EXHIBIT 4.4
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [__], 2004 (this
"Agreement"), by and among Calamos Asset Management, Inc., a Delaware
corporation ("CAM"), Calamos Family Partners, Inc., a Delaware corporation
("CFP"), and Xxxx X. Xxxxxxx.
WHEREAS, CFP is the beneficial owner of [__] shares of CAM's Class B
common stock, par value $0.01 per share (the "Class B Common Stock"), each of
which is exchangeable for one share of CAM's Class A common stock, par value
$0.01 per share (the "Class A Common Stock"), at the option of the holder
thereof;
WHEREAS, CFP is the beneficial owner of [__] membership units
("Membership Units") in Calamos Holdings LLC, a Delaware limited liability
company ("Holdings LLC"), each of which is exchangeable for one share of CAM's
Class A Common Stock, at the option of the holder thereof;
WHEREAS Xxxx X. Xxxxxxx is the beneficial owner of [__] shares of
CAM's Class B common stock, each of which is exchangeable for one share of CAM's
Class A common stock at the option of the holder thereof; and
WHEREAS Xxxx X. Xxxxxxx is the beneficial owner of [__] Membership
Units in Holdings LLC, each of which is exchangeable for one share of CAM's
Class A Common Stock, at the option of the holder thereof.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, CAM, CFP and Xxxx X. Xxxxxxx, for themselves, their successors,
and assigns, hereby agree as follows:
1. Definitions. As used in the Agreement, the terms below shall have
the following meanings (such meanings being equally applicable to both the
singular and plural form of the terms defined):
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such specified
Person.
"Agreement" shall have the meaning set forth in the preamble of this
Agreement.
"Blackout Period" shall have the meaning set forth in Section 4 of
this Agreement.
"Business Day" shall mean any day that is not a Saturday, a Sunday
or a day on which commercial banks are required or permitted by law to be closed
in the City of New York in the State of New York.
"CAM" shall have the meaning set forth in the preamble to this
Agreement.
"CFP" shall have the meaning set forth in the preamble of this
Agreement.
"Class A Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Class B Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Commission" shall mean the Securities and Exchange Commission, or
any successor thereto.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Demand for Registration" shall have the meaning set forth in
Section 2(d) of this Agreement.
"Demand Registration" shall have the meaning set forth in Section
2(a) of this Agreement.
"Demand Registration Statement" shall have the meaning set forth in
Section 2(a) of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
"Holder" shall mean CFP and Xxxx X. Xxxxxxx and any transferees of
CFP or Xxxx X. Xxxxxxx to whom Registrable Securities are permitted to be
transferred in accordance with the terms of this Agreement, and, in each case,
who continues to be entitled to the rights of a Holder hereunder.
"IPO" shall mean the initial public offering of the Class A Common
Stock pursuant to an offering registered under the Securities Act.
"Indemnified Party" shall have the meaning set forth in Section 8(d)
of this Agreement.
"Indemnifying Party" shall have the meaning set forth in Section
8(d) of this Agreement.
"Maximum Number of Securities" shall have the meaning set forth in
Section 2(b) of this Agreement.
"Membership Unit" shall have the meaning set forth in the recitals
of this Agreement.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor entity thereof.
"Participating Demand Holders" shall have the meaning set forth in
Section 2(a) of this Agreement.
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"Participating Piggy-Back Holders" shall have the meaning set forth
in Section 3(b) of this Agreement.
"Person" shall mean any individual, corporation, partnership, joint
venture, firm, trust, unincorporated organization, government or any agency or
political subdivision thereof or other entity.
"Piggy-Back Registration" shall have the meaning set forth in
Section 3(a) of this Agreement.
"Piggy-Back Registration Statement" shall have the meaning set forth
in Section 3(a) of this Agreement.
