Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of June 19,
2007 is entered into by and between BioFuel Energy Corp., a Delaware corporation
(the "COMPANY") and the holders of shares of Common Stock (as defined below) and
Units (as defined below) party to this Agreement (collectively, the
"INVESTORS").
A. Certain of the Investors are holders of shares of common stock of the
Company, par value $0.01 per share (the "COMMON STOCK");
B. The Company and certain of the Investors are beneficial owners of units
(the "UNITS") of BioFuel Energy, LLC, a Delaware limited liability company ("BFE
LLC"). Each holder of a Unit (other than the Company) may exchange any or all of
such holder's Units on a one-for-one basis for the same number of shares of
Common Stock, subject to the provisions of the LLC Agreement (defined below);
and
C. The Company desires to provide the Investors with registration rights
with respect to shares of Common Stock held by Investors and shares of Common
Stock underlying the Units held by Investors.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINED TERMS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement:
(a) "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.
(b) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
(c) "HOLDER" means a Person that (i) is a party to this Agreement (or a
permitted transferee under Section 2.11 hereof) and (ii) owns Registrable
Securities.
(d) "LLC AGREEMENT" means the BFE LLC Second Amended and Restated LLC
Agreement, dated June 19, 2007 among the Company and the members of BFE LLC.
(e) "NASD" means the National Association of Securities Dealers, Inc.
(f) "PARTICIPATING HOLDERS" means Holders participating, or electing to
participate, in an offering of Registrable Securities.
(g) "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.
(h) "REGISTRABLE SECURITIES" means shares of Common Stock held by Holders,
including shares of Common Stock deliverable or delivered in exchange for Units
pursuant to the LLC Agreement and the organizational documents of the Company;
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(k) (or successor rule) under the Securities Act.
(i) "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, NASD 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. "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).
(j) "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.
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(k) "SEC" means the United States Securities and Exchange Commission.
(l) "SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
(m) "SELLING EXPENSES" means the underwriting fees, discounts, selling
commissions and stock transfer taxes applicable to all Registrable Securities
registered by the Participating Holders.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 DEMAND REGISTRATION
(a) Request by Holders. If the Company receives at any time after the
earlier of (i) the first anniversary of the date hereof or (ii) the completion
by the Company of a merger, consolidation, sale, transfer, lease or other
conveyance of all or substantially all of the assets or any other similar
business combination or transaction with another company listed on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq Global Market, a
written request from Holders that hold at least thirty-five percent (35%) 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;
(ii) use its reasonable best efforts to have such Registration
Statement declared effective by the SEC as soon as practicable
thereafter; and
(iii) 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
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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.
(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.
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(e) Limitation on Demand Registrations. The Company shall only be obligated
to effect three (3) 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 the three (3) 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 or pursuant to a Registration Statement on Forms
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.
(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
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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.
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
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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.
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
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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;
(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;
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(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;
(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
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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;
(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,
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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;
(xv) Certificates; Closing. Provide officers' certificates and
other customary closing documents;
11
(xvi) NASD. 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 the NASD;
(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 NASD
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.
(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
12
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 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
13
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
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
14
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).
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
15
times from and after the date which is ninety (90) days following 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 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.
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
16
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. Some of the parties hereto have
entered into a Registration Rights Agreement, dated as of May 1, 2006 (the
"Existing LLC Registration Rights Agreement"), and such parties agree that all
obligations and rights under the Existing LLC Registration Rights Agreement are
hereby terminated and have lapsed.
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 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
17
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 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
18
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.
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
19
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.
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.
COMPANY BIOFUEL ENERGY CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: President & CEO
-----------------------------------
Signature page 1 to Registration Rights Agreement
BFE LLC: BIOFUEL ENERGY, LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: President & CEO
-----------------------------------
Signature page 2 to Registration Rights Agreement
INVESTORS: GREENLIGHT CAPITAL, L.P.
By: Greenlight Capital, LLC,
its general partner
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: Senior Managing Member
-----------------------------------
GREENLIGHT CAPITAL QUALIFIED, L.P.
By: Greenlight Capital, LLC,
its general partner
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: Senior Managing Member
-----------------------------------
GREENLIGHT CAPITAL OFFSHORE, LTD.
By: Greenlight Capital, Inc.,
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: President
-----------------------------------
GREENLIGHT REINSURANCE, LTD.
By: DME Advisors, LP,
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: Principal
-----------------------------------
Signature page 3 to Registration Rights Agreement
THIRD POINT PARTNERS LP
By: Third Point Advisors L.L.C.,
its general partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
THIRD POINT PARTNERS QUALIFIED, L.P.
By: Third Point Advisors L.L.C.,
its general partner
B y: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
/s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx
Signature page 4 to Registration Rights Agreement
BIOFUEL PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Manager
----------------------------------
CARGILL BIOFUELS INVESTMENTS, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Director - Cargill Biofuels
Investments, LLC
----------------------------------
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
ETHANOL BUSINESS GROUP, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Member
----------------------------------
/s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Signature page 5 to Registration Rights Agreement
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ JonAlan C. Page
-----------------------------------------
JonAlan C. Page
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------------
Irik P. Xxxxx
Xxxxxx Family Investments, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx, President of
-----------------------------------
Xxxxxx Operating Company, L.L.C.
-----------------------------------------
Title: General Partner
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
Xxxxx and Xxxx Xxxxxx Foundation
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: President
-----------------------------------
Signature page 6 to Registration Rights Agreement
/s/ Xxxxxxx X. Xxxxxxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxxxxx
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxxx
WCIOSAQ CORP.
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name: Xxx X. Xxxxxx
-----------------------------------
Title: Director
----------------------------------
/s/ Xxxxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx XxXxx
-----------------------------------------
Xxxxxxx XxXxx
Signature page 7 to Registration Rights Agreement