Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of July 12,
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2006, by and among Viceroy Acquisition Corporation, a corporation organized
under the laws of Delaware (the "Company") and the undersigned parties
listed on the signature page hereto (each, an "Investor" and collectively,
the "Investors").
WHEREAS, the Investors currently hold all of the issued and
outstanding securities of the Company;
WHEREAS, the Investors and the Company desire to enter into this
Agreement to provide the Investors with certain rights relating to the
registration of the Shares held by them;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have
the following meanings:
"Agreement" means this Agreement, as amended, restated,
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supplemented, or otherwise modified from time to time.
"Commission" means the United States Securities and
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Exchange Commission, or any other federal agency then administering the
Securities Act and/or the Exchange Act.
"Company" is defined in the preamble to this Agreement.
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"Demand Registration" is defined in Section 2.1.1.
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"Demanding Holder" is defined in Section 2.1.1.
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"Exchange Act" means the Securities Exchange Act of 1934,
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as amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the applicable time.
"Form S-3" is defined in Section 2.3.
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"Indemnified Party" is defined in Section 4.3.
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"Indemnifying Party" is defined in Section 4.3.
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"Investor" is defined in the preamble to this Agreement.
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"Investor Indemnified Party" is defined in Section 4.1.
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"Maximum Number of Shares" is defined in Section 2.1.4.
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"Notices" is defined in Section 6.3.
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"Piggy-Back Registration" is defined in Section 2.2.1.
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"Register," "registered" and "registration" mean a
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registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act,
and such registration statement becoming effective.
"Registrable Securities" means all of the Shares owned or
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held by Investors. Registrable Securities include any warrants, shares in the
share capital or other securities of the Company issued as a dividend or other
distribution with respect to or in exchange for or in replacement of such
Shares. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when: (a) 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 sold, transferred, disposed
of or exchanged in accordance with such Registration Statement; (b) such
securities shall have been otherwise transferred and new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company; (c) such securities shall have ceased to be issued and
outstanding, or (d) the Commission makes a definitive determination or US
securities counsel to the Company delivers an opinion to the Company that the
Registrable Securities are salable under Rule 144(k).
"Registration Statement" means a registration statement
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filed by the Company with the Commission in compliance with the Securities
Act for a public offering and sale of the Shares (other than a registration
statement on Form S-4 or Form S-8, or their successors, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another entity).
"Release Date" means the date on which Shares are
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disbursed from escrow pursuant to Section 3 of that certain Share Escrow
Agreement dated as of July __, 2006 by and among the parties hereto and
Capita Trust Company (Jersey) Limited, as escrow agent.
"Reporting Date" means the date on which the Company has
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become obligated to file reports under the Exchange Act.
"Securities Act" means the Securities Act of 1933, 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 time.
"Shares" means the shares of common stock, par value
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$0.0001 per share, of the Company.
"Underwriter" means a securities dealer who purchases any
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Registrable Securities as principal in an underwritten offering and not as
part of such dealer's market-making activities.
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2. REGISTRATION RIGHTS.
2.1 Demand Registration.
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2.1.1. Request for Registration. At any time and from time
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to time on or after the later of the Release Date and the Reporting Date,
the holders of a majority-in-interest of the Registrable Securities then
held by the Investors or the transferees of the Investors may make a written
demand for registration under the Securities Act of all or part of their
Registrable Securities (a "Demand Registration"). Any demand for a Demand
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Registration shall specify the number of shares of Registrable Securities
proposed to be sold and the intended method(s) of distribution thereof. The
Company will notify all holders of Registrable Securities of the demand, and
each holder of Registrable Securities who wishes to include all or a portion
of such holder's Registrable Securities in the Demand Registration (each
such holder including shares of Registrable Securities in such registration,
a "Demanding Holder") shall so notify the Company within fifteen (15) days
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after the receipt by the holder of the notice from the Company. Upon any
such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to
Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company shall
not be obligated to effect more than an aggregate of two (2) Demand
Registrations under this Section 2.1.1 in respect of Registrable Securities.