"Registrable Securities" shall mean shares of Class A Common Stock
issuable or issued upon conversion of shares of Class B Common Stock or in
exchange for Membership Units. For purposes of this Agreement, (i) Registrable
Securities shall cease to be Registrable Securities when a Registration
Statement covering such Registrable Securities has been declared effective under
the Securities Act by the Commission and such Registrable Securities have been
disposed of pursuant to such effective Registration Statement and (ii) the
Registrable Securities of a Holder shall not be deemed to be Registrable
Securities at any time when the entire amount of such Registrable Securities
proposed to be sold by such Holder in a single sale constitute less than 1% of
the then outstanding shares of Class A Common Stock or, in the opinion of
counsel satisfactory to CAM and such Holder, each in their reasonable judgment,
may be distributed to the public pursuant to Rule 144 (or any successor
provision then in effect) under the Securities Act in any three-month period or
any such Registrable Securities have been sold in a sale made pursuant to Rule
144 of the Securities Act.
"Registration Statement" shall mean the Demand Registration
Statement, the Piggy-Back Registration Statement and/or the Shelf Registration
Statement, as the case may be.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and all rules and regulations promulgated thereunder.
"Shelf Registration" shall have the meaning set forth in Section
2(c) of this Agreement.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2(c) of this Agreement.
2. Demand Registration.
(a) At any time commencing at least 365 days after the effective
date of any registration statement covering the IPO, after receipt of a written
request from a Holder requesting that CAM effect a registration (a "Demand
Registration") under the Securities Act covering all or part of the Registrable
Securities held by such Holder which specifies the intended method or methods of
disposition thereof, CAM shall promptly notify all Holders in writing of the
receipt of such request and each such Holder, in lieu of exercising its rights
under Section 3 hereof may elect (by written notice sent to the CAM within 10
Business Days from the
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date of such Holder's receipt of the aforementioned notice from CAM) to have all
or part of such Holder's Registrable Securities included in such registration
thereof pursuant to this Section 2, and such Holder shall specify in such notice
the number of Registrable Securities that such Holder elects to include in such
registration. Thereupon CAM shall, as expeditiously as is possible, but in any
event no later than 30 days (excluding any days which occur during a permitted
Blackout Period under Section 4 below) after receipt of a written request for a
Demand Registration, file with the Commission and use its commercially
reasonable efforts to cause to be declared effective, a registration statement
(a "Demand Registration Statement") relating to all shares of Registrable
Securities which CAM has been so requested to register by such Holders
("Participating Demand Holders") for sale, to the extent required to permit the
disposition (in accordance with the intended method or methods thereof, as
aforesaid) of the Registrable Securities so registered, provided, however, that
CAM shall not be required to file a Demand Registration Statement and otherwise
comply with the provisions of this Section 2 unless the aggregate number of the
Registrable Securities requested to be registered (i) constitute at least 5% of
the Registrable Securities issued and outstanding as of the date of this
Agreement or (ii) have an aggregate minimum market value of at least
US$85,000,000 based on the closing trading price of the Class A Common Stock on
the date the demand to file such Demand Registration Statement is made.
(b) If the majority of the Participating Demand Holders in a Demand
Registration relating to a public offering so request that the offering be
underwritten with a managing underwriter selected in the manner set forth in
Section 12 below and such managing underwriter of such Demand Registration
advises CAM in writing that, in its opinion, the number of securities to be
included in such offering is greater than the total number of securities which
can be sold therein without having a material adverse effect on the distribution
of such securities or otherwise having a material adverse effect on the
marketability thereof (the "Maximum Number of Securities"), then CAM shall
include in such Demand Registration the Registrable Securities that the
Participating Demand Holders have requested to be registered thereunder only to
the extent the number of such Registrable Securities does not exceed the Maximum
Number of Securities. If such amount exceeds the Maximum Number of Securities,
the number of Registrable Securities included in such Demand Registration shall
be allocated among all the Participating Demand Holders on a pro rata basis
(based on the number of Registrable Securities held by each Participating Demand
Holder). If the amount of such Registrable Securities does not exceed the
Maximum Number of Securities, CAM may include in such Registration any other
securities of CAM and other securities held by other security holders of CAM, as
CAM may in its discretion determine or be obligated to allow, in an amount which
together with the Registrable Securities included in such Demand Registration
shall not exceed the Maximum Number of Securities.
