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Exhibit 10.5
CLASS A WARRANT
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated August 25, 1998, among GCA LTD., a
Bermuda corporation (the "Company"), and the Persons executing this Agreement as
Holders (such persons and their permitted successors and assigns, the
"Holders").
The Company has issued Class A Warrants to the Holders to
purchase the Company's Common Shares (the "Warrants"). Pursuant to the Warrants,
the Company has agreed to register such shares for sale under the Securities Act
of 1933, as amended.
NOW, THEREFORE, in consideration of the completion of the
transactions contemplated by the Warrants and of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows,
intending to be legally bound.
Section 1. Definitions. As used in this Agreement, the
following terms have the following meanings:
"Business Day": any day on which the Company's Common Shares
are available for trading on the principal stock exchange or market upon which
they are traded.
"Closing Date": the date on which is consummated the initial
public offering of the Common Shares pursuant to the Securities Act.
"Common Shares": the Company's Common Shares, par value
US$1.00 per share.
"Exchange Act": the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the relevant time.
"Holder": each Person (other than the Company) executing this
Agreement and each permitted successor or assignee of a Holder, for so long as
(and to the extent that) such Person owns or has the right to acquire any
Registrable Securities.
"Person": an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
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"Registrable Securities": (1) the Common Shares issued or
issuable pursuant to the Warrants and (2) any additional Common Shares or other
equity securities of the Company issued or issuable in respect of such Common
Shares (or other equity securities issued in respect thereof) by way of a stock
dividend or stock split, in connection with a combination, exchange,
reorganization, recapitalization or reclassification of Company securities, or
pursuant to a merger, division, consolidation or other similar business
transaction or combination involving the Company; provided that as to any
particular Registrable Securities, such securities shall cease to constitute
Registrable Securities (a) when a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of thereunder, (b) when such securities
shall have been disposed of pursuant to Rule 144 (or any successor provision to
such Rule) under the Securities Act, or (c) when such securities shall have
ceased to be outstanding.
"Registration Expenses": all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (a) the
fees, disbursements and expenses of the Company's counsel, accountants and
experts in connection with the registration under the Securities Act of
Registrable Securities; (b) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto, and the mailing and delivering of copies thereof to underwriters and
dealers, if any; (c) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements, and any other documents in connection with
the offering, sale or delivery of Registrable Securities to be disposed of; (d)
the fees and expenses incurred in connection with the listing of Registrable
Securities on each securities exchange on which Company securities of the same
class are then listed or with the Nasdaq National Market System; (e) the fees
and expenses, not to exceed $25,000, of a single counsel retained by any and all
Holders participating in a registration pursuant to this Agreement, (f) any
underwriters' discounts or compensation, brokers' commissions or similar selling
expenses attributable to the sale of Registrable Securities; (g) any SEC or blue
sky registration or filing fees attributable to Registrable Securities or
transfer taxes applicable to Registrable Securities, (h) any other expenses in
connection with the qualification of Registrable Securities for offer and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters in connection with such qualification and in connection with
any blue sky and legal investment surveys; and (i) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Registrable Securities to be disposed of.
"Registration Statement": a registration statement under the
Securities Act filed by the Company pursuant to this Agreement, including all
amendments thereto, all preliminary and final prospectuses included therein and
all exhibits thereto.
"SEC": the United States Securities and Exchange Commission,
or such other federal agency at the time having the principal responsibility for
administering the Securities Act.
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"Securities Act": the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Warrants": the Class A Warrants of the Company.
Section 2. Underwritten Demand Registration.
