Exhibit 4.4
INVESTOR RIGHTS AGREEMENT
Dated as of July 12, 2006
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among
Viceroy Acquisition Corporation,
CRT Capital Group LLC
and
KBC Peel Hunt Ltd.
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is made
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and entered into as of July __, 2006 by and among Viceroy Acquisition
Corporation, a Delaware corporation (the "Company"), and CRT Capital Group,
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LLC ("CRT") and KBC Peel Hunt Ltd. ("KBC, and collectively, with CRT, the
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"Placing Agents"), for the benefit of the holders (the "Holders") of the
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Company's common stock, par value $.0001 per share (the "Common Shares") and
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warrants (the "Warrants"), each Warrant being exercisable for the purchase
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of one Common Share, issued in the placing of Units (as described below).
Reference is made to the Company's Offering Circular,
dated June 29, 2006 (the "Offering Circular"), relating to the offer and
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sale of 22,500,000 units (the "Units"), each Unit consisting of one Common
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Share and one Warrant (the "Offering"). For the benefit of the Holders and
in consideration of the Placing Agents entering into a placing agreement
with the Company for the placing of the Units, the Company has agreed to
provide the investor rights set forth in this Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Commission: The United States Securities and Exchange
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Commission, or any other federal agency then administering the Securities
Act and/or the Exchange Act.
Exchange Act: The Securities Exchange Act of 1934, as
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amended and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the applicable time.
Exchange Act Liquidated Damages: As defined in Section 4(a)
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hereof.
Exchange Act Registration Default: As defined in Section 4(a)
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hereof.
Exchange Act Registration Statement: A registration
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statement of the Company on Form 10 (or such other form which it is
appropriate to use to register the Common Shares under the Exchange Act),
including all amendments and supplements thereto and all exhibits and material
incorporated by reference therein.
Exchange Act Registration Trigger: The date of consummation
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of a Qualified Business Combination or, alternatively, in the case where no
Qualified Business Combination shall have occurred but a business combination
shall have been completed and the balance of the funds in the trust fund have
been distributed to the new shareholders, the date of such distribution.
Founding Shareholders' Registration Rights Agreement: The
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Registration Rights Agreement, dated on or about the date hereof between the
Company and certain holders of the Company's common stock held prior to the
Offering.
NASD: National Association of Securities Dealers, Inc.
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Offering: The offering of the Units pursuant to the
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Offering Circular.
Person: An individual, partnership, corporation, limited
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liability company, unincorporated organization, association, joint-stock
company, trust, joint venture, government or any agency or political
subdivision thereof or any other entity.
Placing Agreement: The placing agreement among the Company,
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CRT, KBC and the Company's directors dated on or about the date of this
Agreement.
Qualified Business Combination: A business combination with
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a target business or businesses which, either by itself or when combined with
the Company's previous business combinations, has an aggregate transaction
value of at least 50% of the amount placed into trust in connection with the
Offering (as more fully described in the Offering Circular).
Securities Act: The U.S. Securities Act of 1933, as amended,
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and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the applicable time.
SECTION 2. EXCHANGE ACT REGISTRATION AND LISTING
(a) The Company shall (i) no later than the date that is
one hundred eighty (180) days following the Exchange Act Registration
Trigger cause to be filed with the Commission an Exchange Act Registration
Statement, and (ii) use its commercially reasonable efforts to cause such
Exchange Act Registration Statement to be declared effective on or prior to
the date that is two hundred seventy (270) days following the Exchange Act
Registration Trigger.
(b) As promptly as practicable after the Exchange Act
Registration Statement shall have been declared effective, the Company shall
use its commercially reasonable efforts to cause the Common Shares to be
authorized to be quoted and/or listed (to the extent applicable) on the
American Stock Exchange, the New York Stock Exchange, the NASD. Automated
Quotation System or the NASDAQ National Market (or, in each case, a
successor thereto) or a similarly recognized national trading platform, if
the Common Shares so qualify.
SECTION 3. "PIGGYBACK" REGISTRATIONS
(a) If at any time the Company shall propose to register
under the Securities Act (other than pursuant to Section 2 of this
Agreement) any of its Common Shares for the account of its Founding
Shareholders (as defined in the Offering Circular), it will promptly give
written notice to all Holders of Common Shares that are (i) Holders of
Common Shares bearing a restrictive legend that are not freely saleable in
the United States under Rule 144(k) of the Securities Act, and (ii) that are
known by the Company to be affiliates of the Company (other than officers
and directors of the Company) (such Common Shares hereinafter referred to as
"Registrable Shares") of its intention so to do. Upon the written request of
any such Holder, received by the Company within 20 days after the giving of
any such notice by the Company, to register any or all of its Registrable
Shares, the Company will use its reasonable best efforts to cause the
Registrable Shares as to which registration shall have been so requested to
be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to
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permit the sale or other disposition by the Holder (in accordance with its
written request) of such Registrable Shares so registered.