(c) Any Demand Registration Statement may be required by
Participating Demand Holders constituting a majority of the Registrable
Securities to be in an appropriate form under the Securities Act (a "Shelf
Registration Statement") relating to any or all of the Registrable Securities in
accordance with the methods and distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (the "Shelf Registration"). Any
such demand to file a Shelf Registration Statement shall require the use of two
Demand for Registration requests.
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(d) Holders shall be entitled to an aggregate of 15 registrations of
Registrable Securities pursuant to this Section 2 (each, a "Demand for
Registration"); provided, that a registration requested pursuant to this Section
2 shall not be deemed to have been effected for purposes of this Section 2(d)
unless (i) a Registration Statement relating thereto has been declared effective
by the Commission, (ii) it has remained effective for the period set forth in
Section 5(a), (iii) CAM shall have complied with the provisions of Sections
2(a), 2(b) and 2(c), without giving effect to the proviso in Section 2(a) and
(iv) the offering of Registrable Securities pursuant to such Registration
Statement is not subject to any stop order, injunction or other order or
requirement of the Commission (other than any such stop order, injunction, or
other requirement of the Commission prompted by act or omission of Holders of
Registrable Securities).
(e) Notwithstanding anything to the contrary contained herein, CAM
shall not be required to prepare and file more than two Demand Registration
Statements in any twelve-month period.
3. Piggy-Back Registration.
(a) If, at any time after the IPO, CAM proposes to file on its
behalf and/or on behalf of any holder of its securities (other than a holder of
Registrable Securities) a registration statement under the Securities Act on any
form (other than a registration statement on Form S-4 or S-8 or any successor
form for securities to be offered in a transaction of the type referred to in
Rule 145 under the Securities Act or to employees of CAM pursuant to any
employee benefit plan, respectively) for the registration of any of its equity
interests (a "Piggy-Back Registration"), it will give written notice to all
Holders at least 20 days before the initial filing with the Commission of such
piggy-back registration statement (a "Piggy-Back Registration Statement"), which
notice shall set forth the intended method of disposition of the securities
proposed to be registered by CAM. The notice shall offer to include in such
filing the aggregate number of shares of Registrable Securities as such Holders
may request, subject to the limits set forth in Section 3(c) below.
(b) Each Holder desiring to have Registrable Securities registered
under this Section 3 ("Participating Piggy-Back Holders") shall advise CAM in
writing within 10 days after the date of receipt of such offer from CAM, setting
forth the amount of such Registrable Securities for which registration is
requested. CAM shall thereupon include in such filing the number or amount of
Registrable Securities for which registration is so requested, subject to
paragraph (c) below, and shall use its commercially reasonable efforts to effect
registration of such Registrable Securities under the Securities Act.
