable Securities that the
Requesting Holders intend to sell or dispose of, (y) state the intended method or methods of
sale or disposition of the Registrable Securities and (z) specify the expected price range
(net of underwriting discounts and commissions) acceptable to the Requesting Holders to be
received for such Registrable Securities. Following receipt of a Demand Request, the
Company shall:
(i) cause to be filed, as soon as practicable, but within ninety (90) days of
the date of delivery to the Company of the Demand Request, a Registration Statement
covering such Registrable Securities which the Company has been so requested to
register by the Requesting Holders and other Holders who request to the Company that
their Registrable Securities be registered within twenty (20) days of the mailing of
the Request Notice, providing for the registration under the Securities Act of such
Registrable Securities to the extent necessary to permit the disposition of such
Registrable Securities in accordance with the intended method of distribution
specified in such Demand Request;
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(ii) use its reasonable best efforts to have such Registration Statement
declared effective by the SEC as soon as practicable thereafter; and refrain from
filing any other Registration Statements, other than pursuant to a Registration
Statement on Form S-4 or S-8 (or similar or successor forms), with respect to any
other securities of the Company until such date which is ninety (90) days following
effectiveness of the Registration Statement filed in response to the Demand Request.
(b) Effective Registration Statement. A registration requested pursuant to this
Section 2.1 shall not be deemed to have been effected (i) unless a Registration Statement
with respect thereto has become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of disposition by
the Holders thereof set forth in such Registration Statement; (ii) if, after it has become
effective, such registration is interfered with by any stop order, injunction or other order
or requirement of the SEC or other governmental agency or court and has not thereafter
become effective, or if the offering of Registrable Securities is not consummated for any
reason, including, without limitation, if the underwriters of an underwritten public
offering advise the Participating Holders that the Registrable Securities cannot be sold at
a net price per share equal to or above the net price disclosed in the preliminary
prospectus; (iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or waived; or (iv)
if the Requesting Holders are cut back to fewer than fifty percent (50%) of the Registrable
Securities requested to be registered.
(c) Selection of Underwriters. In the event that the Company is required to
file a Registration Statement covering any Registrable Securities of any Requesting Holders
pursuant to Section 2.1(a) hereof and the proposed public offering is to be an underwritten
public offering, the managing underwriter shall be one or more reputable nationally
recognized investment banks selected by a majority in interest of the Requesting Holders and
reasonably acceptable to the Company, which consent shall not be unreasonably withheld,
delayed or conditioned.
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(d) Priority for Demand Registration. Notwithstanding any other provision of
this Agreement, if the managing underwriter of an underwritten public offering determines
and advises the Participating Holders and the Company in writing that the
inclusion of all securities proposed to be included by the Company and any other
Holders in the underwritten public offering would materially and adversely interfere with
the successful marketing of the Requesting Holders’ Registrable Securities, then the Company
and other Holders shall not be permitted to include any securities in excess of the amount,
if any, of securities which the managing underwriter of such underwritten public offering
shall reasonably and in good faith agree in writing to include in such public offering in
addition to the amount of Registrable Securities to be registered for the Requesting
Holders. The Company will be obligated to include in such Registration Statement, as to each
Holder, only a portion of the Registrable Securities such Holder has requested be registered
equal to the ratio which such Holder’s requested Registrable Securities bears to the total
number of Registrable Securities requested to be included in such Registration Statement by
all Holders who have requested that their Registrable Securities be included in such
Registration Statement. It is acknowledged by the parties hereto that pursuant to the
foregoing provision, the securities to be included in a registration requested by the
Requesting Holders pursuant to this Section 2.1 shall be allocated: (i) first, to the
Participating Holders, and (ii) second, to the Company and any other holders of equity
interests of the Company requesting registration of securities of the Company.
(e) Limitation on Demand Registrations. The Company shall only be obligated to
effect six (6) Demand Requests pursuant to this Section 2.1.
(f) Cancellation of Registration. A majority in interest of the Participating
Holders shall have the right to cancel a proposed registration of Registrable Securities
pursuant to this 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 is different from the information known to the Participating Holders at the
time of the Demand Request. Such cancellation of a registration shall not be counted as one
of six (6) Demand Requests and notwithstanding anything to the contrary in the Agreement,
the Company shall be responsible for the expenses of the Participating Holders incurred in
connection with the registration prior to the time of cancellation.
Section 2.2 PIGGYBACK REGISTRATIONS.
