REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 21, 2003 by and among Xxxxx River Group, Inc., a
Delaware corporation (the "Company"), J. Xxxx Xxxxx (the "Founder"), each of the
individuals and entities whose names and addresses appear on Schedule I hereto
(the "Initial Holders") and such additional individuals and entities as may
become parties hereto after the date hereof (each, an "Additional Holder" and
collectively, with the Initial Holders, the "Holders").
WITNESSETH:
WHEREAS, each Initial Holder has previously purchased shares of the
Company's Series A Convertible Preferred Stock ("Preferred Shares") pursuant to
the terms the Confidential Private Placement Memorandum of the Company, dated as
of December 5, 2002 (the "Memorandum") and a Subscription Agreement between the
Company and such Initial Holder (each, a "Subscription Agreement"); and
WHEREAS, pursuant to the terms of the Memorandum, the Company and the
Holders desire to provide for the circumstances under which the Company will
register shares of the company's common stock, par value $.01 per share (the
"Common Stock"), issued or issuable to the Holders.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Affiliate" of an entity shall mean another entity Controlling, Controlled
by or under common Control with such entity.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Control" shall mean direct or indirect ownership of a majority of the
voting equity securities of another entity, the ability to appoint a majority of
the board of directors or similar governing body of such entity, or the ability,
through contract or otherwise, to direct the management of such entity.
"Conversion Shares" shall mean the Common Stock issued or issuable upon
conversion of (x) the Preferred Shares or (y) shares of a second series of
preferred stock expected to be called, "Series B Convertible Preferred Stock."
"Demand Registration" shall have the meaning set forth in Section 3.1.
-1-
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Form S-3" shall mean Form S-3 under the Securities Act and the regulations
with respect thereto, or any similar successor form or other set of legal
requirements adopted by the Commission, all as the same shall be in effect from
time to time.
"Initiating Holders" shall mean the Required Holders requesting a
registration of Registrable Securities.
"IPO" means the effective registration by the Company of its Common Stock
under the Securities Act on Form S-1 or any successor form or other set of legal
requirements adopted by the Commission, all as the same shall be in effect from
time to time.
"Person" shall mean an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"Registrable Securities" means (i) the Conversion Shares, and (ii) any
securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the foregoing,
provided that Registrable Securities shall not include securities that may be
transferred pursuant to Rule 144 or any successor thereto without limitation as
to volume or manner of sale. References to any quantity of Registrable
Securities shall mean the number of Conversion Shares into which such
Registrable Securities could be converted.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and filing fees, printing expenses,
escrow fees, fees and disbursements of Company counsel, blue sky fees and
expenses, and expenses of any regular or special audits incident to or required
by any such registration including, without limitation, for any registration
including Registrable Securities, the fees and expenses of one special counsel
to the selling shareholders, but shall not include Selling Expenses.
"Required Amount" shall mean Registrable Securities the anticipated
offering price of which would exceed $10,000,000.
"Required Holders" shall mean any Holder or Holders that hold, in the
aggregate, Registrable Securities constituting at least fifty percent (50%) of
the Registrable Securities.
"Rule 144" shall mean Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
-2-
"Rule 145" shall mean Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar successor federal statute and the rules and regulations thereunder, all
as the same shall be in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and transfer taxes applicable to the sale of Registrable Securities.
"Series A/B Holders" shall mean, collectively, the holders of (i) Preferred
Shares, (ii) shares of Series B Convertible Preferred Stock or (iii) Conversion
Shares.
"Supermajority Holders" shall mean any Holder or Holders who in the
aggregate hold, or have the right to receive, at least sixty-six and two-thirds
percent (66-2/3%) of the Registrable Securities.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
2.1. Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
2.2. Holders of Registrable Securities. A person is deemed to be a holder
of Registrable Securities whenever such person is the registered holder of
Registrable Securities.