2.1.2. Effective Registration. A registration will not be
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deemed to be a Demand Registration until the Registration Statement filed
with the Commission with respect to such Demand Registration has been
declared effective and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that if, after
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such Registration Statement has been declared effective, the offering of
Registrable Securities pursuant to a Demand Registration is interfered with
by any stop order or injunction of the Commission or any other governmental
agency or court, the Registration Statement with respect to such Demand
Registration will be deemed not to have been declared effective, unless and
until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest of the Demanding Holders (based
on the total amounts included in the Registration Statement) thereafter
elect to continue the offering; provided, further, that the Company shall
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not be obligated to file a second Registration Statement until a
Registration Statement that has been filed is counted as a Demand
Registration or is terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of
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the Demanding Holders (based on the total amounts included in the
Registration Statement) so elect and such holders so advise the Company as
part of their written demand for a Demand Registration, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. In such event, the right of any holder to
include its Registrable Securities in such registration shall be conditioned
upon such holder's participation in such underwriting and the inclusion of
such holder's Registrable Securities in the underwriting to the extent
provided herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected
for such underwriting by a majority-in-interest of the holders initiating
the Demand Registration.
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2.1.4. Reduction of Offering. If the managing Underwriter
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or Underwriters for a Demand Registration that is to be an underwritten
offering advises the Company and the Demanding Holders in writing that the
dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell, taken together with all other Shares or
other securities which the Company desires to sell and the Shares, if any,
as to which registration has been requested pursuant to written contractual
piggy-back registration rights held by other shareholders of the Company who
desire to sell, exceeds the maximum dollar amount or maximum number of
shares that can be sold in such offering without adversely affecting the
proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or
maximum number of shares, as applicable, the "Maximum Number of Shares"),
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then the Company shall include in such registration: (i) first, the
Registrable Securities as to which Demand Registration has been requested by
the Demanding Holders (pro rata in accordance with the number of shares of
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Registrable Securities which such Demanding Holder has requested be included
in such registration, regardless of the number of shares of Registrable
Securities held by each Demanding Holder) that can be sold without exceeding
the Maximum Number of Shares; (ii) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (i), the
Shares or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (iii) third, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (i) and (ii), the Shares for the account of other persons that the
Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the
Maximum Number of Shares; and (v) fourth, to the extent that the Maximum
Number of Shares have not been reached under the foregoing clauses (i),
(ii), and (iii), the Shares that other shareholders desire to sell that can
be sold without exceeding the Maximum Number of Shares.
2.1.5. Withdrawal. If a majority-in-interest of the
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Demanding Holders (based on the total amounts included in the Registration
Statement) disapprove of the terms of any underwriting or are not entitled
to include all of their Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders (based on the total amounts
included in the Registration Statement) may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or
Underwriters of their request to withdraw prior to the effectiveness of the
Registration Statement filed with the Commission with respect to such Demand
Registration. If the majority-in-interest of the Demanding Holders (based on
the total amounts included in the Registration Statement) withdraws from a
proposed offering relating to a Demand Registration, then such registration
shall not be deemed to be a Demand Registration provided for in Section
2.1.1.
2.2 Piggy-Back Registration.
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2.2.1. Piggy-Back Rights. If at any time on or after the
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Release Date the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering of equity securities, or securities
or other obligations exercisable or exchangeable for, or convertible into,
equity securities, by the Company for its own account or for shareholders of
the Company for their account (or by the Company and by shareholders of the
Company including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option
or other benefit plan, (ii) for an exchange offer or
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offering of securities solely to the Company's existing shareholders, (iii)
for an offering of debt that is convertible into equity securities of the
Company or (iv) for a dividend reinvestment plan, then the Company shall (x)
give written notice of such proposed filing to the holders of Registrable
Securities as soon as practicable but in no event less than ten (10) days
before the anticipated filing date, which notice shall describe the amount and
type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (y) offer to the holders of
Registrable Securities in such notice the opportunity to register the sale of
such number of shares of Registrable Securities as such holders may request in
writing within fifteen (15) days following receipt of such notice (a
"Piggy-Back Registration"). The Company shall cause such Registrable
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Securities to be included in such registration and shall use its best efforts
to cause the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition
of such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to
distribute their securities through a Piggy-Back Registration that involves an
Underwriter or Underwriters shall enter into an underwriting agreement in
customary form (with respect to selling shareholders) with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
2.2.2. Reduction of Offering. If the managing Underwriter