(a) At any time on or after the first anniversary of the
Closing Date, and before the tenth anniversary of the Closing Date the Holder or
Holders of ten (10) percent or more of the Registrable Securities issued or
issuable pursuant to the Warrants may (by written notice delivered to the
Company) require registration of all or any portion of such Registrable
Securities for sale in an underwritten public offering. In each such case, such
notice shall specify the number of Registrable Securities for which such
underwritten offering is to be made. Within ten Business Days after its receipt
of any such notice, the Company shall give written notice of such request to all
other Holders, and all such Holders shall have the right to have any or all
Registrable Securities owned by them included in the requested underwritten
offering as they shall specify in a written notice received by the Company
within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
proposed underwriting of (1) the aggregate number of Registrable Securities
proposed to be included by all Holders in the offering, and (2) the proposed
commencement date of the offering, which shall be a date not more than ninety
days after the Company gives such notice. The managing underwriter for such
offering shall be chosen by the Holders of a majority of the Registrable
Securities being included therein and shall be satisfactory to the Company.
(b) If any request for a registration shall have been made
pursuant to subsection (a), the Company shall, at the request of the managing
underwriter for such offering, prepare and file a Registration Statement with
the SEC as promptly as reasonably practicable, but in any event within sixty
days after the managing underwriter's request therefor.
(c) The Company shall not have any obligation to permit or
participate in more than two underwritten public offerings pursuant to this
Section, or to file a Registration Statement pursuant to this Section with
respect to less than ten (10) percent of the Registrable Securities issued or
issuable pursuant to the Warrants.
(d) The Company shall have the right to defer the filing or
effectiveness of a Registration Statement relating to any registration requested
under this Section for a reasonable period of time not to exceed 180 days if (1)
the Company is, at such time, working on an underwritten public offering of its
securities for the account of the Company and is advised by its managing
underwriter that such offering would in its opinion be materially adversely
affected by such filing; or (2) the Company in good faith determines that any
such filing or the offering of any Registrable Securities would (A) materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or (B) require the disclosure of material
non-public information, the disclosure of which would materially and adversely
affect the Company.
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(e) The Company shall have no obligation to file a
Registration Statement pursuant to this Section earlier than 360 days after the
effective date of a prior registration statement of the Company covering an
underwritten public offering for the account of the Company the effective date
of which is after the first anniversary of the Closing Date if (1) the Company
shall have offered pursuant to Section 4 to include the Holders' Registrable
Securities in such Registration Statement; (2) the Holders shall not have
elected to include in such Registration Statement at least ten (10) percent of
the Registrable Securities issued or issuable pursuant to the Warrants; and (3)
no Registrable Securities requested to be included in such registration
statement shall have been excluded therefrom pursuant to Section 4(c).
(f) The Holders of a majority of Registrable Securities
requested to be included in any offering pursuant to this Section may elect by
written notice to the Company not to proceed with the offering, in which case
the Company shall not be obligated to proceed with such offering. If they do so,
the Holders that shall have requested Registrable Securities to be included in
the offering shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(g) Neither the Company nor any other Person shall be entitled
to include any securities held by it in any underwritten offering pursuant to
this Section, unless all Registrable Securities for which inclusion has been
requested are also included.
(h) No registration of Registrable Securities under this
Section shall relieve the Company of its obligation to effect registrations of
Registrable Securities pursuant to Sections 3 and 4.
Section 3. Shelf Registrations.
(a) At any time on or after the first anniversary of the
Closing Date, and before the tenth anniversary of the Closing Date, and before
the tenth anniversary of the Closing Date, the Holder or Holders of five (5)
percent or more of the Registrable Securities issued or issuable pursuant to the
Warrants may (by written notice to the Company) require registration of all or
any portion of such Registrable Securities for sale in open market transactions
or negotiated block trades. Within ten Business Days after its receipt of such
notice, the Company shall give written notice of such request to all other
Holders, and all such Holders shall have the right to have any or all
Registrable Securities owned by them included in the requested registration as
they shall specify in a written notice received by the Company within ten
Business Days after the Company's notice is given. Within ten Business Days
after the expiration of such ten Business Day period, the Company shall notify
all Holders requesting inclusion of Registrable Securities in the requested
registration of the aggregate number of Registrable Securities proposed to be
included by all Holders in this registration.
(b) If any request for registration shall have been made
pursuant to subsection (a), the Company shall prepare and file a Registration
Statement with the SEC as
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promptly as reasonably practicable, but in any event within 45 days after the
expiration of the ten Business Day period within which Holders may request
inclusion in the registration.