(c) If the Piggy-Back Registration relates to an underwritten public
offering and the managing underwriter of such proposed public offering advises
in writing that, in its opinion, the amount of Registrable Securities requested
to be included in the Piggy-Back Registration in addition to the securities
being registered by CAM would be greater than the Maximum Number of Securities
(having the same meaning as defined in Section 2 but replacing the term "Demand
Registration" with "Piggy-Back Registration"), then:
(i) in the event CAM initiated the Piggy-Back Registration, CAM
shall include in such Piggy-Back Registration (A) the securities CAM
proposes to register and
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(B) the securities of all other selling security holders, including the
Participating Piggy-Back Holders, to be included in such Piggy-Back
Registration in an amount which together with the securities CAM proposes
to register, shall not exceed the Maximum Number of Securities, such
amount to be allocated among such selling security holders on a pro rata
basis (based on the number of securities of CAM held by each such selling
security holder);
(ii) in the event any holder of Securities of CAM initiated the
Piggy-Back Registration, CAM shall include in such Piggy-Back Registration
(A) the securities such initiating security holder proposes to register,
(B) the securities of any other selling security holders (including
Participating Piggy-Back Holders), in an amount which together with the
securities the initiating security holder proposes to register, shall not
exceed the Maximum Number of Securities, such amount to be allocated among
such other selling security holders on a pro rata basis (based on the
number of securities of CAM held by each such selling security holder) and
(C) any securities CAM proposes to register, in an amount which together
with the securities the initiating security holder and the other selling
security holders propose to register, shall not exceed the Maximum Number
of Securities;
4. Blackout Periods. CAM shall have the right to delay the filing or
effectiveness of a Registration Statement required pursuant to Sections 2 or 3
hereof during no more than two (2) periods aggregating to not more than 90 days
in any twelve-month period (a "Blackout Period") in the event that (i) CAM
would, in accordance with the advice of its counsel, be required to disclose in
the prospectus information not otherwise then required by law to be publicly
disclosed and (ii) in the judgment of CAM's Board of Directors, there is a
reasonable likelihood that such disclosure, or any other action to be taken in
connection with the prospectus, would materially and adversely affect or
interfere with any financing, acquisition, merger, disposition of assets (not in
the ordinary course of business), corporate reorganization or other similar
transaction in which CAM is engaged or in respect of which CAM proposes to
engage in discussions or negotiations with respect to, or has proposed or taken
a substantial step to commence, or there is an event or state of facts relating
to CAM which is material to CAM the disclosure of which would, in the reasonable
judgment of CAM be adverse to its interests; provided, however, that CAM shall
delay during such Blackout Period the filing or effectiveness of any
Registration Statement required pursuant to the registration rights of the
holders of any securities of CAM. CAM shall promptly give the Holders written
notice of such determination containing a general statement of the reasons for
such postponement and an approximation of the anticipated delay.
5. Registration Procedures. If CAM is required by the provisions of
Section 2 or 3 to use its commercially reasonable efforts to effect the
registration of any of its securities under the Securities Act, CAM will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such securities and use its commercially reasonable
efforts to cause such Registration Statement promptly to become and remain
effective for a period of time required for the disposition of such
Securities by the holders thereof but not to exceed 30 days (except with
respect to a Shelf Registration Statement which shall remain effective
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for a period not to exceed 180 days); provided, however, that before
filing such Registration Statement or any amendments thereto (for purposes
of this subsection, amendments shall not be deemed to include any filing
that CAM is required to make pursuant to the Exchange Act), CAM shall
furnish the representatives of the Holders referred to in Section 5(m)
copies of all documents proposed to be filed, which documents will be
subject to the review of such counsel. CAM shall not be deemed to have
used its commercially reasonable efforts to keep a Registration Statement
effective during the applicable period if it voluntarily takes any action
that would result in the Holders of such Registrable Securities not being
able to sell such Registrable Securities during that period, unless such
action is required under applicable law;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities
covered by such Registration Statement until the earlier of such time as
all of such securities have been disposed of in a public offering or the
expiration of 30 days (except with respect to the Shelf Registration
Statement, for which such period shall be 90 days);
(c) furnish to such selling security holders such number of
conformed copies of the applicable Registration Statement and each such
amendment and supplement thereto (including in each case all exhibits),
and of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents, as such selling security holders may reasonably
request;
(d) use its commercially reasonable efforts to register or qualify
the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions within the United States
and Puerto Rico as each Holder of such securities shall reasonably
request, to keep such registration or qualification in effect for so long
as such Registration Statement remains in effect, and to take any other
action which may be reasonably necessary to enable such seller to
consummate the disposition in such jurisdictions of the securities owned
by such Holder (provided, however, that CAM shall not be required in
connection therewith or as a condition thereto to qualify to do business,
subject itself to taxation in or to file a general consent to service of