3. DEMAND REGISTRATION.
3.1. Request for Registration. Subject to the provisions of Section 3.2
hereof, the Required Holders of Registrable Securities may request at any time
following the date that is six (6) months after the closing of an underwritten
initial public offering on a "firm commitment" basis pursuant to an effective
registration statement (other than on Forms S-4 or S-8 or any successor forms
thereto) filed pursuant to the Securities Act of 1933, as amended, or series of
such public offerings (whether related or unrelated), covering the offer and
sale of Common Stock for the account of the Company in which the Company
actually receives aggregate cash proceeds equal to or greater than $25,000,000
(after deducting underwriters' discounts and commissions and other offering
expenses), a registration by the Company of all or part of such Required
Holders' Registrable Securities (but not less than the Required Amount) (a
"Demand Registration"). Within twenty (20) days after receipt of such request,
the Company will serve written notice of such registration request to all
Holders of Registrable Securities and will, subject to the provisions of Section
3.2 hereof, use its best efforts to effect such registration and shall include
in such registration and offering all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within
fifteen (15) business days after the receipt by the applicable Holder of the
Company's notice. All requests made pursuant to this Section 3.1 will specify
the number of shares of Registrable Securities to be registered and will also
specify the intended method of disposition thereof; provided that such method of
disposition shall be an underwritten offering if requested by the holders of a
majority of the Registrable Securities requested to be included in such
registration.
-3-
3.2. Number of Demand Registrations. The Required Holders of Registrable
Securities will be entitled to request three Demand Registrations in which the
Company will pay all Registration Expenses, provided that at least twelve (12)
months must elapse after the effective date of the first Demand Registration
before the Required Holders shall be entitled to initiate a second Demand
Registration, and at least twelve (12) months must elapse after the effective
date of the second Demand Registration before the Required Holders shall be
entitled to initiate a third Demand Registration. A registration initiated as a
Demand Registration will not count as a Demand Registration (a) unless such
registration includes at least ninety percent (90%) of the Registrable
Securities requested to be included in such registration by all eligible Holders
and (b) until the earliest of (i) the date such registration has been effective
for 120 days, (ii) the date all Registrable Securities registered in such Demand
Registration have been sold and (iii) the withdrawal of the registration or
request for registration by a majority of the Holders of Registrable Securities.
3.3. S-3 Registrations. In addition to the Demand Registrations provided
pursuant to Section 3.2 hereof, the Required Holders will be entitled to request
an unlimited number of underwritten and non-underwritten Demand Registrations on
Form S-3 in which the Company will pay all Registration Expenses; provided,
however, that the Holders are not entitled to request more than four Demand
Registrations pursuant to this Section 3.3 during any 12-month period and will
not be entitled to request any such Demand Registration pursuant to this Section
3.3 unless the anticipated aggregate price to the public (net of underwriting
discounts and commissions) would exceed $1,000,000. Demand Registrations on Form
S-3 may only be requested when the Company is permitted to use such form (under
currently law, no sooner than one year after an initial registration on Form
S-1). At all times after the Company has completed a registration on Form S-1
(or any similar successor form required by the Commission from time to time) it
shall use its best efforts to comply with the requirements of the Securities Act
for qualifying to register its shares on Form S-3 at the earliest possible date
and to maintain such qualification.
3.4. Effective Registration. In any registration initiated as a Demand
Registration, the Company will pay all Registration Expenses whether or not the
registration has become effective.
3.5. Rights of Company and Other Holders to Piggyback on Demand
Registrations. The Company shall have the right to include its securities
("Company Securities"), and any holders of equity securities of the Company
convertible into Common Stock (other than Registrable Securities) shall have the
right to include any such other securities ("Other Securities") in a
registration statement initiated as a Demand Registration under this Section 3
if (1) such Company Securities or Other Securities are of the same class as the
Registrable Securities being registered, (2) such Company Securities or Other
Securities are not excluded from such Demand Registration because of the
circumstances contemplated by Section 3.6 and (3) if such Demand Registration is
an underwritten offering, the Company or such Holders, as applicable, agree in
writing to sell their Company Securities or Other Securities, as the case may
be, on the same terms and conditions as apply to the Registrable Securities
being sold. If the Company registers any of its securities on its own behalf in
a Demand Registration (in accordance with the provisions of this Section 3.5),
such Demand Registration shall not count as a Demand Registration to which the
Holders of Registrable Securities are entitled under Section
-4-
3.2 and the Company shall pay the Registration Expenses of such registration. If
any holders register Other Securities in a Demand Registration (in accordance
with the provisions of this Section 3.5), such holders shall pay the fees and
expenses of counsel to such holders and their pro rata share of the Registration
Expenses if the Registration Expenses for such registration are not paid by the
Company for any reason. The Company covenants that it shall not grant any
registration rights to any Person which rights would conflict or be inconsistent
with the provisions of this Section 3.5. In the event of such a conflict or
inconsistency, the provisions of this Section 3.5 shall prevail.