(a) Right to Include Registrable Securities. Subject to the limitations
contained in the last sentence of this Section 2.2, each time that the Company proposes for
any reason to register any of its equity interests under the Securities Act, either for its
own account or for the account of equity interest holders exercising demand registration
rights, other than a Demand Request pursuant to Section 2.1 hereof, a rights offering (other
than the rights offering contemplated by the A&R Rights Offering Letter Agreement) or
pursuant to a Registration Statement on Form S-4 or S-8 (or similar or successor forms) (a
“Proposed Registration”), the Company shall promptly give written notice of such Proposed
Registration to all of the Holders of Registrable Securities (which notice shall be given
not less than thirty (30) days prior to the expected effective date of the Company’s
Registration Statement) and shall offer such Holders the right to request inclusion of any
of such Holder’s Registrable Securities in the Proposed
Registration. No registration pursuant to this Section 2.2 shall relieve the Company of
its obligation to register Registrable Securities pursuant to a Demand Request, as
contemplated by Section 2.1 hereof. The rights to piggyback registration may be exercised on
an unlimited number of occasions.
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(b) Piggyback Procedure. Each Holder of Registrable Securities shall have
twenty (20) days from the date of receipt of the Company’s notice referred to in Section
2.2(a) above to deliver to the Company a written request specifying the number of
Registrable Securities such Holder intends to sell and such Holder’s intended method of
disposition. Any Holder shall have the right to withdraw such Holder’s request for inclusion
of such Holder’s Registrable Securities in any Registration Statement pursuant to this
Section 2.2 by giving written notice to the Company of such withdrawal; provided, however,
that the Company may ignore a notice of withdrawal made within twenty-four (24) hours of the
time the Registration Statement is to become effective. Subject to Section 2.2(d) below, the
Company shall use its commercially reasonable efforts to include in such Registration
Statement all such Registrable Securities so requested to be included therein; provided,
however, that the Company may at any time withdraw or cease proceeding with any such
Proposed Registration if it shall at the same time withdraw or cease proceeding with the
registration of all other Registrable Securities originally proposed to be registered. In
the event that the Proposed Registration by the Company is, in whole or in part, an
underwritten public offering of securities of the Company, any request under this Section
2.2(b) shall specify that the Registrable Securities be included in the underwriting on the
same terms and conditions as the securities, if any, otherwise being sold through
underwriters under such registration.
(c) Selection of Underwriters. The managing underwriter for any Proposed
Registration that involves an underwritten public offering shall be one or more reputable
nationally recognized investment banks selected by the Company and reasonably acceptable to
a majority in interest of the Holders, which consent shall not be unreasonably withheld,
delayed or conditioned.
(d) Priority for Piggyback Registration. Notwithstanding any other provision of
this Agreement, if the managing underwriter of an underwritten public offering determines
and advises the Company and the Holders in writing that the inclusion of all Registrable
Securities proposed to be included by the Holders of Registrable Securities in the
underwritten public offering would materially and adversely interfere with the successful
marketing of the Company’s securities, then the Holders of Registrable Securities shall not
be permitted to include, in the aggregate, any Registrable Securities in excess of the
amount, if any, of Registrable Securities which the managing underwriter of such
underwritten public offering shall reasonably and in good faith agree in writing to include
in such public offering in addition to the amount of securities to be registered for the
Company (the “Maximum Offering Amount”). The Company will be obligated to include in such
Registration Statement only a portion of the Registrable Securities such Holder has
requested be registered equal to the ratio which such Holder’s requested Registrable
Securities bears to the total number of Registrable Securities requested to be included in
such Registration Statement by all Holders who have requested that their Registrable
Securities be included in such Registration Statement. It is acknowledged by
the parties hereto that pursuant to the foregoing provision, the securities to be
included in a registration initiated by the Company shall be allocated:
(i) first, to the Company;
(ii) second, pari passu to the Holders; and
(iii) third, to any others requesting registration of securities of the
Company.
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If as a result of the provisions of this Section 2.2(d), any Holder shall not be entitled to
include more than fifty percent (50%) of its Registrable Securities in a registration that
such Holder has requested to be so included, such Holder may withdraw such Holder’s request
to include Registrable Securities in such Registration Statement.
(e) Underwritten Offering. In the event that the Proposed Registration by the
Company is, in whole or in part, an underwritten public offering of securities of the
Company, any request under this Section 2.2 shall specify that the Registrable Securities be
included in the underwriting on the same terms and conditions as the securities, if any,
otherwise being sold through underwriters under such registration.
Section 2.3 FORM S-3 REGISTRATION. Any Holder or group of Holders holding at least ten
percent (10%) of the Registrable Securities (an “Initiating Form S-3 Holder”) may request at any
time following the date hereof that the Company file a Registration Statement under the Securities
Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or
any portion of the Registrable Securities held by such Initiating Form S-3 Holder pursuant to Rule
415 under the Securities Act (“Form S-3 Demand”) if the Company is a registrant qualified to use
Form S-3 (or any similar or successor form) to register such Registrable Securities. If such
condition is met, the Company shall use its reasonable best efforts to register under the
Securities Act on Form S-3 (or any similar or successor form) at the earliest practicable date, for
sale in accordance with the method of disposition specified in the Form S-3 Demand, the number of
Registrable Securities specified in such Form S-3 Demand. In connection with a Form S-3 Demand,
the Company agrees to include in the prospectus included in any Registration Statement on Form S-3,
such material describing the Company and intended to facilitate the sale of securities being so
registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders,
whether or not the rules applicable to preparation of Form S-3 require the inclusion of such
information. Form S-3 Demands will not be deemed to be Demand Requests as described in Section 2.1
hereof and Holders shall have the right to request an unlimited number of Form S-3 Demands.