process in any jurisdiction wherein it would not but for the requirements
of this paragraph (d) be obligated to do so; and provided, further, that
CAM shall not be required to qualify such Registrable Securities in any
jurisdiction in which the securities regulatory authority requires that
any Holder submit any shares of its Registrable Securities to the terms,
provisions and restrictions of any escrow, lockup or similar agreement(s)
for consent to sell Registrable Securities in such jurisdiction unless
such Holder agrees to do so), and do such other reasonable acts and things
as may be required of it to enable such Holder to consummate the
disposition in such jurisdiction of the securities covered by such
Registration Statement;
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(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2 or 3, if the method of
distribution is by means of an underwriting, on the date that the shares
of Registrable Securities are delivered to the underwriters for sale
pursuant to such registration, or if such Registrable Securities are not
being sold through underwriters, on the date that the registration
statement with respect to such shares of Registrable Securities becomes
effective, (i) a signed opinion, dated such date, of the independent legal
counsel representing CAM for the purpose of such registration, addressed
to the underwriters, if any, and if such Registrable Securities are not
being sold through underwriters, then to the Holders making such request,
as to such matters as such underwriters or the Holders holding a majority
of the Registrable Securities included in such registration, as the case
may be, may reasonably request and as would be customary in such a
transaction; and (ii) letters dated such date and the date the offering is
priced from the independent certified public accountants of CAM, addressed
to the underwriters, if any, and if such Registrable Securities are not
being sold through underwriters, then to the Holders making such request
and, if such accountants refuse to deliver such letters to such Holders,
then to CAM (A) stating that they are independent certified public
accountants within the meaning of the 1933 Act and that, in the opinion of
such accountants, the financial statements and other financial data of CAM
included in the Registration Statement or the prospectus, or any amendment
or supplement thereto, comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and (B) covering such
other financial matters (including information as to the period ending not
more than five Business Days prior to the date of such letters) with
respect to the registration in respect of which such letter is being given
as such underwriters or the Holders holding a majority of the Registrable
Securities included in such registration, as the case may be, may
reasonably request and as would be customary in such a transaction;
(f) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Registrable
Securities;
(g) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act generally available to the Holders no later than 45 days after the end
of any twelve-month period (or 90 days, if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in an underwritten public offering, or
(ii) if not sold to underwriters in such an offering, beginning with the
first month of CAM's first fiscal quarter commencing after the effective
date of the Registration Statement, which statements shall cover said
twelve-month periods;
(h) use its commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange or
quotation system on which similar securities issued by CAM are listed or
traded;
(i) give written notice to the Holders:
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(i) when such Registration Statement or any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to such Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by CAM or its legal counsel of any
notification with respect to the suspension of the qualification of
any security of CAM for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires CAM to make
changes in such Registration Statement or the prospectus in order to
make the statements therein not misleading (which notice shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made);
(j) use its commercially reasonable efforts to prevent the issuance
or obtain the withdrawal of any order suspending the effectiveness of such
Registration Statement at the earliest possible time;
(k) furnish to each Holder, without charge, at least one copy of
such Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those, if any, incorporated
by reference);
(l) upon the occurrence of any event contemplated by Section 5(i)(v)
above, promptly prepare a post-effective amendment to such Registration
Statement or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to the Holders, the
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If
CAM notifies the Holders in accordance with Section 5(i)(v) above to
suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Holders shall suspend use of such
prospectus and use their reasonable efforts to return to CAM all copies of
such prospectus (at CAM's expense) other than permanent file copies then
in such Holder's possession, and the period of effectiveness of such
Registration Statement provided for above shall be extended by the number
of days from and including the date of the giving of such notice to the
date Holders shall have received such amended or supplemented prospectus
pursuant to this Section 5(l);
(m) make reasonably available for inspection by the representatives
of the Holders, any underwriter participating in any disposition pursuant
to such Registration
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Statement and any attorney, accountant or other agent retained by such
representative or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of CAM and cause
CAM's officers, directors and employees to supply all relevant information
reasonably requested by such representative or any such underwriter,
attorney, accountant or agent in connection with the registration; and
(n) use reasonable efforts to procure the cooperation of CAM's
transfer agent in settling any offering or sale of Registrable Securities,
including with respect to the transfer of physical stock certificates into
book-entry form in accordance with any procedures reasonably requested by
the Holders or the underwriters.