3.6. Priority on Demand Registrations. (a) If a Demand Registration is an
underwritten offering, and the managing underwriters advise in writing the
Company and the Holders of the Registrable Securities being registered that in
their opinion the number of Registrable Securities requested to be included
exceeds the number of securities which can be sold in such offering, the Company
will include in such registration the number of Registrable Securities which in
the opinion of such underwriters can be sold, and such securities shall be
allocated pro rata among the holders of Registrable Securities on the basis of
the number of Registrable Securities the respective Series A/B Holder is
entitled to have included in such registration or such other proportion as shall
be mutually agreed by all participating Holders.
(b) If Company Securities or Other Securities are proposed to be
included by the Company or its security holders in a Demand Registration which
is an underwritten offering (subject to and in accordance with the provisions of
Section 3.5 hereof) and the managing underwriters advise in writing the Company
and the Series A/B Holders that, in addition to all of the Registrable
Securities being registered on behalf of the Series A/B Holders, some but not
all of said Company Securities and Other Securities can be included in such
underwritten offering, those Company Securities and Other Securities which in
the opinion of such underwriters can be sold shall be allocated (i) first, to
the Company and (ii) second, to the holders of such Other Securities, allocated
among them in such proportions as such holders and the Company may agree. For
the avoidance of doubt, in any Demand Registration the Registrable Securities
shall have priority over any Company Securities or Other Securities.
3.7. Selection of Underwriters. If any Demand Registration is an
underwritten offering (including without limitation a "best efforts"
underwritten offering), the investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority of the
Registrable Securities requested to be included in such offering; provided that
such investment bankers and managers must be representatives of a nationally
recognized investment bank with experience handling equity offerings in the
insurance industry and be reasonably satisfactory to the Company.
3.8. Deferral by Company. If the Company shall furnish to the Holders of
Registrable Securities a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors it would be
materially detrimental to the Company or its shareholders for a registration
statement to be filed in the near future, then the Company's obligation to use
its best efforts to register under this Section 3 shall be deferred for a period
not to exceed 180 days from the date of receipt of written request from the
Initiating Holders, but not more than once during any 12-month period.
-5-
4. PIGGYBACK REGISTRATIONS.
4.1. Piggyback not a Demand Registration. A registration of Registrable
Securities pursuant to this Section 4 shall not be counted as a Demand
Registration under Section 3 hereof.
4.2. Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act on a form, which would permit inclusion
of Registrable Securities (other than pursuant to a Demand Registration) (a
"Piggyback Registration"), the Company will give written notice to all Holders
of Registrable Securities of its intention to effect such a registration not
later than thirty (30) days prior to the anticipated filing date. Subject to the
provisions of Section 4.4, the Company will include in such Piggyback
Registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within fifteen (15) business
days after the receipt by the applicable Holder of the Company's notice. The
Holders shall be permitted to withdraw all or any part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of such Piggyback Registration. If a Piggyback Registration is an underwritten
offering, all Persons whose securities are included in the Piggyback
Registration shall be obligated to sell their securities on the terms and
conditions of the underwriting.
4.3. Piggyback Expenses. The Registration Expenses will be paid by the
Company in all Piggyback Registrations.
4.4. Priority on Registration. If a Piggyback Registration is an
underwritten primary registration, and the managing underwriters advise the
Company in writing that in their opinion the total number or dollar amount of
securities requested to be included in such registration exceeds the number or
dollar amount of securities which can be sold in such offering, the Company will
include in such registration in the following priority: (1) first, all
securities the Company proposes to sell; (2) second, up to the full number or
dollar amount of Registrable Securities requested to be included in such
registration in excess of the number or dollar amount of securities the Company
proposes to sell which, in the opinion of such underwriters, can be sold
(allocated pro rata among the Holders of such Registrable Securities on the
basis of the number of Registrable Securities the respective Holder is entitled
to have included in such registration or such other proportion as shall be
mutually agreed by all participating Holders) and (3) any Other Securities the
holders of which have been granted piggyback registration rights from the
Company.
4.5. Selection of Underwriters. If any Piggyback Registration is an
underwritten offering on behalf of the Company, the Company will have the right
to select the investment banker or investment bankers and manager or managers to
administer the offering, provided that such investment bankers and managers must
be representatives of a nationally recognized investment bank with experience
handling equity offerings in the insurance industry and be reasonably
satisfactory to the Holders of a majority of the Registrable Securities to be
registered in such Piggyback Registration.