Notwithstanding the foregoing, the Company shall not be obligated to file more than four (4)
Registration Statements on Form S-3 pursuant to this Section 2.3 in any given twelve (12) month
period.
Section 2.4 LOCK-UP AGREEMENTS. If any registration of Registrable Securities shall be
effected in connection with an underwritten public offering, no Holder shall effect any public sale
or distribution, including any sale pursuant to Rule 144, of any shares of Common Stock or other
security of the Company (except as part of such underwritten public offering) during the period
beginning fourteen (14) days prior to the effective date of the
applicable Registration Statement until the earlier of: (i) such time as the Company and the
managing underwriter shall agree and (ii) one hundred and eighty (180) days.
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Section 2.5 REGISTRATION PROCEDURES.
(a) Obligations of the Company. Whenever registration of Registrable Securities
is required pursuant to this Agreement, the Company shall use its reasonable best efforts to
effect the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as promptly as possible, and in connection with any
such request, the Company shall, as expeditiously as possible:
(i) Preparation of Registration Statement; Effectiveness. Prepare and
file with the SEC (in any event not later than ninety (90) days after receipt of a
Demand Request to file a Registration Statement with respect to Registrable
Securities), a Registration Statement on any form on which the Company then
qualifies, which counsel for the Company shall deem appropriate and pursuant to
which such offering may be made in accordance with the intended method of
distribution thereof (except that the Registration Statement shall contain such
information as may reasonably be requested for marketing or other purposes by the
managing underwriter), and use its reasonable best efforts to cause any registration
required hereunder to become effective as soon as practicable after the initial
filing thereof and remain effective for a period of not less than one hundred and
eighty (180) days (or such shorter period in which all Registrable Securities have
been sold in accordance with the methods of distribution set forth in the
Registration Statement); provided, however, that, in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a continuous
or delayed basis, such one hundred and eighty (180) day period shall be extended, if
necessary, to keep the Registration Statement effective until all such Registrable
Securities are sold, provided that Rule 415, or any successor rule under the
Securities Act, permits an offering on a continuous or delayed basis.
Notwithstanding the foregoing, the Company may (A) defer the filing of a
Registration Statement for a period of not more than 90 days (but not more than once
in any twelve-month period) or (B) suspend the use of a prospectus under a
Registration Statement on Form S-3 for a period not to exceed 30 days in any
three-month period or an aggregate of 90 days in any 12-month period, in each case
if the Board of Directors of the Company determines in good faith that because of
bona fide business reasons (not including the avoidance of the Company’s obligations
hereunder), including the acquisition or divestiture of assets, pending corporate
developments and similar events, it is in the best interests of the Company to delay
the filing of such Registration Statement or to suspend the use of such prospectus,
and prior to delaying such filing or suspending such use, the Company provides the
Participating Holders with written notice of such delay or suspension, which notice
need not specify the nature of the event giving rise to such delay or suspension;
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(ii) Participation in Preparation. Provide any Participating Holder,
any underwriter participating in any disposition pursuant to a Registration
Statement,
and any attorney, accountant or other agent retained by any Participating
Holder or underwriter (each, an “Inspector” and, collectively, the “Inspectors”),
the opportunity to participate (including, but not limited to, reviewing, commenting
on and attending all meetings) in the preparation of such Registration Statement,
each prospectus included therein or filed with the SEC and each amendment or
supplement thereto;
(iii) Due Diligence. For a reasonable period prior to the filing of any
Registration Statement pursuant to this Agreement, make available for inspection and
copying by the Inspectors such financial and other information and books and
records, pertinent corporate documents and properties of the Company and its
subsidiaries and cause the officers, directors, employees, counsel and independent
certified public accountants of the Company and its subsidiaries to respond to such
inquiries and to supply all information reasonably requested by any such Inspector
in connection with such Registration Statement, as shall be reasonably necessary, in
the judgment of the respective counsel referred to in Section 2.5(a)(ii), to conduct
a reasonable investigation within the meaning of the Securities Act;
(iv) General Notifications. Promptly notify in writing the
Participating Holders, the sales or placement agent, if any, therefor and the
managing underwriter of the securities being sold, (A) when such Registration
Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to any such
Registration Statement or any post-effective amendment, when the same has become
effective, (B) when the SEC notifies the Company whether there will be a “review” of
such Registration Statement, (C) of any comments (oral or written) by the SEC and by
the blue sky or securities commissioner or regulator of any state with respect
thereto and (D) of any request by the SEC for any amendments or supplements to such
Registration Statement or the prospectus or for additional information;
(v) 10b-5 Notification. Promptly notify in writing the Participating
Holders, the sales or placement agent, if any, therefor and the managing underwriter
of the securities being sold pursuant to any Registration Statement at any time when
a prospectus relating thereto is required to be delivered under the Securities Act
upon discovery that, or upon the happening of any event as a result of which, any
prospectus included in such Registration Statement (or amendment or supplement
thereto) contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made, and
the Company shall promptly prepare a supplement or amendment to such prospectus and
file it with the SEC (in any event no later than ten (10) days following notice of
the occurrence of such event to each Participating Holder, the sales or placement
agent and the managing underwriter) so that after delivery of such prospectus, as so