It shall be a condition precedent to the obligation of CAM to take
any action pursuant to this Agreement in respect of the Securities which are to
be registered at the request of any Holder that such Holder shall furnish to CAM
such information regarding the Securities held by such Holder and the intended
method of disposition thereof as CAM shall reasonably request and as shall be
required in connection with the action taken by CAM.
6. Expenses. All expenses incurred in connection with each
registration pursuant to Sections 2 and 3 of this Agreement, excluding
underwriters' discounts and commissions, but including without limitation all
registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"comfort" letters required by or incident to such performance and compliance),
fees of the NASD or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for CAM, fees and expenses of CAM and the underwriters
relating to "road show" investor presentations, including the cost of any
aircraft chartered for such purpose, and the fees and disbursements of one
counsel for the selling Holders (which counsel shall be selected by the Holders
holding a majority in interest of the Registrable Securities being registered),
shall be paid by CAM, except that:
(a) all such expenses in connection with any amendment or supplement
to a Registration Statement or prospectus filed more than 30 (or in the
case of a Shelf Registration Statement, 90 days) days after the effective
date of such Registration Statement because any Holder has not effected
the disposition of the Securities requested to be registered shall be paid
by such Holder;
(b) The Holders shall bear and pay the (i) underwriting commissions
and discounts applicable to securities offered for their account in
connection with any registrations, filings and qualifications made
pursuant to this Agreement and (ii) any fees and expenses incurred in
respect of counsel or other advisors to the Holders.
7. Rule 144 and Rule 144A Information. (a) With a view to making
available the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of the Registrable Securities to the public
without registration, at all times after 90 days after any Registration
Statement covering securities of CAM shall have become effective, CAM agrees to:
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(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(ii) use its commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required of
CAM under the Securities Act and the Exchange Act; and
(iii) furnish to each Holder of Registrable Securities forthwith
upon request a written statement by CAM as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of CAM,
and such other reports and documents so filed by CAM as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any Registrable Securities without
registration.
(b) At all times during which CAM is neither subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, nor exempt
from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, it will
provide, upon the written request of any holder of Registrable Securities in
written form (as promptly as practicable and in any event within 15 Business
Days), to any prospective buyer of such stock designated by such holder, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the Commission under the Securities Act.
8. Indemnification and Contribution.
(a) CAM shall indemnify and hold harmless each Holder, such Holder's
directors and officers, if any, each person who participates in the offering of
such Registrable Securities, including underwriters (as defined in the
Securities Act), and each person, if any, who controls such Holder or
participating person within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof) arise out of
or are based on any untrue or alleged untrue statement of any material fact
contained in such Registration Statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
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
shall reimburse each such Holder, such Holder's directors and officers, such
participating person or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 8 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 CAM (which consent shall not be
unreasonably withheld); provided, further, that CAM shall not be liable to any
Holder, such Holder's directors and officers, participating person or
controlling person in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
connection with such Registration Statement, preliminary prospectus, final
prospectus or amendments or supplements
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thereto, in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder, such
Holder's directors and officers, participating person or controlling person;
provided, further, that CAM shall not be liable to any of Xxxx X. Xxxxxxx, Xxxx
X. Calamos or Xxxx X. Xxxxxxx, Xx., or any Person controlled by any such
individual (or such Person's directors and officers, participating person or
controlling person), hereunder in their capacity as a Holder so long as such
individual is a director or executive officer of CAM. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any such Holder, such Holder's directors and officers, participating
person or controlling person, and shall survive the transfer of such securities
by such Holder.