-6-
5. REGISTRATION PROCEDURES.
In the case of each registration effected by the Company pursuant to
Sections 3 and 4, the Company will keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, the Company will use its best efforts to:
5.1. In the case of a registration subject to the Securities Act, prepare
and file with the Commission, not later than 75 days after receipt of a request
to file a registration statement with respect to such Registrable Securities, a
registration statement with respect to such Registrable Securities, and use its
best efforts to cause such registration statement to become effective; provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
Holders of a majority of the Registrable Securities being registered in such
registration statement copies of all such documents proposed to be filed; each
such registration statement shall be on a form for which the Company then
qualifies, which is available for the sale of the Registrable Securities in
accordance with the intended method of disposition thereof;
5.2. Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
5.3. Notify each seller of Registrable Securities covered by a registration
statement under the Securities Act at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
5.4. Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request;
5.5. Use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any holder of Registrable Securities included in the registration reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller; provided
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 5.5, (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction;
-7-
5.6. Cause all such Registrable Securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed;
5.7. Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereto and a CUSIP number for all such Registrable
Securities registered under the Securities Act, in each case not later than the
effective date of such registration;
5.8. Otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months, beginning with the first
month after the effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
5.9. Use its best efforts to prevent the issuance of any order suspending
the effectiveness of a registration statement and, if one is issued, promptly
notify the Holders of the issuance of any such order and use its best efforts to
obtain the withdrawal of any such order;
5.10. In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering;
5.11. Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 5.11, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities, and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities;
5.12. Make available to each selling Holder, any underwriter participating
in any disposition pursuant to a registration statement, and any attorney,
accountant or other agent or representative retained by any such selling Holder
or underwriter (each, an "Inspector"), upon request, all financial and other
records, pertinent corporate documents and properties of the Company as shall be
reasonably 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 such Inspector in connection
with such registration statement, subject, in each case, to such confidentiality
agreements as the Company shall reasonably request; and
5.13. Otherwise cooperate with the underwriter(s) and the Commission and
other regulatory agencies and take all reasonable actions and execute and
deliver or cause to be
-8-
executed and delivered all documents reasonably necessary to effect the
registration of the Registrable Securities pursuant to this Agreement.
6. INDEMNIFICATION.
6.1. Indemnification by Company. The Company will indemnify each Holder,
each of its officers, directors, and partners, legal counsel, and accountants
and each Person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification, or compliance
has been effected pursuant to Sections 3 and 4, and each underwriter, if any,
and each Person who controls within the meaning of Section 15 of the Securities
Act any underwriter, against all expenses, claims, losses, damages, and
liabilities (or actions, proceedings, or settlements in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular, or other document
(including any related registration statement, notification, or the like)
incident to any such registration, qualification, or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act, any rule or regulation
thereunder and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants and each Person controlling such Holder, each such
underwriter, and each Person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability, or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by such Holder or underwriter and stated to be specifically for use
therein. It is agreed that the indemnity agreement contained in this Section 6.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent has not been unreasonably withheld).
6.2. Indemnification by Holder of Registrable Securities. Each Holder will,
if Registrable Securities held by such Holder are included in the securities as
to which such registration, qualification, or compliance is being effected,
indemnify the Company, each of its directors, officers, partners, legal counsel,
and accountants and each underwriter, if any, of the Company's securities
covered by such a registration statement, each Person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act, each
other such Holder, and each of their officers, directors, and partners, and each
Person controlling such Holder, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular, or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such Holders, directors,
officers, partners, legal counsel, and accountants, Persons, underwriters, or
control Persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability, or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or
-9-
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein, provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld). The indemnification
obligations set forth in this Section 6.2 shall be limited for each indemnifying
holder to the amount of such Holder's net proceeds from the applicable public
offering.
6.3. Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under Sections 3 and 4, to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with defense of such claim and litigation resulting therefrom.