(c) The Company shall have no obligation to file a
Registration Statement pursuant to this Section earlier than 180 days after the
effective date of any earlier Registration Statement filed pursuant to this
Section.
(d) The Holders of a majority of Registrable Securities
requested to be included in any registration pursuant to this Section may elect
by written notice to the Company not to proceed with such registration, in which
case the Company will not be obligated to proceed therewith. If they do so, the
Holders that shall have requested Registrable Securities to be included in the
registration shall pay all Registration Expenses incurred by the Company in
connection with such registration price to receipt of such notice.
(e) No registration of Registrable Securities under this
Section shall relieve the Company of its obligation to effect registrations of
Registrable Securities under Sections 2 and 4.
Section 4. Incidental Registration.
(a) From and after the first anniversary of the Closing Date,
and before the tenth anniversary of the Closing Date, if the Company proposes,
other than pursuant to Section 2 or 3, to file a Registration Statement under
the Securities Act to register any of its Common Shares for public sale under
the Securities Act (whether proposed to be offered for sale by the Company or by
any other Person), other than on Form S-4 or Form S-8 or any successor to such
forms promulgated by the SEC, it will give prompt written notice (which notice
shall specify the intended method or methods of disposition) to the Holders of
its intention to do so, and upon the written request of any Holder delivered to
the Company within ten Business Days after any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder), the Company will use commercially reasonable efforts to include in such
Registration Statement all Registrable Securities which the Company has been so
requested to register by Holders.
(b) If at any time prior to the effective date of any
Registration Statement described in subsection (a), the Company shall determine
for any reason not to proceed with such registration, the Company may, at its
election, give written notice of such determination to the Holders requesting
registration and thereupon the Company shall be relieved of its obligation to
register such Registrable Securities in connection with such registration.
(c) The Company will not be required to effect any
registration of Registrable Securities pursuant to this Section in connection
with an offering of securities solely for the account of the Company if the
Company shall have been advised in writing (with a copy to the Holders
requesting registration) by a nationally recognized investment banking firm
(which may be the managing underwriter for the offering) selected by the Company
that, in such firm's opinion, registration of Registrable Securities and of any
other securities requested to be
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included in such registration by Persons having rights to include securities
therein at that time may interfere with an orderly sale and distribution of the
securities being sold by the Company in such offering or adversely affect the
price of such securities; but if an offering of less than all of the Registrable
Securities requested to be registered by the Holders and other securities
requested to be included in such registration by such other Persons would not,
in the opinion of such firm, adversely affect the distribution or price of the
securities to be sold by the Company in the offering, the aggregate number of
Registrable Securities requested to be included in such offering by the Holders
shall be reduced pro rata in accordance with the proportion that the number of
shares proposed to be included in such registration by each of the Holders bears
to the number of shares proposed to be included in such registration by Holders
and all other such Persons.
(d) The Company shall not be required to give notice of, or
effect any registration of Registrable Securities under this Section incidental
to, the registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit or compensation
plans.
(e) No registration of Registrable Securities effected under
this Section shall relieve the Company of its obligations to effect
registrations of Registrable Securities pursuant to Sections 2 and 3.
Section 5. Holdbacks and Other Transfer Restrictions.
(a) No Holder shall, if requested by the managing underwriter
in an underwritten offering: (1) that includes such Holder's Registrable
Securities, effect any public sale or distribution of securities of the Company
of the same class as the securities included in such Registration Statement (or
convertible into such class), including a sale pursuant to Rule 144(k) under the
Securities Act (except as part of such underwritten registration) during the ten
day period prior to, and during the 180-day period beginning on the closing date
of each underwritten offering made pursuant to such registration statement, to
the extent timely notified in writing by the Company or the managing
underwriter; and (2) in the event of an offering for the account of the Company,
to the extent such Holder does not elect (or is not permitted under Section
4(c)) to sell such securities in connection with such offering, during the
period of distribution of the Company's securities in such offering and during
the period in which the underwriting syndicate, if any, participates in the
aftermarket. In any such case the Company shall require the managing underwriter
to notify the Company and the Company, in turn, shall notify all Holders of
Registrable Securities included in the offering promptly after such
participation ceases. If the Company or such managing underwriter so requests,
each Holder shall enter into an agreement reflecting such restrictions.