(b) If the registration of which the Company gives notice
as provided above is for a registered public offering involving an
underwriting, the Company shall so advise the Holders of Registrable Shares
as a part of the written notice given pursuant to this Section 3. In such
event, the right of any Holder of Registrable Shares to registration
pursuant to this Section 3 shall be conditioned upon such Holder's
participation in such underwriting to the extent provided herein. All
Holders of Registrable Shares proposing to distribute their securities
through such underwriting shall (together with the Common Shares to be
registered by the Company in such registration (the "Other Shareholders"))
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enter into an underwriting agreement in customary form with the underwriter
or underwriters selected for underwriting by the Company. If any Holder of
Registrable Shares disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Shares or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(c) Notwithstanding any other provision of this Section 4,
if the underwriter determines that marketing factors require a limitation on
the number of shares to be underwritten, the underwriter may exclude from
such registration and underwriting all or a portion of the Registrable
Shares which would otherwise be underwritten pursuant to this Section 4;
provided that such reduction of Registrable Shares from such registration
and underwriting shall be in accordance with the provisions of Section 2.1.4
or 2.2.2, as applicable, of the Founding Shareholders' Registration Rights
Agreement.
(d) The Company shall so advise all Holders of securities
requesting registration of any limitations on the number of shares to be
underwritten and the number of shares of securities that are entitled to be
included in the registration; provided, that the number of shares to be
underwritten shall be allocated pro rata among all Holders of Registrable
Shares and the Other Shareholders in proportion, as nearly as practicable,
to the respective amounts of Registrable Shares owned by them.
SECTION 4. LIQUIDATED DAMAGES
(a) If the Exchange Act Registration Statement shall not
have become effective on or prior to the date that is two hundred seventy
(270) days following the Exchange Act Registration Trigger (a "Exchange Act
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Registration Default"), the Company shall, as promptly as practicable and in
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no event later than two (2) days following the end of the month in which
such Exchange Act Registration Default occurred, pay to each Holder of
Common Shares liquidated damages ("Exchange Act Liquidated Damages") in the
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form of Common Shares in an amount equal to 0.5% of the number of such
Holder's Common Shares held on the date of such Exchange Act Registration
Default; provided, that a Holder shall be paid Exchange Act Liquidated
Damages only with respect to any Common Shares that were acquired by such
Holder upon the consummation of the Offering or subsequent to the Offering
(if such Common Shares were originally offered as part of the Offering). The
Company shall pay additional Exchange Act Liquidated Damages within two days
of the end of each month until the Exchange Act Registration Default shall
have been cured; provided that a pro rata portion of the Exchange Act
Liquidated Damages shall be paid with respect to any month in which the
Company shall have been in Exchange Act Registration Default for a portion
of such month; and provided, further, that Exchange Act Liquidated Damages
shall
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be payable for a maximum period of twelve (12) months following the
occurrence of the Exchange Act Registration Default.
(b) Notwithstanding any other provision of this Agreement,
the liquidated damages contemplated in this Section 4 shall be the sole and
exclusive remedy available to the Holders in the event of any failure by the
Company to comply with the terms of this Agreement.
SECTION 5. CURRENT PUBLIC INFORMATION
(a) Following completion of a Qualified Business Combination
until the Exchange Act Registration Statement shall have become effective, the
Company shall provide to the Holders annual, semi-annual, quarterly and
current reports and to ensure when practicable, in light of the availability
of information, compliance costs and other factors, that such reports and any
other materials distributed to shareholders for operations subsequent to
completion of a business combination are substantially consistent with the
materials that would be required if such materials were subject to the
requirements of the Commission (it being understood that, due to such factors,
such reports and other materials may not contain information substantially
consistent with the materials that would be required if such materials were
subject to the Commission's requirements).
(b) With respect to any shareholder circular or proxy
materials required to be prepared by the Company in connection with a business
combination, the Company will endeavour to provide a narrative description of
the business and operations of the Target Business (as defined in the Offering
Circular) similar to those required by the US proxy rules, but only to the
extent that the Company's board in its business judgment determines that it
would be reasonably practicable to provide such information, taking into
account factors such as time, expense and other relevant considerations under
the particular circumstances. In addition, if available, and to the extent
deemed relevant and reasonably practicable by the directors of the Company and
taking into account all other factors mentioned above, audited or unaudited
historical financial statements and/or a pro forma balance sheet or other pro
forma financial information of the Target Business will be included. The proxy
materials will also contain a description of the amount to be released from
the Trust Fund (as defined in the Offering Circular), including a breakdown of
the amount of funds that constitute (i) consideration and expenses for the
transaction, (ii) working capital and (iii) transaction expenses.
