Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is dated as of April 4, 2022 (the “Effective Date”), by and between FreightCar America, Inc., a Delaware corporation (the “Company”), and OC III LVS XXVIII LP, a Delaware limited liability partnership (the “Investor”).
RECITALS
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as follows:
All capitalized terms used but not defined herein shall have the meanings ascribed to those terms in the Warrant Agreement. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:
“Agreement” has the meaning set forth in the Preamble.
“Business Day” is any day other than a day on which banks and other financial institutions are authorized or required to be closed for business in the State of New York.
“Closing” has the meaning set forth in the Recitals.
“Common Stock” has the meaning set forth in the Recitals.
“Company” has the meaning set forth in the Preamble.
“Demand Registration Notice” has the meaning set forth in Section 2.1.
“Demand Registration Statement” has the meaning set forth in Section 2.1.
“Effective Date” has the meaning set forth in the Preamble.
1
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“General Disclosure Package” has the meaning set forth in Section 6.1(a).
“Indemnified Party” has the meaning set forth in Section 6.3.
“Indemnifying Party” has the meaning set forth in Section 6.3.
“Initiating Investor” has the meaning set forth in Section 3.2.
“Investor” has the meaning set forth in the Preamble.
“Permitted Transferee” means, with respect to any Investor, any other person in which the Investor owns a majority of the equity interests or any other investment entity that is controlled, advised or managed by the same person or persons that control the Investor or is an affiliate of that person.
“Piggyback Registration Statement” has the meaning set forth in Section 3.1.
“Registrable Shares” means the Common Stock held by the Investor in the Company or any successor to the Company (including (x) any shares of Common Stock acquired prior to, on, or after the Effective Date, (y) any shares of Common Stock acquired upon the exercise of the Warrant, and (z) all of the shares of Common Stock issuable upon exercise of the Warrant (whether or not the Warrant has been exercised at the time the applicable Registration Statement is filed to register such Registrable Shares)), excluding any Common Stock that (a) has been disposed of pursuant to any offering or sale in accordance with a Registration Statement, or has been sold pursuant to Rule 144 or Rule 145 (or any successor provisions) under the Securities Act or in any other transaction in which the purchaser does not receive “restricted securities” (as that term is defined for purposes of Rule 144 under the Securities Act), (b) has been transferred to a transferee that has not agreed in writing and for the benefit of the Company to be bound by the terms and conditions of this Agreement or (c) has ceased to be of a class of securities of the Company that is listed and traded on a recognized national securities exchange or automated quotation system. For the avoidance of doubt, the Company and the Investor acknowledge and agree that the shares of Common Stock underlying the Warrant shall be deemed to be Registrable Shares for all purposes under this Agreement.
“Registration Expenses” means all expenses incurred in connection with the preparation, printing and distribution of any Registration Statement and Prospectus and all amendments and supplements thereto, and any and all expenses incident to the performance by the Company of its registration obligations pursuant to this Agreement, including: (a) all registration, qualification and filing fees; (b) all fees and expenses associated with a required listing of the Registrable Shares on any securities exchange or market; (c) fees and expenses with respect to filings required to be made with The Nasdaq Stock Market (or such other securities exchange or market on which the Shares are then listed or quoted) or FINRA; (d) fees and expenses of compliance with securities or “blue sky” laws; (e) fees and expenses related to registration in any non U.S. jurisdictions, as applicable;
2
(f) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including the expenses of any comfort letters, costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters, and expenses of any special audits incident to or required by any such registration); (g) all internal expenses of the Company (including all salaries and expenses of its officers and employees performing legal or accounting duties); (h) the fees and expenses of any person, including special experts, retained by the Company in connection with the preparation of any Registration Statement; and (i) the reasonable fees and disbursements of one legal counsel to represent the Investor.
“Registration Statement” and “Prospectus” mean, as applicable, any Demand Registration Statement and related prospectus (including any preliminary prospectus) and/or any Piggyback Registration Statement and related prospectus (including any preliminary prospectus), whichever is utilized by the Company to satisfy the Investor’s registration rights pursuant to this Agreement, including, in each case, any documents incorporated therein by reference.
“Rule 144” means Rule 144 under the Securities Act or any successor rule thereto.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Suspension Event” has the meaning set forth in Section 4.
“Warrant Agreement” has the meaning set forth in the recitals to this Agreement.
3
4
Notwithstanding the provisions of Section 2 or 3, the Company shall be entitled to postpone the effectiveness of a Registration Statement, and from time to time to require the Investor not to sell under such Registration Statement or to suspend the effectiveness thereof, if the negotiation or consummation of a significant transaction by the Company or its subsidiaries is pending or another event has occurred, in each case, which negotiation, consummation or event the Company reasonably believes would require additional disclosure by the Company in such Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in such Registration Statement would be expected, in the Company’s reasonable determination, to cause such Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend such Registration Statement on more than two (2) occasions or for more than thirty (30) consecutive calendar days, or more than one hundred twenty (120) total calendar days, during any twelve (12) month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that any Registration Statement is effective or, if as a result of a Suspension Event, such Registration Statement or related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the Prospectus) not misleading, the Investor agrees that it will immediately discontinue offers and sales of the Registrable Shares under the Registration Statement until the Investor receives copies of a supplemental or amended Prospectus (which the Company agrees to promptly prepare) that
5
corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales. If so directed by the Company, the Investor will deliver to the Company or, in the Investor’s sole discretion, destroy all copies of the Prospectus covering the Registrable Shares in the Investor’s possession.
6
7
8
9
10
11
provided, however, that the Investor shall only be liable under the indemnity provided pursuant to Section 6.2 with respect to any loss, liability, claim, damage, judgment or expense to the extent directly related to (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in strict conformity with the Investor Information, or (ii) the Investor’s failure to deliver an amended or supplemental Prospectus furnished to the Investor by the Company, if required by law to have been delivered by the Investor, if such loss, liability, claim, damage or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 6, the Investor and any of its Permitted Transferees shall not be required to indemnify the Company, its directors, officers or control persons for any amount in excess of the amount of the aggregate net cash proceeds received by the Investor or its Permitted Transferee, as the case may be, from sales of the Registrable Shares of the Investor (or Permitted Transferee) under the Registration Statement that is the subject of the indemnification claim.
12
13
The Company will pay all Registration Expenses in connection with each registration of Registrable Shares pursuant to Section 2 or 3. The Investor shall be responsible for the payment of all brokerage and sales commissions, fees and disbursements of the Investor’s counsel that are not Registration Expenses, accountants and other advisors, and any transfer taxes relating to the sale or disposition of the Registrable Shares by the Investor pursuant to any Registration Statement or otherwise.
With a view to making available to the Investor the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit an Investor to sell securities of the Company to the public without registration or pursuant to a registration statement, for so long as the Common Stock is registered under the Exchange Act, the Company agrees to:
14
15
16
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
FREIGHTCAR AMERICA, INC.
By: | /s/ Michael A. Riordan |
Name: | Michael A. Riordan |
Title | Vice President, Finance, Chief Financial Officer and Treasurer |
OC III LVS XXVIII LP
By: | /s/ Adam L. Gubner |
Name: | Adam L. Gubner |
Title | Authorized Person |