(b) No Holder shall, during any period in which any of its
Registrable Securities are included in any effective Registration Statement, (1)
effect any stabilization transactions or engage in any stabilization activity in
connection with the Common Shares or other equity securities of the Company in
contravention of Regulation M under the Exchange
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Act; (2) permit any Affiliated Purchaser (as that term is defined in Rule 100(b)
of Regulation M under the Exchange Act) to bid for or purchase for any account
in which such Holder has a beneficial interest, or attempt to induce any other
person to purchase, any shares of Common Stock or Registrable Securities in
contravention of Regulation M under the Exchange Act; or (3) offer or agree to
pay, directly or indirectly, to anyone any compensation for soliciting another
to purchase, or for purchasing (other than for such Holder's own account), any
securities of the Company on a national securities exchange in contravention of
Regulation M under the Exchange Act.
(c) Each Holder shall, in the case of a registration including
Registrable Securities to be offered by it for sale through brokers
transactions, furnish each broker through whom such Holder offers Registrable
Securities such number of copies of the prospectus as the broker may require and
otherwise comply with the prospectus delivery requirements under the Securities
Act.
Section 6. Registration Procedures. If and whenever the
Company is required by the provisions of this Agreement to effect a registration
of Registrable Securities:
(a) The Company will use commercially reasonable efforts to
prepare and file with the SEC, within the time periods specified herein, a
Registration Statement on Form S-3 or its equivalent (or on such other
registration form available to the Company that permits the greatest extent of
incorporation by reference of materials filed by the Company, under the Exchange
Act), and will use commercially reasonable efforts to cause such registration
statement to become effective as promptly as practicable thereafter and to
remain effective under the Securities Act until (1) the earlier of such time as
all securities covered thereby have been disposed of pursuant to such
Registration Statement or 180 days after such Registration Statement becomes
effective, in the case of registrations pursuant to Section 2, or (2) 90 days
after such Registration Statement becomes effective, in the case of
registrations pursuant to Section 3, in every case as any such period may be
extended pursuant to subsection (h) or Section 8.
(b) The Company will prepare and file with the SEC such
amendments, post-effective amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective for such period of time required by
subsection (a), as such period may be extended pursuant to subsection (h) or
Section 8.
(c) The Company will comply in all material respects with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the period during which
any such Registration Statement is required to be effective.
(d) The Company will furnish to any Holder and any underwriter
of Registrable Securities (1) such number of copies (including manually executed
and conformed
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copies) of such Registration Statement and of each amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(2) such number of copies of the prospectus used in connection with such
Registration Statement (including each preliminary prospectus, any summary
prospectus and the final prospectus and including prospectus supplements), and
(3) such number of copies of other documents, in each case as such Holder or
such underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to
register or qualify all Registrable Securities covered by such Registration
Statement under the securities or "blue sky" laws of states of the United States
and any other jurisdiction as any Holder or any underwriter shall reasonably
request, and do any and all other acts and things which may be reasonably
requested by such Holder or such underwriter to consummate the offering and
disposition of Registrable Securities in such jurisdictions; but the Company
shall not be required to qualify generally to do business as a foreign
corporation or as a dealer in securities, subject itself to taxation, or consent
to general service of process in any jurisdiction wherein it is not then so
qualified or subject.