6.4. If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission to state a material fact relates
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
6.5. Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
-10-
7. OTHER AGREEMENTS.
7.1. Information by Holder. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in Sections 2 and 4.
7.2. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of
Registrable Securities to the public without registration, the Company agrees to
use its best efforts to:
(a) Make and keep public information regarding the Company available
as those terms are understood and defined in Rule 144 under the Securities Act,
at all times from and after ninety (90) days following the effective date of the
first registration under the Securities Act filed by the Company for an offering
of its securities to the general public;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements; and
(c) So long as a Holder owns any Registrable Securities, furnish to
the Holder forthwith upon written request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any time from
and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly accounts of the Company, and such other reports and
documents so filed as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
7.3. Transfer or Assignment of Registration Rights. The rights to cause the
Company to register securities granted to a Holder by the Company under Sections
3 and 4 may be transferred or assigned by a Holder (a) in the case of a
transferor who is a natural person, such Holder's spouse or domestic partner or
minor children, or a family investment vehicle controlled by such Holder or such
Holder's spouse or domestic partner, (b) in the case of a transferor that is an
entity, to an Affiliate, partner, member or shareholder of such transferor, or
an entity of which such partner, member or shareholder is or becomes a partner,
member or shareholder or (c) in the case of any transferor, to another Holder,
in each case to which such Holder transfers Registrable Securities, and (d) to
any other Person who acquires at least 2,500 Registrable Securities (as adjusted
for any stock split, recapitalization or other event affecting the total equity
capitalization of the Company), provided that the transaction in which such
Person received such Registrable Securities did not violate any agreement
binding upon the transferor of such Registrable Securities, and provided further
that the Company is given written notice at the time of or within a reasonable
time after said transfer or assignment, stating the name and address of the
transferee or assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned, and, provided further,
that the transferee or assignee of such rights assumes in writing the
obligations of such Holder hereunder.
-11-
7.4. Standoff Agreement. Each Holder agrees in connection with an IPO, upon
request of the Company or the underwriters managing such IPO, not to sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed
one-hundred-eighty (180) days) from the effective date of such registration as
may be requested by the Company and the underwriters; provided that (a) the
Founder, officers, directors, and holders of at least 5% of the Company's Common
Stock and other equity securities exercisable for or convertible into Common
Stock shall also enter into such an agreement, and (b) any waiver or relaxation
of any such restriction shall apply pro rata to all parties to such agreement.
8. MISCELLANEOUS.
8.1. No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof.
8.2. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York, as applied to agreements among New York residents
entered into and to be performed entirely within New York.
8.3. Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
8.4. Entire Agreement; Amendment; Waiver. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by the
Company and the Supermajority Holders and any such amendment, waiver, discharge
or termination shall be binding on all the Holders.
8.5. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, sent by facsimile or delivered personally by hand or nationally
recognized courier, addressed (a) if to a Holder, at such other address as such
Holder or permitted assignee shall have furnished to the Company in writing, or
(b) if to the Company, at such address or facsimile number as the Company shall
have furnished to each Holder in writing. All such notices and other written
communications shall be effective on the date of mailing, facsimile transfer or
delivery.
8.6. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any Holder or the Company, as the case may be, upon any
breach or default of the Company or any Holder, as the case may be, under this
Agreement, shall impair any such right, power or remedy of such Holder or the
Company, as the case may be, nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default therefore or
thereafter occurring. Any
-12-
waiver, permit, consent or approval of any kind or character on the part of the
Company or any Holder, as the case may be, of any breach or default under this
Agreement or any waiver on the part of any Holder or the Company, as the case
may be, of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any Holder or the Company, as the case may be, shall be cumulative
and not alternative.
8.7. Rights; Separability. Unless otherwise expressly provided herein, a
Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holders. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8.8. Titles and Subtitles. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing or interpreting this Agreement.
8.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Counterparts may be executed and delivered by
facsimile, provided that such delivery is promptly followed by the delivery of
hard copy of the same.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
THE COMPANY:
XXXXX RIVER GROUP, INC
By: /s/ J. Xxxx Xxxxx
------------------------------------
Name: J. Xxxx Xxxxx
Title: Chief Executive Officer
FOUNDER:
/s/ J. Xxxx Xxxxx
----------------------------------------
J. Xxxx Xxxxx
HOLDER:
/s/ Holders as set forth on Schedule I
----------------------------------------
Name:
Title (if signing for an entity):
-14-
SCHEDULE I
NAMES AND ADDRESSES OF HOLDERS
--------------------------------------------------------------------------------
207 VENTURES LLC
c/o Xxxxx Xxxx
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
ABRAM INVESTMENTS, LLC
c/o J. Xxxx Xxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
J. XXXX XXXXX
c/o Omega Management, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXX
c/o J. Xxxx Xxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
XXXX X. XXXXX
c/o Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxx, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
AC ISRAEL ENTERPRISES, INC.
000 Xxxxxxxxxxx Xxx.
Xxxxx Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxx, V.P.