amended or supplemented, to the purchasers of such Registrable Securities, such
prospectus, as so amended or supplemented,
shall not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made;
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(vi) Notification of Stop Orders; Suspensions of Qualifications and
Exemptions. Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities
being sold of the issuance by the SEC of (A) any stop order issued or threatened to
be issued by the SEC or (B) any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and the Company agrees to use its reasonable best efforts to (x)
prevent the issuance of any such stop order, and in the event of such issuance, to
obtain the withdrawal of any such stop order and (y) obtain the withdrawal of any
order suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such Registration Statement
for sale in any jurisdiction at the earliest practicable date;
(vii) Amendments and Supplements; Acceleration. Prepare and file with
the SEC such amendments, including post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable time period required hereunder and, if applicable, file
any Registration Statements pursuant to Rule 462(b) under the Securities Act; cause
the related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange 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 as so amended or in such prospectus as so supplemented. If a
majority in interest of the Participating Holders so request, request acceleration
of effectiveness of the Registration Statement from the SEC and any post-effective
amendments thereto, if any are filed; provided that at the time of such request, the
Company does not in good faith believe that it is necessary to amend further the
Registration Statement in order to comply with the provisions of this subparagraph.
If the Company wishes to further amend the Registration Statement prior to
requesting acceleration, it shall have five (5) days to so amend prior to requesting
acceleration;
(viii) Copies. Furnish as promptly as practicable to each Participating
Holder and Inspector prior to filing a Registration Statement or any supplement or
amendment thereto, copies of such Registration Statement, supplement or amendment as
it is proposed to be filed, and after such filing such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other
documents as each such Participating Holder or underwriter may reasonably
request in order to facilitate the disposition of the Registrable Securities owned
by such Participating Holder;
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(ix) Blue Sky. Use its reasonable best efforts to, prior to any public
offering of the Registrable Securities, register or qualify (or seek an exemption
from registration or qualifications) such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any Participating Holder or
underwriter may request, and to continue such qualification in effect in each such
jurisdiction for as long as is permissible pursuant to the laws of such
jurisdiction, or for as long as a Participating Holder or underwriter requests or
until all of such Registrable Securities are sold, whichever is shortest, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable any Participating Holder to consummate the disposition in such jurisdictions
of the Registrable Securities;
(x) Other Approvals. Use its reasonable best efforts to obtain all
other approvals, consents, exemptions or authorizations from such governmental
agencies or authorities as may be necessary to enable the Participating Holders and
underwriters to consummate the disposition of Registrable Securities;
(xi) Agreements. Enter into customary agreements (including any
underwriting agreements in customary form), and take such other actions as may be
reasonably required in order to expedite or facilitate the disposition of
Registrable Securities;
(xii) “Cold Comfort” Letter. Obtain a “cold comfort” letter from the
Company’s independent public accountants in customary form and covering such matters
of the type customarily covered by “cold comfort” letters as the managing
underwriter may reasonably request, and reasonably satisfactory to a majority in
interest of the Participating Holders;
(xiii) Legal Opinion. Furnish, at the request of any underwriter of
Registrable Securities on the date such securities are delivered to the underwriters
for sale pursuant to such registration, an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
Holders, and the placement agent or sales agent, if any, thereof and the
underwriters, if any, thereof, covering such legal matters with respect to the
registration in respect of which such opinion is being given as such underwriter may
reasonably request and as are customarily included in such opinions, and reasonably
satisfactory to a majority in interest of the Participating Holders;
(xiv) SEC Compliance; Earnings Statement. Use its reasonable best
efforts to comply with all applicable rules and regulations of the SEC and make
available to its shareholders, as soon as reasonably practicable, but no later than
fifteen (15) months after the effective date of any Registration Statement, an
earnings statement covering a period of twelve (12) months beginning after the
effective date of such Registration Statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
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(xv) Certificates; Closing. Provide officers’ certificates and other
customary closing documents;
(xvi) FINRA. Cooperate with each Participating Holder and each
underwriter participating in the disposition of such Registrable Securities and
underwriters’ counsel in connection with any filings required to be made with FINRA;
(xvii) Road Show. Cause appropriate officers as are requested by a
managing underwriter to participate in a “road show” or similar marketing effort
being conducted by such underwriter with respect to an underwritten public offering;
(xviii) Listing. Use its reasonable best efforts to cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and if not so listed, to be listed
on the NASDAQ automated quotation system;
(xix) Transfer Agent, Registrar and CUSIP. Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereto and a CUSIP
number for all such Registrable Securities, in each case, no later than the
effective date of such registration;
(xx) Private Sales. Use its reasonable best efforts to assist a Holder
in facilitating private sales of Registrable Securities by, among other things,
providing officers’ certificates and other customary closing documents reasonably
requested by a Holder; and
(xxi) Reasonable Best Efforts. Use its reasonable best efforts to take
all other actions necessary to effect the registration of the Registrable Securities
contemplated hereby.