(f) The Company will use, as soon as practicable after the
effectiveness of the Registration Statement, commercially reasonable efforts to
cause the Registrable Securities covered by such Registration Statement to be
registered with, or approved by, such other United States and Bermuda public,
governmental or regulatory authorities, if any, as may be required in connection
with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to
list the Registrable Securities covered by such Registration Statement on any
securities exchange (or if applicable, the Nasdaq National Market System) on
which any securities of the Company are then listed, if the listing of such
Registrable Securities is then permitted under the applicable rules of such
exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as
practicable and, if requested by any Holder, confirm such notification in
writing, (1) when a prospectus or any prospectus supplement has been filed with
the SEC, and when a Registration Statement or any post-effective amendment
thereto has been filed with and declared effective by the SEC, (2) of the
issuance by the SEC of any stop order or the coming to its knowledge of the
initiation of any proceedings for that purpose, (3) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (4) of the
occurrence of any event which requires the making of any changes to a
Registration Statement or related prospectus so that such documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
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therein, in light of the circumstances under which they were made, not
misleading (and the Company shall promptly prepare and furnish to each Holder a
reasonable number of copies of a supplemented or amended prospectus such that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading), and (5) of the Company's determination that the filing of a
post-effective amendment to a Registration Statement shall be necessary or
appropriate. Upon the receipt of any notice from the Company of the occurrence
of any event of the kind described in clause (4), the Holders shall forthwith
discontinue any offer and disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until all Holders
shall have received copies of a supplemented or amended prospectus which is no
longer defective and, if so directed by the Company, shall deliver to the
Company all copies (other than permanent file copies) of the defective
prospectus covering such Registrable Securities which are then in the Holders'
possession. If the Company shall provide any notice of the type referred to in
the preceding sentence, the period during which the Registration Statement is
required by subsection (a) to be effective shall be extended by the number of
days from and including the date such notice is provided, to and including the
date when Holders shall have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such
other appropriate actions as are customary and reasonably necessary to expedite
or facilitate the disposition of such Registrable Securities, and in that
regard, will deliver to the Holders such documents and certificates as may be
reasonably requested by the Holders of a majority of the Registrable Securities
being sold or, as applicable, the managing underwriters, to evidence the
Company's compliance with this Agreement, including, in the case of any
underwritten offering, using commercially reasonable efforts to cause its
independent accountants to deliver to the managing underwriters an accountants'
comfort letter substantially similar to that in scope delivered in an
underwritten public offering and covering audited and interim financial
statements included in the registration statement, or if such letter can not be
obtained through the exercise of commercially reasonable efforts, cause its
independent accountants to deliver to the managing underwriters a comfort letter
based on negotiated procedures providing comfort with respect to the Company's
financial statements included or incorporated by reference in the registration
statement at the highest level permitted to be given by such accountants under
the then applicable standards of the American Institute of Certified Public
Accountants with respect to such Registration Statement.
Section 7. Underwriting.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration under Section 2,
the Company will enter into and perform its obligations under an underwriting
agreement with the underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' comfort letters. If Registrable Securities are to be
distributed by such underwriters on behalf of any Holder, such Holder shall also
be a party to any such underwriting agreement.
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(b) If any registration pursuant to Section 4 shall involve an
underwritten offering, the Company may require Registrable Securities requested
to be registered pursuant to Section 4 to be included in such underwriting on
the same terms and conditions as shall be applicable to the securities being
sold through underwriters under such registration. In such case, each Holder
requesting registration shall be a party to any such underwriting agreement.
Such agreement shall contain such representations and warranties by the Holders
requesting registration and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, provisions relating to indemnities and
contribution.
(c) In any offering of Registrable Securities pursuant to a
registration hereunder, each Holder requesting registration shall also enter
into such additional or other agreements as may be customary in such
transactions, which agreements may contain, among other provisions, such
representations and warranties as the Company or the underwriters of such
offering may reasonably request (including, without limitation, those concerning
such Holder, its Registrable Securities, such Holder's intended plan of
distribution and any other information supplied by it to the Company for use in
such registration statement), and customary provisions relating to indemnities
and contribution.
Section 8. Information Blackout.