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXXX GENERATION
SKIPPING TRUST
c/o Xxxxxxx X. Xxxxxxx
Roseridge Trading Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXXX
c/o Roseridge Trading Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
--------------------------------------------------------------------------------
XXXXXXX XXXXXXXX
c/o ACI Capital Co., Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
-15-
--------------------------------------------------------------------------------
XXXXXXXX ASSOCIATES III
c/o Xxxxxxx Xxxxxxxx
c/o The Sterling Group
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXXX
0000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXXX
c/o Compass Partners International, LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
COMPADRES INVESTMENTS, LLC
c/o Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
XXXXXX XXXXX XXX
Xxxxxx Xxxxx Xxxxx, Inc. Custodian
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
(c/o Xxxxxx Xxxxx
Xxxxx River Management, Inc.
0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000)
--------------------------------------------------------------------------------
XXXXXX XXXXX
XXXXX X. XXXXX, JOINT OWNERS
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXX X. XXXXX
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXXXXXX
x/x Xxxx Xxxxxxxxxx
Xxx 00000
Xxxxxx, XX 00000-0000
000-000-0000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX & Xxxxxx X.
XXXXXXX XX, JOINT OWNERS
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXX XXXXX
00000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
HASLEMERE PARTNERS, LP
c/o Xxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
XXXXXXXX FAMILY LP
c/o Xxxxxxx Xxxxxxxx
00 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
HRWCP I, LP
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
with copies to:
Wachovia Capital Partners 2003, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
XXX X. XXXXXXX
c/o Huffard & Co.
Two Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX
0000 Xxxxxxx Xxxxxx, Xxx. 000
Xxx Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
JRG SEVEN, LLC
c/o Xxxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
XXXXX X. XXX
00000 Xxxxxxxxxxx Xxxxx
X. Xxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXX
XXXXXXX X. XXXXX, JOINT OWNERS
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
XXXXXXX X. XXXXX
XXXXX X. XXXXX, JOINT OWNERS
0000 Xxxx Xxxx
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXX, XX.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
XXXXXXX XXXXXX, JR. XXX
Xxxxxx Xxxxx Xxxxx, Inc., Custodian
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
(0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000)
--------------------------------------------------------------------------------
XXXXXX X. XXXXXX
c/o RFE Investment Partners
000 Xxxxx Xxxxxx, Xxxxx - Xxxxx 000
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXX FAMILY TRUST
c/o Xxxxxx X. Xxxxxx
The Blue Hill Group
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXX
c/o The Blue Hill Group
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX, XX.
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX TRUST
c/o Xxxxxx X. Xxxxxxx III
Xxxxx & Xxxxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXX & MCLENNAN CAPITAL PROFESSIONALS FUND LP
c/o MMC Capital, Inc.
00 Xxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Attn: CFO
--------------------------------------------------------------------------------
XXXXX & XXXXXXXX EMPLOYEE SECURITIES
c/o MMC Capital, Inc.
00 Xxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Attn: CFO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXX XXXXX XXXXXX & Xxxxx X.
XXXXXX, JOINT OWNERS
0 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 000000
--------------------------------------------------------------------------------
MAYFAIR I, LLC
00000 Xxxxxxxxxx Xxxx # 000
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXXXXX
000 Xxxx Xxxxxxxx
Xxxx Xxxxx, XX 00000
000-000-0000
--------------------------------------------------------------------------------
W. XXXXXXX XXXXXXXX, XX.
000 Xxxxxx Xxxxxx Xxxxx
Xxx 0000
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
MLA PARTNERS, LLC
0000 Xxxxxx Xxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
--------------------------------------------------------------------------------
OA CAPITAL LLC
c/o Xxxxxx Xxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXXXXX X. XXXXXXXXX, XX.
0000 Xxxxxxxxxx Xxxxxx, Xxx. 0
Xxx Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. SILVER
000 Xxxx Xxxxxx, Xx.
Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXXXX & Xxxx X. Xxxxxxx,
JOINT OWNERS
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXXXXX XXXXX
c/o Xxxxx River Management, Inc.
0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX
c/o 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXXXXX XXXXXXXXXX
c/o Xxxxx Xxxxx
Xxxxxxxxxx Management, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
E. XXXXXXXX XXXXXX
c/o Xxxxx River Group, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
TRIDENT II, LP
c/o MMC Capital
00 Xxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
VCM SERIES A FUND LLC
c/o Xxxx Xxxxxxx
Virginia Capital Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
VIRGINIA CAPITAL SBIC LP
c/o Xxxx Xxxxxxx
Virginia Capital Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXX XXXXXXXXX XXX
000 Xx. Xxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or
c/x Xxxxx & Company
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXX
The Xxxxxx Group
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
XXXX X. XXXXX
c/o Omega Management, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