(b) Seller Information. The Company may require each Participating Holder as to
which any registration of such Holder’s Registrable Securities is being effected to furnish
to the Company such information regarding such Holder and such Holder’s method of
distribution of such Registrable Securities as the Company may from time to time reasonably
request in writing. If a Holder refuses to provide the Company with any of such information
on the grounds that it is not necessary to include such information in the Registration
Statement, the Company may exclude such Participating Holder’s Registrable Securities from
the Registration Statement if the Company provides such Participating Holder with an opinion
of counsel to the effect that such information must be included in the Registration
Statement and such Participating Holder continues thereafter to withhold such information.
The exclusion of a Participating Holder’s Registrable Securities shall not affect the
registration of the other Registrable Securities to be included in the Registration
Statement.
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(c) Notice to Discontinue. Each Participating Holder whose Registrable
Securities are covered by a Registration Statement filed pursuant to this Agreement agrees
that, upon receipt of written notice from the Company of the happening of any event of the
kind described in Section 2.5(a)(v), such Participating Holder shall forthwith discontinue
the disposition of Registrable Securities until such Participating Holder’s receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2.5(a)(v) or until
it is advised in writing by the Company that the use of the prospectus may be resumed and
has received copies of any additional or supplemental filings which are incorporated by
reference into the prospectus, and, if so directed by the Company in the case of an event
described in Section 2.5(a)(v), such Participating Holder shall deliver to the Company (at
the Company’s expense) all copies, other than permanent file copies then in such
Participating Holder’s possession, of the 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 is to
be maintained effective by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 2.5(a)(v) to and including the date when
the Participating Holder shall have received the copies of the supplemented or amended
prospectus contemplated by, and meeting the requirements of, Section 2.5(a)(v).
Section 2.6 REGISTRATION EXPENSES. Except as otherwise provided herein, all
Registration Expenses shall be borne by the Company. All Selling Expenses relating to Registrable
Securities registered shall be borne by the Participating Holders of such Registrable Securities
pro rata on the basis of the number of Registrable Securities so registered.
Section 2.7 INDEMNIFICATION
(a) Indemnification by the Company. The Company agrees, notwithstanding
termination of this Agreement, to indemnify and hold harmless to the fullest extent
permitted by law, each Holder, each of their directors, officers, employees, advisors,
agents and general or limited partners (and the directors, officers, employees, advisors and
agents thereof), their respective Affiliates and each Person who controls (within the
meaning of the Securities Act or the Exchange Act) any of such Persons, and each underwriter
and each Person who controls (within the meaning of the Securities Act or the Exchange Act)
any underwriter (collectively, “Holder Indemnified Parties”) from and against any and all
losses, claims, damages, expenses (including, without limitation, reasonable costs of
investigation and fees, disbursements and other charges of counsel, any amounts paid in
settlement effected with the Company’s consent, which consent shall not be unreasonably
withheld or delayed and any costs incurred in enforcing the Company’s indemnification
obligations hereunder) or other liabilities (collectively, “Losses”) to which any such
Holder Indemnified Party may become subject under the Securities Act, Exchange Act, any
other federal law, any state or common law or any rule or regulation promulgated thereunder
or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) are resulting from or arising out of or based upon (i) any
untrue, or alleged untrue, statement of a material fact contained in any Registration
Statement, prospectus or preliminary prospectus (as amended or
14
supplemented) or any document
incorporated by reference in any of the
foregoing or resulting from or arising out of or based upon any omission or alleged
omission to state therein 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 or (ii) any violation by the Company of the Securities
Act, Exchange Act, any other federal law, any state or common law or any rule or regulation
promulgated thereunder or otherwise incident to any registration, qualification or
compliance and in any such case, the Company will promptly reimburse each such Holder
Indemnified Party for any legal and any other Losses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability, action or
investigation or proceeding (collectively, a “Claim”). Such indemnity obligation shall
remain in full force and effect regardless of any investigation made by or on behalf of the
Holder Indemnified Parties and shall survive the transfer of Registrable Securities by such
Holder Indemnified Parties.