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or Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of Shares which the Company desires
to sell, taken together with Shares, if any, as to which registration has
been demanded pursuant to written contractual arrangements with persons
other than the holders of Registrable Securities hereunder, the Registrable
Securities as to which registration has been requested under this Section
2.2, and the Shares, if any, as to which registration has been requested
pursuant to the written contractual piggy-back registration rights of other
shareholders of the Company, exceeds the Maximum Number of Shares, then the
Company shall include in any such registration:
(i) If the registration is undertaken for the
Company's account: (A) first, the Shares or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; (B) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (A), the Shares, if any, including the
Registrable Securities, as to which registration has been requested pursuant
to written contractual piggy-back registration rights of security holders (pro
rata in accordance with the number of Shares which each such person has
actually requested to be included in such registration, regardless of the
number of Shares with respect to which such persons have the right to request
such inclusion) that can be sold without exceeding the Maximum Number of
Shares; and
(ii) If the registration is a "demand" registration
undertaken at the demand of persons other than the holders of Registrable
Securities pursuant to written contractual arrangements with such persons, (A)
first, the Shares for the account of the demanding persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent that
the Maximum Number of Shares has not been reached under the
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foregoing clause (A), the Shares or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; and (C) third, to the extent that the Maximum Number of Shares has
not been reached under the foregoing clauses (A) and (B), the Registrable
Securities as to which registration has been requested under this Section
2.2 (pro rata in accordance with the number of shares of Registrable
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Securities held by each such holder); and (D) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(A), (B) and (C), the Shares, if any, as to which registration has been
requested pursuant to written contractual piggy-back registration rights
which other shareholders desire to sell that can be sold without exceeding
the Maximum Number of Shares.
2.2.3. Withdrawal. Any holder of Registrable Securities may
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elect to withdraw such holder's request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a Registration
Statement at any time prior to the effectiveness of the Registration
Statement. Notwithstanding any such withdrawal, the Company shall pay all
expenses incurred by the holders of Registrable Securities in connection with
such Piggy-Back Registration as provided in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable
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Securities may at any time and from time to time, request in writing that the
Company register the resale of any or all of such Registrable Securities on
Form S-3 or any similar short-form registration which may be available at such
time ("Form S-3"); provided, however, that the Company is eligible to use such
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form and provided further that the Company shall not be obligated to effect
such request through an underwritten offering. Upon receipt of such written
request, the Company will promptly give written notice of the proposed
registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such
holder's or holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
holder or holders joining in such request as are specified in a written
request given within fifteen (15) days after receipt of such written notice
from the Company; provided, however, that the Company shall not be obligated
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to effect any such registration pursuant to this Section 2.3: (i) if Form S-3
is not available for such offering; or (ii) if the holders of the Registrable
Securities, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the
public of less than $2,000,000. Registrations effected pursuant to this
Section 2.3 shall not be deemed to be Demand Registrations effected pursuant
to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to
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effect the registration of any Registrable Securities pursuant to Section 2,
the Company shall use commercially reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method(s) of distribution thereof as expeditiously as practicable,
and in connection with any such request:
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3.1.1. Filing Registration Statement. The Company shall,
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as expeditiously as possible and in any event within sixty (60) days after
receipt of a request for a Demand Registration pursuant to Section 2.1,
prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale of all
Registrable Securities to be registered thereunder in accordance with the
intended method(s) of distribution thereof, and shall use commercially
reasonable efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3; provided, however, that
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the Company shall have the right to defer any Demand Registration for up to
sixty (60) days, and any Piggy-Back Registration for such period as may be
applicable to deferment of any demand registration to which such Piggy-Back
Registration relates, in each case if the Company shall furnish to the
holders a certificate signed by the Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its
shareholders for such Registration Statement to be effected at such time;
provided further, however, that the Company shall not have the right to
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exercise the right set forth in the immediately preceding proviso more than
once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2. Copies. The Company shall, prior to filing a
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Registration Statement or prospectus, or any amendment or supplement
thereto, furnish without charge to the holders of Registrable Securities
included in such registration that have so requested in writing, and such
holders' legal counsel, copies of such Registration Statement as proposed to
be filed, each amendment and supplement to such Registration Statement, the
prospectus included in such Registration Statement (including each
preliminary prospectus), and such other documents as the holders of
Registrable Securities included in such registration or legal counsel for
any such holders may request in order to facilitate the disposition of the
Registrable Securities owned by such holders.