(b) Each Holder requesting or joining in a registration severally
and not jointly shall indemnify and hold harmless CAM, each of its directors and
officers, each person, if any, who controls CAM within the meaning of the
Securities Act, and each agent and any underwriter for CAM (within the meaning
of the Securities Act) against any losses, claims, damages or liabilities, joint
or several, to which CAM or any such director, officer, controlling person,
agent or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in such registration statement
on the effective date thereof (including any prospectus filed under Rule 424
under the Securities Act or any amendments or supplements thereto) or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by or on behalf of such Holder
expressly for use in connection with such registration; and each such Holder
shall reimburse any legal or other expenses reasonably incurred by CAM or any
such director, officer, controlling person, agent or underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 8(b) 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 such Holder (which consent shall not be unreasonably withheld), and
provided, further, that the liability of each Holder hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the net proceeds from the sale of the shares sold
by such Holder under such registration statement bears to the total net proceeds
from the sale of all securities sold thereunder, but not in any event to exceed
the net proceeds received by such Holder from the sale of Registrable Securities
covered by such registration statement.
(c) If the indemnification provided for in this Section 8 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or
12
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties 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, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. If the allocation
provided in this paragraph (c) is not permitted by applicable law, the parties
shall contribute based upon the relevant benefits received by CAM from the
initial offering of the Securities on the one hand and the net proceeds received
by the Holders from the sale of Securities on the other.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) 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 from any Person
who was not guilty of such fraudulent misrepresentation.
(d) 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, that the failure so to notify the Indemnified Party shall not relieve
the Indemnifying Party of any liability that it may have to the Indemnifying
Party hereunder unless such failure is materially prejudicial to the
Indemnifying Party. 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, 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, or (iii) the named parties to
any such action (including any impleaded parties) have been advised by such
counsel that either (A) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct or (B) there are one or more legal defenses
available to it which are substantially different from or additional to those
available to the Indemnifying Party. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent shall not
be unreasonably withheld.
(e) The agreements contained in this Section 8 shall survive the
transfer of the Registered Securities by any Holder and sale of all the
Registrable Securities pursuant to any registration statement and shall remain
in full force and effect, regardless of any investigation
13
made by or on behalf of any Holder or such director, officer or participating or
controlling Person.
9. Certain Additional Limitations on Registration Rights.
Notwithstanding the other provisions of this Agreement, CAM shall not be
obligated to register the Registrable Securities of any Holder (i) if such
Holder or any underwriter of such Registrable Securities shall fail to furnish
to CAM necessary information in respect of the distribution of such Registrable
Securities, or (ii) if such registration involves an underwritten offering, such
Registrable Securities are not included in such underwritten offering on the
same terms and conditions as shall be applicable to the other Securities being
sold through underwriters in the registration or such Holder fails to enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwritten offering. In addition, each Holder agrees not to
effect any public sale or distribution of any Registrable Securities or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act and
to enter into a customary lock-up agreement with the managing underwriter for an
offering, during the 90-day period beginning on the effective date of any Demand
Registration Statement (initiated by such Holder) or Piggy-Back Registration
Statement or other underwritten offering (initiated by CAM) (except as part of
such registration), and CAM agrees to use its commercially reasonable efforts to
cause its executive officers to enter into a lock-up agreement of the same term,
in each case if and to the extent requested by the managing underwriter for such
offering and if CAM and its directors, executive officers and other significant
stockholders enter into similar agreements.
10. Limitations on Registration of Other Securities; Representation.
From and after the date of this Agreement, CAM shall not, without the prior
written consent of a majority in interest of the Holders, enter into any
agreement with any holder or prospective holder of any securities of CAM giving
such holder or prospective holder any registration rights the terms of which are
as or more favorable taken as a whole than the registration rights granted to
the Holders hereunder unless CAM shall also give such rights to the Holders
hereunder.
11. No Inconsistent Agreements. CAM will not hereafter enter into
any agreement with respect to its securities, which is inconsistent in any
material respects with the rights granted to the Holders in this Agreement.