(c) For so long as any Common Shares or Warrants are
"restricted securities" within the meaning of Rule 144(a)(3) of the Securities
Act, the Company shall, during any period in which it is not subject to
Section 13 or 15(d) of the Exchange Act, provide, to Holders, any owner of any
beneficial interest in the Common Shares or Warrants or to any prospective
purchaser designated by such Holder or beneficial owner, upon the request of
such Holder, beneficial owner or prospective purchaser, the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Securities Act.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company regardless of
whether any registration statement hereunder becomes effective, including
without limitation and as applicable: (i) all Commission, securities exchange
or NASD registration and filing fees and expenses; (ii) all
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fees and expenses of compliance with U.S. federal securities and state blue
sky laws and compliance with the rules of a securities exchange or NASD, as
applicable; (iii) all expenses of printing, messenger and delivery services;
(iv) all fees and disbursements of counsel for the Company; and (v) all fees
and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by
or incident to such performance) but excluding those fees borne by other
parties as detailed in the Placing Agreement and any portion of commissions or
discounts attributable to the Common Shares being offered and sold by the
Holders.
(b) The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company.
SECTION 7. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless each
Holder, its officers and employees and each Person, if any, who controls any
such Holders, within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which that Holder, officer, employee or controlling Person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement filed pursuant hereto or in any amendment or
supplement thereto; or (ii) the omission or alleged omission to state in any
registration statement filed pursuant hereto or in any amendment or supplement
thereto 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, not misleading, and shall reimburse each Holder and each such officer,
employee or controlling Person promptly upon demand for any legal or other
expenses reasonably incurred by that Holder, officer, employee or controlling
Person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred provided that no Holder shall be indemnified for misstatements or
omissions arising from information provided by the Holder in writing for
inclusion in any registration statement filed pursuant hereto. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder or to any officer, employee or controlling Person
of that Holder.
(b) Promptly after receipt by an indemnified party under
this Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the Company under this Section 7, notify the Company in writing of the claim
or the commencement of that action; provided, however, that the failure to
notify the Company shall not relieve it from any liability which it may have
under this Section 7 except to the extent it has been materially prejudiced by
such failure; and provided, further, that the failure to notify the Company
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 7. If any such claim or action shall
be brought against an indemnified party, and it shall notify the Company
thereof, the Company shall be entitled to participate therein and, to the
extent that it wishes to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the Company to the
indemnified party of its election to assume the defense of such claim or
action, the Company shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in
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connection with the defense thereof other than reasonable costs of
investigation; provided, however, any indemnified party shall have the right
to employ separate counsel in any such action and to participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel has
been specifically authorized by the Company in writing, or (ii) such
indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Company and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the Company has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the Company in writing that it elects
to employ separate counsel at the expense of the Company, the Company shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to one local
counsel) at any time for all such indemnified parties, which firm shall be
designated in writing by the Holders of a majority in principal amount of the
outstanding Common Shares and the Common Shares issuable upon exercise of the
Warrants. The Company shall not (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the Company or if
there be a final judgment of the plaintiff in any such action, the Company
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(c) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then the
Company shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Holders on the other, from the sale
of the Common Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but any
other relevant equitable considerations. The Company and the Holders agree
that it would not be just and equitable if contributions pursuant to this
Section 7(c) were to be determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7 shall be deemed to include, for purposes
of this Section 7(c), 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 Section 7(c), no
Holder shall be required to contribute any amount in excess of the amount by
which the net proceeds
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received by it in connection with its sale of Common Shares exceeds the
amount of any damages which such Holder has otherwise paid or become liable
to pay by reason of the untrue or alleged untrue statement or omission or
alleged omission. 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. The Holders' obligations to contribute as provided in
this Section 7(c) are several and not joint.
SECTION 8. MISCELLANEOUS
(a) No Inconsistent Agreements. Except as disclosed in the
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Offering Circular, the Company has not previously entered into any agreement
granting any registration rights with respect to its Common Shares to any
Person.The Company shall not, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's Common Shares under any agreement in effect on
the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement
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may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the principal amount
of the outstanding Common Shares and the Common Shares issuable upon the
exercise of the Warrants affected by such amendment, modification, supplement,
waiver or consent.
(c) Notices. All notices and other communications provided
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for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
facsimile or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth in
the record books of the Company; and
if to the Company to:
Viceroy Acquisition Corporation
8235 Forsyth Boulevard, Suite 400
Clayton, Missouri 63105
USA
Attn: Chief Executive Officer
with copies to:
CRT Capital Group LLC
262 Harbor Drive
Stamford, Connecticut 06902
Attn: Steve Bragg
and
KBC Peel Hunt
111 Old Broad Street
London EC2N 1PH
Attn: Adam Hart
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Any such notices and communications shall take effect at
the time of receipt thereof.
(d) Successors and Assigns. This Agreement shall inure to
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the benefit of and be binding upon the successors and assigns of each of the
parties.
(e) Counterparts. This Agreement may be executed in any
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number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
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convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
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AND CONSTRUED AND INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(h) Severability. In the event that any one or more of the
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provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(i) Entire Agreement. This Agreement is intended by the
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parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the investor rights granted by
the Company herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
VICEROY ACQUISITION CORPORATION
By: /s/ Douglas D. Hommert
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Douglas D. Hommert, Executive
Vice President
CRT CAPITAL GROUP, LLC
By: /s/ Charles Severs
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Name: Charles Severs
Title: Senior Vice President
KBC PEEL HUNT LTD.
By: /s/ Adam Hart
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Name: Adam Hart
Title: Head of Business Development
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