3.1.3. Amendments and Supplements. The Company shall prepare
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and file with the Commission such amendments, including 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 and in compliance with the provisions of the Securities
Act until all Registrable Securities and other securities covered by such
Registration Statement have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement (which
period shall not exceed the sum of one hundred twenty (120) days plus any
period during which any such disposition is interfered with by any stop order
or injunction of the Commission or any governmental agency or court) or such
securities have been withdrawn.
3.1.4. Notification. After the filing of a Registration
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Statement, the Company shall promptly, and in no event more than two (2)
business days after such filing, notify the holders of Registrable Securities
included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events
within two (2) business days of the occurrence of any of the following: (i)
when such Registration Statement becomes effective; (ii) when any
post-effective amendment to such Registration Statement becomes effective;
(iii) the issuance or threatened issuance by the Commission of any
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stop order (and the Company shall take all actions required to prevent the
entry of such stop order or to remove it if entered); and (iv) any request by
the Commission for any amendment or supplement to such Registration Statement
or any prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of the
securities covered by such Registration Statement, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and promptly make available to the holders of Registrable
Securities included in such Registration Statement any such supplement or
amendment; except that before filing with the Commission a Registration
Statement or prospectus or any amendment or supplement thereto, the Company
shall furnish to the holders of Registrable Securities included in such
Registration Statement, that have so requested in writing, and to the legal
counsel for any such holders, copies of all such documents proposed to be
filed sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any Registration Statement or
prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such holders or their legal counsel shall
reasonably object.
3.1.5. State Securities Laws Compliance. The Company shall
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use commercially reasonable efforts to (i) register or qualify the Registrable
Securities covered by the Registration Statement under such securities or
"blue sky" laws of such jurisdictions in the United States as the holders of
Registrable Securities included in such Registration Statement (in light of
their intended plan of distribution) may request and (ii) take such action
necessary to cause such Registrable Securities covered by the Registration
Statement to be registered with or approved by such other governmental
authorities as may be necessary by virtue of the business and operations of
the Company and do any and all other acts and things that may be necessary or
advisable to enable the holders of Registrable Securities included in such
Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the Company shall
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not be required to qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 3.1.5 or
subject itself to taxation in any such jurisdiction.
3.1.6. Agreements for Disposition. The Company shall enter
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into customary agreements (including, if applicable, 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. The representations, warranties and covenants of the Company in
any underwriting agreement which are made to or for the benefit of any
Underwriters, to the extent applicable, shall also be made to and for the
benefit of the holders of Registrable Securities included in such registration
statement. No holder of Registrable Securities included in such registration
statement shall be required to make any representations or warranties in the
underwriting agreement except, if applicable, with respect to such holder's
organization, good standing, authority, title to Registrable Securities, lack
of conflict of such sale with such holder's material agreements and
organizational documents, and with respect to written information relating to
such holder that such holder has furnished in writing expressly for inclusion
in such Registration Statement.
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3.1.7. Cooperation. The Chief Executive Officer of the
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Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and
all other offering materials and related documents, and participation in
meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8. Records. The Company shall make available for
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inspection by the holders of Registrable Securities included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such
Registration Statement or any Underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, as shall be
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
information requested by any of them in connection with such Registration
Statement.
3.1.9. Opinions and Comfort Letters. The Company shall
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furnish to each holder of Registrable Securities included in any Registration
Statement a signed counterpart, addressed to such holder, of (i) any opinion
of counsel to the Company delivered to any Underwriter and (ii) provided that
such holder has furnished customary representations and certifications, any
comfort letter from the Company's independent public accountants delivered to
any Underwriter.