(a) At any time when a Registration Statement is effective,
upon written notice from the Company to the Holders that the Company has
determined in good faith that sale of Registrable Securities pursuant to the
Registration Statement would require disclosure of non-public material
information, the disclosure of which would have a material adverse effect on the
Company, all Holders shall suspend sales of Registrable Securities pursuant to
such Registration Statement until the earlier of (1) 120 days after the Company
notifies the Holders of such good faith determination, and (2) such time as the
Company notifies the Holders that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to such
Registration Statement may otherwise be resumed (the number of days from such
suspension of sales by the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "Sales Blackout Period").
(b) The time period set forth in Section 6(a)(1) or (2) shall
be extended for a number of days equal to the number of days in the Sales
Blackout Period.
Section 9. Rule 144. The Company shall take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) under the Securities Act so as to enable the Holders to sell
Registrable Securities without registration under the Securities Act. Upon the
written request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with the filing requirements under such
Rule 144(c)(1).
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Section 10. Preparation; Reasonable Investigation;
Information. In connection with the preparation and filing of each Registration
Statement registering Registrable Securities under the Securities Act, (a) the
Company will give the Holders and the underwriters, if any, and their respective
counsel and accountants, drafts of such registration statement for their review
and comment prior to filing and (during normal business hours and subject to
such reasonable limitations as the Company may impose to prevent disruption of
its business) such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the reasonable opinion of the Holders of a majority of
the Registrable Securities being registered and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act and (b) as a condition precedent to including any Registrable
Securities of any Holder in any such registration, the Company may require such
Holder to furnish the Company such information regarding such Holder and the
distribution of such securities as the Company may from time to time reasonably
request in writing or as shall be required by law or the SEC in connection with
any registration.
Section 11. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company shall indemnify and hold harmless
each Holder, its officers and directors, each underwriter of Registrable
Securities so offered and each Person, if any, who controls any of the foregoing
persons within the meaning of the Securities Act ("Holder Indemnitees"), from
and against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become subject,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for any
legal or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as such losses, claims, damages,
liabilities or actions shall arise out of, or shall be based upon, any violation
or alleged violation by the Company of the Securities Act, any blue sky laws,
securities laws or other applicable laws of any state or country in which the
Registrable Securities are offered, and relating to action taken or action or
inaction required of the Company in connection with such offering, or shall
arise out of, or shall be based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in any
preliminary or final prospectus included therein) relating to the offering and
sale of such Registrable Securities, or any amendment thereof or supplement
thereto, or in any document incorporated by reference therein, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; but the
Company shall not be liable to any Holder Indemnitee in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement, or any omission
or alleged omission, if such statement or omission shall have been made in
reliance upon and in conformity with information furnished to the Company in
writing by or on behalf of such Holder specifically for use in the preparation
of the Registration Statement (or in any preliminary or final prospectus
included therein), or any amendment thereof
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or supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder and shall
survive the transfer of such securities. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any Holder
Indemnitee.
(b) In the case of each offering of Registrable Securities
made pursuant to this Agreement, each Holder shall indemnify and hold harmless
the Company, its officers and directors and each person, if any, who controls
any of the foregoing within the meaning of the Securities Act (the "Company
Indemnitees"), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, including any amount paid in settlement of any litigation
commenced or threatened, and shall promptly reimburse them, as and when
incurred, for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any violation by such Holder of the Securities Act, any blue sky laws,
securities laws or other applicable laws of any state or country in which the
Registrable Securities are offered and relating to action taken or action or
inaction required of such Holder in connection with such offering, or shall
arise out of, or shall be based upon, any untrue statement of a material fact
contained in the Registration Statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities or any amendment thereof or supplement thereto, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that such untrue statement is contained in, or such fact is
omitted from, information furnished in writing to the Company by or on behalf of
such Holder specifically for use in the preparation of such Registration
Statement (or in any preliminary or final prospectus included therein). Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Company Indemnitee. In no event shall the liability
of a Holder hereunder be greater in amount than the dollar amount of the net
proceeds received by it upon the sale of Registrable Securities pursuant to such
offering. The foregoing indemnity is in addition to any liability which Holder
may otherwise have to any Company Indemnitee.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 11, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, but the failure
to give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
and shall pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and
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expenses of the counsel retained by the indemnified party in the event (1) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (2) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Holders of a majority of the
Registrable Securities disposed under the applicable Registration Statements in
the case of Holder Indemnitees and by the Company in the case of Company
Indemnitees. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgement for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, or if the
indemnified party failed to give the notice required under subsection (c), then
each indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect not only both the relative benefits received by such party (as
compared to the benefits received by all other parties) from the offering in
respect of which indemnity is sought, but also the relative fault of all parties
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by a party shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by it bear
to the total amounts received by each other party. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would not be just
and equitable if contributions pursuant to this subsection (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 above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), 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.