(b) Indemnification by Holders. In connection with any proposed registration in
which a Holder is participating pursuant to this Agreement, each such Holder shall furnish
to the Company in writing such information with respect to such Holder as the Company may
reasonably request or as may be required by law for use in connection with any Registration
Statement or prospectus or preliminary prospectus to be used in connection with such
registration and each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, any underwriter retained by the Company and their respective
directors, officers, partners, employees, advisors and agents, their respective Affiliates
and each Person who controls (within the meaning of the Securities Act or the Exchange Act)
any of such Persons to the same extent as the foregoing indemnity from the Company to the
Holder Indemnified Parties as set forth in Section 2.7(a) (subject to the exceptions set
forth in the foregoing indemnity, the proviso to this sentence and applicable law), but only
with respect to any such information furnished in writing by such Holder expressly for use
therein; provided, however, that the liability of any Holder under this Section 2.7(b) shall
be limited to the amount of the net proceeds received by such Holder in the offering giving
rise to such liability. Such indemnity obligation shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder Indemnified Parties
(except as provided above) and shall survive the transfer of Registrable Securities by such
Holder.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to
the indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party
of any written notice of the commencement of any action, suit, proceeding or investigation
or threat thereof made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; provided, however, that, the
failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party hereunder unless and to the extent such
Indemnifying Party is materially prejudiced by such failure. If notice of commencement of
any such action is given to the Indemnifying Party as above provided, the Indemnifying Party
shall be entitled to participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly
15
notified, to assume the defense of such action at its own
expense, with counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (i)
the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume
the defense of such action with counsel satisfactory to the Indemnified Party in its
reasonable judgment or (iii) the named parties to any such action (including, but not
limited to, any impleaded parties) reasonably believe that the representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate
under applicable standards of professional conduct. In the case of clause (ii) above and
(iii) above, the Indemnifying Party shall not have the right to assume the defense of such
action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any
settlement entered into without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnified Party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the Indemnified Party from all liability arising out of
such action or claim and (B) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of any Indemnified Party. The rights
afforded to any Indemnified Party hereunder shall be in addition to any rights that such
Indemnified Party may have at common law, by separate agreement or otherwise.
(d) Contribution. If the indemnification provided for in this Section 2.7 from
the Indemnifying Party is unavailable or insufficient to hold harmless an Indemnified Party
in respect of any Losses referred to herein, then the Indemnifying Party, in lieu of
indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and the Indemnified Party, as well as any other
relevant equitable considerations. The relative faults of the Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, was made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the Indemnifying
Party’s and Indemnified Party’s relative intent, knowledge, access to information and
opportunity to correct or prevent such action; provided, however, that the liability of any
Holder under this Section 2.7(d) shall be limited to the amount of the net proceeds received
by such Holder in the offering giving rise to such liability. The amount paid or payable by
a party as a result of the Losses or other liabilities referred to above shall be deemed to
include, subject to the limitations set forth in Sections 2.7(a), 2.7(b) and 2.7(c), any
legal or other fees, charges or expenses reasonably incurred by such party in connection
with any investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 2.7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this
Section 2.7(d).
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Section 2.8 RULE 144 AND RULE 144A; OTHER EXEMPTIONS. With a view to making available
to the Holders the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and
other rules and regulations of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration, the Company covenants that it shall (i) file in a
timely manner all reports and other documents required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC thereunder and (ii) take such
further action as each Holder may reasonably request (including, but not limited to, providing any
information necessary to comply with Rule 144 and Rule 144A, if available with respect to resales
of the Registrable Securities under the Securities Act), at all times from and after the date
hereof, all to the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation of the exemptions
provided by (x) Rule 144 and Rule 144A (if available with respect to resales of the Registrable
Securities) under the Securities Act, as such rules may be amended from time to time or (y) any
other rules or regulations now existing or hereafter adopted by the SEC. Upon the written request
of a Holder, the Company shall deliver to the Holder a written statement as to whether it has
complied with such requirements.
Section 2.9 CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. No Holder may participate in
any Registration Statement hereunder unless such Holder completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements, and agrees to sell such Holder’s Registrable
Securities on the basis provided in any underwriting agreement approved by the Holder or Holders
entitled hereunder to approve such arrangements; provided, however, that no such Holder shall be
required to make any representations or warranties to the Company or the underwriters in connection
with any such registration other than representations and warranties as to (i) such Holder’s
ownership of its Registrable Securities to be sold or transferred, (ii) such Holder’s power and
authority to effect such transfer and (iii) such matters pertaining to compliance with applicable
securities laws as may be reasonably requested. Such Holders of Registrable Securities to be sold
by such underwriters may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of such Holders and that any or all of the
conditions precedent to the obligations of the underwriters under the underwriting agreement be
conditions precedent to the obligations of the Holders.