3.1.10. Listing. The Company shall use its best efforts to
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cause all Registrable Securities included in any registration to be listed on
such exchanges or otherwise designated for trading in the same manner as
similar securities issued by the Company are then listed or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any
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notice from the Company of the happening of any event of the kind described in
Section 3.1.4(iv), or, in the case of a resale registration on Form S-3
pursuant to Section 2.3 hereof, upon any suspension by the Company, pursuant
to a written insider trading compliance program adopted by the Company's Board
of Directors, of the ability of all "insiders" covered by such program to
transact in the Company's securities because of the existence of material
non-public information, each holder of Registrable Securities included in any
registration shall immediately discontinue disposition of such Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such holder receives the supplemented or amended prospectus
contemplated by Section 3.1.4(iv) or the restriction on the ability of
"insiders" to transact in the Company's securities is removed, as applicable,
and, if so directed by the Company, each such holder will deliver to the
Company all copies, other than permanent file copies then in such holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and
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expenses incurred in connection with any Demand Registration pursuant to
Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any
registration on Form S-3 effected pursuant to
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Section 2.3, and all expenses incurred in performing or complying with its
other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or "blue sky" laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable
Securities as required by Section 3.1.10; (vi) National Association of
Securities Dealers, Inc. fees; (vii) fees and disbursements of counsel for the
Company and fees and expenses for independent certified public accountants
retained by the Company (including the expenses or costs associated with the
delivery of any opinions or comfort letters requested pursuant to Section
3.1.9); (viii) the fees and expenses of any special experts retained by the
Company in connection with such registration and (ix) the fees and expenses of
one legal counsel selected by the holders of a majority-in-interest of the
Registrable Securities included in such registration. The Company shall have
no obligation to pay any underwriting discounts or selling commissions
attributable to the Registrable Securities being sold by the holders thereof,
which underwriting discounts or selling commissions shall be borne by such
holders. Additionally, in an underwritten offering, all selling shareholders
and the Company shall bear the expenses of the underwriter pro rata in
proportion to the respective amount of shares each is selling in such
offering.
3.4 Information. The holders of Registrable Securities shall
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provide such information as may reasonably be requested by the Company, or the
managing Underwriter, if any, in connection with the preparation of any
Registration Statement, including amendments and supplements thereto, in order
to effect the registration of any Registrable Securities under the Securities
Act pursuant to Section 2 and in connection with the Company's obligation to
comply with federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to
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indemnify and hold harmless each Investor and each other holder of Registrable
Securities, and each of their respective officers, employees, affiliates,
directors, partners, members, attorneys and agents, and each person, if any,
who controls an Investor and each other holder of Registrable Securities
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) (each, an "Investor Indemnified Party"), from and against any
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expenses, losses, judgments, claims, damages or liabilities, whether joint or
several, arising out of or based upon any untrue statement (or allegedly
untrue statement) of a material fact contained in any Registration Statement
under which the sale of such Registrable Securities was registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arising out of or based upon any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration; and
the Company shall promptly reimburse the Investor
10
Indemnified Party for any legal and any other expenses reasonably incurred by
such Investor Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
- -----------------
extent that any such expense, loss, claim, damage or liability arises out of
or is based upon any untrue statement or allegedly untrue statement or
omission or alleged omission made in such Registration Statement, preliminary
prospectus, final prospectus, or summary prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to
the Company, in writing, by such selling holder expressly for use therein. The
Company also shall indemnify any Underwriter of the Registrable Securities,
their officers, affiliates, directors, partners, members and agents and each
person who controls such Underwriter on substantially the same basis as that
of the indemnification provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each
----------------------------------------------------
selling holder of Registrable Securities will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify
and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls such selling
holder or such underwriter within the meaning of the Securities Act, against
any losses, claims, judgments, damages or liabilities, whether joint or
several, insofar as such losses, claims, judgments, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or allegedly untrue statement of a material fact contained in any
Registration Statement under which the sale of such Registrable Securities was
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or
any amendment or supplement to the Registration Statement, or arise out of or
are based upon any omission or the alleged omission to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such
selling holder expressly for use therein, and shall reimburse the Company, its
directors and officers, and each such controlling person for any legal or
other expenses reasonably incurred by any of them in connection with
investigation or defending any such loss, claim, damage, liability or action.