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14
(e) The indemnity provided for hereunder shall not inure to
the benefit of any indemnified party to the extent that such indemnified party
failed to comply with the applicable prospectus delivery requirements of the
Securities Act as then applicable to the person asserting the loss, claim,
damage or liability for which indemnity is sought.
Section 12. Expenses. In connection with any registration
under this Agreement, the Company shall pay, subject to and to the extent
permitted by the Bermuda Companies Xxx 0000, all Registration Expenses (to the
extent not borne by underwriters or others), except as provided in Section 2(f)
or 3(d), and except that each Holder requesting registration of its Registrable
Securities shall pay its pro rata share of the items described in clause (i) of
the definition of "Registration Expenses" in Section 1.
Section 13. Notices. Except as otherwise provided below,
whenever it is provided in this Agreement that any notice, demand, request,
consent, approval, declaration or other communication shall or may be given to
or served upon any of the parties hereto, or whenever any of the parties hereto,
wishes to provide to or serve upon the other party any other communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be delivered in
person or sent by telecopy, as follows: (a) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 13, which address initially is,
with respect to the Holders who have executed this agreement, the addresses set
forth in Schedule A and with respect to all other holders is as set forth in the
register for the Registrable Securities; and (b) if to the Company, initially at
the Company's principal address and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 13. The
furnishing of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Every notice, demand, request, consent,
approval, declaration or other communication hereunder shall be deemed to have
been duly furnished or served on the party to which it is addressed, in the case
of delivery in person or by telecopy, on the date when sent (with receipt
personally acknowledged in the case of telecopied notice), and in all other
cases, five business days after it is sent. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.
Section 14. Entire Agreement. This Agreement represents the
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior oral and written
agreements, arrangements and understandings among the parties hereto with
respect to such subject matter; and this Agreement can be amended, supplemented
or changed, and any provision hereof can be waived or a departure from any
provision hereof can be consented to, only by a written instrument making
specific reference to this Agreement signed by the Company and the Holders of a
majority of the Registrable Securities then outstanding, but if by less than all
Holders, then only to the extent such
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15
amendment, supplement or change does not adversely affect the rights of any
Holder which is not a party thereto.
Section 15. Headings. The section headings contained in this
Agreement are for general reference purposes only and shall not affect in any
manner the meaning, interpretation or construction of the terms or other
provisions of this Agreement.
Section 16. Applicable Law. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of New York
applicable to contracts to be made, executed, delivered and performed wholly
within such state and, in any case, without regard to the conflicts of law
principles of such state.
Section 17. Severability. If any provision of this Agreement
shall be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
Section 18. No Waiver. The failure of any party at any time or
times to require performance of any provision hereof shall not affect the right
at a later time to enforce the same. No waiver by any party of any condition,
and no breach of any provision, term, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be construed as a further or continuing waiver of
any such condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 19. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same original instrument. Not
all parties need sign the same counterpart. Delivery by facsimile of a signature
page to this Agreement shall have the same effect or delivery of an original
executed counterpart.
Section 20. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; but nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of applicable law. If any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Holder
shall be conclusively deemed to have agreed to be bound by
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16
and to perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement, and such Holder shall be
entitled to receive the benefits hereof.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first above written.
GCA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx,
Chief Executive Officer
HOLDERS
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------------
American Capital Access Holdings, L.L.C.
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Inter-Atlantic Capital Partners, Inc.
/s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxx, Xx.
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