Section 2.10 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company represents and
warrants that other than pursuant to the Existing Registration Rights Agreement it has not granted
registration rights prior to the date hereof and agrees that from and after the date hereof, it
shall not, without the prior written consent of the Holders of at least fifty percent (50%) of the
Registrable Securities then outstanding, enter into any agreement (or amendment or waiver of the
provisions of any agreement) with any holder or prospective holder of any securities of the Company
that would grant such holder registration rights that are more favorable, pari passu or senior to
those granted to the Investors hereunder.
17
Section 2.11 TRANSFER OF REGISTRATION RIGHTS. The rights of a Holder hereunder may be
transferred or assigned in connection with a transfer of Registrable Securities to (i) any
Affiliate of a Holder, (ii) any subsidiary, parent, partner, retired partner, limited partner,
shareholder or member of a Holder or (iii) any family member or trust for the benefit of any
Holder, or (iv) any transferee who, after such transfer, holds at least one thousand (1,000)
Registrable Securities (as adjusted for any stock dividends, stock splits, combinations and
reorganizations and similar events). Notwithstanding the foregoing, such rights may only be
transferred or assigned provided that all of the following additional conditions are satisfied: (a)
such transfer or assignment is effected in accordance with applicable securities laws; (b) such
transferee or assignee agrees in writing to become subject to the terms of this Agreement; and (c)
the Company is given written notice by such Holder of such transfer or assignment, stating the
name and address of the transferee or assignee and identifying the Registrable Securities with
respect to which such rights are being transferred or assigned.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and
warranties made in the LLC Agreement or any certificate or instrument delivered to the Investors
pursuant to or in connection with the LLC Agreement shall survive the execution and delivery of the
LLC Agreement and all statements contained in any certificate or other instrument delivered by the
Company hereunder or thereunder or in connection herewith or therewith shall be deemed to
constitute representations and warranties made by the Company.
Section 3.2 ENTIRE AGREEMENT. This Agreement and any certificates, documents,
instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter hereof.
Section 3.3 ASSIGNMENT; BINDING EFFECT. Except as otherwise provided in Section 2.11,
no party may assign either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other parties; provided that without the consent of any
other party hereto the rights of the Investors hereunder are assignable to an assignee or
transferee who acquires all of the Units held by an Investor, as the case may be. All of the terms,
agreements, covenants, representations, warranties and conditions of this Agreement are binding
upon, and inure to the benefit of and are enforceable by, the parties and their respective
successors and permitted assigns.
Section 3.4 NOTICES. All notices, requests and other communications provided for or
permitted to be given under this Agreement must be in writing and shall be given by personal
delivery, by certified or registered United States mail (postage prepaid, return receipt
requested), by a nationally recognized overnight delivery service for next day delivery, or by
facsimile transmission, to the address listed for each party in the LLC Agreement (or to such other
address as any party may give in a notice given in accordance
18
with the provisions hereof). All
notices, requests or other communications will be effective and deemed given only as
follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by
certified or registered mail, on the fifth business day after being deposited in the United States
mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as
confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s
confirmation of receipt of such facsimile transmission, except that if such confirmation is
received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day
that is not a business day, then such notice, request or communication will not be deemed effective
or given until the next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
Section 3.5 SPECIFIC PERFORMANCE; REMEDIES. Each party acknowledges and agrees that
the other parties would be damaged irreparably if any provision of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. Accordingly, the
parties will be entitled to an injunction or injunctions to prevent breaches of the provisions of
this Agreement and to enforce specifically this Agreement and its provisions in any action or
proceeding instituted in any state or federal court sitting in New York City, New York having
jurisdiction over the parties and the matter, in addition to any other remedy to which they may be
entitled, at law or in equity. Except as expressly provided herein, the rights, obligations and
remedies created by this Agreement are cumulative and in addition to any other rights, obligations
or remedies otherwise available at law or in equity. Except as expressly provided herein, nothing
herein will be considered an election of remedies.
Section 3.6 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby shall only be brought in any state or federal court
sitting in New York City, New York, and each party consents to the exclusive jurisdiction
and venue of such courts (and of the appropriate appellate courts therefrom) in any such
action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of any such,
action, suit or proceeding in any such court or that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Process in any such
action, suit or proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the foregoing, service of
process on such party as provided in Section 3.4 shall be deemed effective service of
process on such party.
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT
OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY
DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED
HEREBY. THE SCOPE OF THIS
WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS
19
AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED
HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON
LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND REPRESENTATIONS IN THIS SECTION 3.6(b).
Section 3.7 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any choice of law
principles.