12. Selection of Managing Underwriters. In the event the
Participating Demand Holders have requested an underwritten offering, the
underwriter or underwriters shall be selected by CAM and shall be approved by
the Holders of a majority of the shares being so registered, which approval
shall not be unreasonably withheld or delayed, provided, (i) that all of the
representations and warranties by, and the other agreements on the part of, CAM
to and for the benefit of such underwriters shall also be made to and for the
benefit of such Holders of Registrable Securities, (ii) that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations of such
Holders of Registrable Securities, and (iii) that no Holder shall be required to
make any representations or warranties to or agreements with CAM or the
underwriters other than representations, warranties or agreements regarding such
Holder, the Registrable Securities of such Holder and such Holder's intended
method of distribution and any other representations required by law. Subject to
the foregoing, all Holders proposing to distribute Registrable
14
Securities through such underwritten offering shall enter into an underwriting
agreement in customary form with the underwriter or underwriters. Subject to the
provisions of Section 7(b), if any Holder of Registrable Securities disapproves
of the terms of the underwriting, such Holder may elect to withdraw all its
Registrable Securities by written notice to CAM, the managing underwriter and
the other Holders participating in such registration. The securities so
withdrawn shall also be withdrawn from registration.
13. Term of Registration Rights. The rights of Holders with respect
to the registration rights granted pursuant to this Agreement shall remain in
effect, subject to the terms hereof, so long as there are Registrable Securities
or securities which are convertible or exchangeable for Registrable Securities
issued and outstanding.
14. Miscellaneous.
(a) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of the Agreement was not performed
in accordance with the terms hereof and that the parties hereto shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
(b) Amendments and Waivers. (i) Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by CAM and a majority in interest of the
Holders or, in the case of a waiver, by the party or parties against whom the
waiver is to be effective; provided, however, that waiver by the Holders shall
require the consent of a majority in interest of the Holders.
(ii) No failure or delay by any party in exercising any right, power
or privilege hereunder (other than a failure or delay beyond a period of time
specified herein) shall operate as a waiver thereof and no single or partial
exercise thereof shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
(c) Notice Generally. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
courier service, by fax or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by notice given in
accordance with this Section 14(c):
(i) If to any Holder, at its last known address appearing on the
books of CAM maintained for such purpose.
(ii) If to CAM, to
Calamos Asset Management, Inc.
0000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
Facsimile:
15
with a copy to:
[Address]
Attention:
Facsimile:
or at such other address as may be substituted by notice given as herein
provided.
(d) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. The
registration rights of any Holder with respect to any Registrable Securities
shall be transferred to any Person who is the transferee of such Registrable
Securities. All of the obligations of CAM hereunder shall survive any such
transfer. Except as provided in Section 8, no Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement.
(e) Headings. The headings and subheadings in this Agreement are
included for convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
(f) Governing Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL.
(i) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
(ii) Any claim, 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 may be heard and
determined in any Illinois state or federal court sitting in Chicago,
Illinois, Xxxx County, and each of the parties hereto hereby consents to
the exclusive jurisdiction of such courts (and of the appropriate
appellate courts therefrom in any such claim, 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 venue of any
such claim, action, suit or proceeding in any such court or that any such
claim, action, suit or proceeding that is brought in any such court has
been brought in an inconvenient forum.
(iii) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF.
(g) Severability. If any term or other provision of this Agreement
is held to be invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions is not affected in any manner materially
adverse to any party. Upon a determination that any term or other provision is
invalid,
16
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
(h) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
(i) Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
(j) Construction. Each party hereto acknowledges and agrees it has
had the opportunity to draft, review and edit the language of this Agreement and
that no presumption for or against any party arising out of drafting all or any
part of this Agreement will be applied in any Dispute relating to, in connection
with or involving this Agreement. Accordingly, the parties hereto hereby waive
the benefit of any rule of Law or any legal decision that would require, in
cases of uncertainty, that the language of a contract should be interpreted most
strongly against the party who drafted such language.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
CALAMOS ASSET MANAGEMENT, INC.
By: ____________________________
Name:
Title:
CALAMOS FAMILY PARTNERS, INC.
By: ____________________________
Name:
Title:
________________________________
Xxxx X. Xxxxxxx
18