Section 3.8 HEADINGS. The article and section headings contained in this Agreement are
inserted for convenience only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 3.9 AMENDMENTS. This Agreement may not be amended or modified without the
written consent of the Company and the Holders of at least fifty percent (50%) of the Registrable
Securities then outstanding; provided, however, that any amendment or modification that adversely
affects the rights of one or more Holders of Registrable Securities under this Agreement, in their
capacity as such, in a manner that is materially different from the manner in which such amendment
or modification affects the rights of other Holders of Registrable Securities under this Agreement,
in their capacity as such, shall require the consent of each such adversely affected Holder.
Section 3.10 EXTENSIONS; WAIVERS. Any party may, for itself only, (a) extend the time
for the performance of any of the obligations of any other party under this Agreement, (b) waive
any inaccuracies in the representations and warranties of any other party contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
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Section 3.11 SEVERABILITY. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions hereof; provided that if any provision of this Agreement, as
applied to any party or to any circumstance, is judicially determined not to be enforceable in
accordance with its terms, the parties agree that the court judicially making such determination
may modify the provision in a manner consistent with its objectives such that it is enforceable,
and/or to delete specific words or phrases, and in its modified form, such provision will then be
enforceable and will be enforced.
Section 3.12 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original but all of which together will
constitute one and the same instrument. This Agreement will become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties. For
purposes of determining whether a party has signed this Agreement or any document contemplated
hereby or any amendment or waiver hereof, only a handwritten original signature on a paper document
or a facsimile copy of such a handwritten original signature shall constitute a signature,
notwithstanding any law relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
Section 3.13 CONSTRUCTION. This Agreement has been freely and fairly negotiated among
the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption or burden of proof will arise
favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any
reference to any law will be deemed to refer to such law as in effect on the date hereof and all
rules and regulations promulgated thereunder, unless the context requires otherwise. The words
“include,” “includes,” and “including” will be deemed to be followed by “without limitation.”
Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender,
and words in the singular form will be construed to include the plural and vice versa, unless the
context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,”
and words of similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The parties intend that each representation, warranty, and
covenant contained herein will have independent significance. If any party has breached any
covenant contained herein in any respect, the fact that there exists another covenant relating to
the same subject matter (regardless of the relative levels of specificity) which the party has not
breached will not detract from or mitigate the fact that the party is in breach of the first
covenant. Time is of the essence in the performance of this Agreement.
Section 3.14 ATTORNEYS’ FEES. If any dispute among any parties arises in connection
with this Agreement, the prevailing party in the resolution of such dispute in any action or
proceeding will be entitled to an order awarding full recovery of reasonable attorneys’ fees and
expenses, costs and expenses (including experts’ fees and expenses and the costs of enforcing this
Section 3.14) incurred in connection therewith, including court costs, from the non-prevailing
party.
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Section 3.15 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement there is a
reference to a specific number of shares of the Company’s capital stock of
any class or series, then, upon the occurrence of any subdivision, combination or stock
dividend of such class or series of stock, the specific number of shares so referenced in this
Agreement will automatically be proportionally adjusted to reflect the effect of such subdivision,
combination or stock dividend on the outstanding shares of such class or series of stock.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date first above written.
| BIOFUEL ENERGY CORP. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Executive V.P. & CFO | |||||
Signature Pages to Amended and Restated Registration Rights Agreement
GREENLIGHT CAPITAL, LP |
||||
| By: | Greenlight Capital, LLC, its general | |||
| partner | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL QUALIFIED, L.P. |
||||
| By: | Greenlight Capital, LLC, its general | |||
| partner | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT REINSURANCE, LTD. |
||||
| By: | DME Advisors, L.P., its investment | |||
| manager | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL OFFSHORE PARTNERS |
||||
| By: | Greenlight Capital, Inc., its | |||
| investment manager | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
Signature Pages to Amended and Restated Registration Rights Agreement
| GREENLIGHT CAPITAL (GOLD), LP |
||||
| By: | DME Management GP, LLC, its general | |||
| partner | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL OFFSHORE MASTER (GOLD),
LTD. |
||||
| By: | DME Capital Management, LP, its | |||
| investment manager | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
Signature Pages to Amended and Restated Registration Rights Agreement
| THIRD POINT PARTNERS LP |
||||
| By: | Third Point Advisors, L.L.C., its | |||
| general partner | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| Chief Operating Officer and General Counsel | ||||
| THIRD POINT PARTNERS QUALIFIED, L.P. |
||||
| By: | Third Point Advisors, L.L.C., its | |||
| general partner | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| Chief Operating Officer and General Counsel | ||||
| THIRD POINT LOAN LLC |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Chief Operating Officer and General Counsel | |||
| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx | ||||
Signature Pages to Amended and Restated Registration Rights Agreement
Schedule A
[Parties to Existing Registration Rights Agreement]