Each selling holder's indemnification obligations hereunder shall be several
and not joint and shall be limited to the amount of any net proceeds actually
received by such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after
--------------------------------------
receipt by any person of any notice of any loss, claim, damage or liability or
any action in respect of which indemnity may be sought pursuant to Section 4.1
or 4.2, such person (the "Indemnified Party") shall, if a claim in respect
-----------------
thereof is to be made against any other person for indemnification hereunder,
notify such other person (the "Indemnifying Party") in writing of the loss,
------------------
claim, judgment, damage, liability or action; provided, however, that the
-----------------
failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party
may have to such Indemnified Party hereunder, except and solely to the extent
the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or
action brought against the Indemnified Party, then the Indemnifying Party
shall be entitled to participate in such claim or action, and, to
11
the extent that it wishes, jointly with all other Indemnifying Parties, to
assume control of the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or
action, the Indemnifying Party shall not be liable to the Indemnified Party
for any legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which both the
-----------------
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Indemnified Party against
the Indemnifying Party, with the fees and expenses of such counsel to be paid
by such Indemnifying Party if, based upon the written opinion of counsel of
such Indemnified Party, representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, consent to entry of judgment or effect any settlement of
any claim or pending or threatened proceeding in respect of which the
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such claim or proceeding.
4.4 Contribution.
------------
4.4.1. If the indemnification provided for in the
foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party
in respect of any loss, claim, damage, liability or action referred to
herein, then each such 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 loss, claim, damage, liability or
action in such proportion as is appropriate to reflect the relative fault of
the Indemnified Parties and the Indemnifying Parties in connection with the
actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable considerations. The
relative fault of any Indemnified Party and any Indemnifying Party 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 such
Indemnified Party or such Indemnifying Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 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 Section 4.4.1. The amount paid or payable by an Indemnified Party
as a result of any loss, claim, damage, liability or action referred to in
the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by
such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 4.4, no
holder of Registrable Securities shall be required to contribute any amount
in excess of the dollar amount of the net proceeds (after payment of any
underwriting fees, discounts, commissions or taxes)
12
actually received by such holder from the sale of Registrable Securities which
gave rise to such contribution obligation. 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.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any
--------
reports required to be filed by it under the Securities Act and the Exchange
Act and shall take such further action as the holders of Registrable
Securities may reasonably request, all to the extent required from time to
time to enable such holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rules may be amended
from time to time, or any similar Rule or regulation hereafter adopted by the
Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and
-------------------------
warrants that, except as disclosed in the Offering Circular relating to the
Company's admission for trading on the Alternative Investment Market of the
London Stock Exchange plc, no person, other than a holder of the Registrable
Securities, has any right to require the Company to register any shares of the
Company's share capital for sale or to include shares of the Company's share
capital in any registration filed by the Company for the sale of shares of
share capital for its own account or for the account of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and
----------------------------------------
the rights, duties and obligations of the Company hereunder may not be
assigned or delegated by the Company in whole or in part. This Agreement and
the rights, duties and obligations of the holders of Registrable Securities
hereunder may be freely assigned or delegated by such holder of Registrable
Securities in conjunction with and to the extent of any transfer of
Registrable Securities by any such holder. This Agreement and the provisions
hereof shall be binding upon and shall inure to the benefit of each of the
parties and their respective successors and the permitted assigns of the
Investor or holder of Registrable Securities or of any assignee of the
Investor or holder of Registrable Securities. This Agreement is not intended
to confer any rights or benefits on any persons that are not party hereto
other than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals
-------
or other communications (collectively, "Notices") required or permitted to be
-------
given hereunder or which are given with respect to this Agreement shall be in
writing and shall be personally served, delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram, telex
or facsimile, addressed as set forth below, or to such other address as such
party shall have specified most recently by written notice. Notice shall be
deemed given on the date of service or transmission if personally served or
transmitted by telegram, telex or facsimile; provided, that if such service or
transmission is not on a business day or is after normal business hours, then
such Notice shall be deemed given on the next business day. Notice otherwise
sent
13
as provided herein shall be deemed given on the next business day following
timely delivery of such notice to a reputable air courier service with an
order for next-day delivery.
To the Company:
Viceroy Acquisition Corporation
8235 Forsyth Boulevard, Suite 400
Clayton, Missouri 63105
USA
Attn: Chief Executive Officer
To an Investor, to the address of such investor on the books of the Company,
with a copy 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
6.4 Severability. This Agreement shall be deemed severable, and
------------
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term
or provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a
part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and enforceable.
6.5 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including all agreements
----------------
entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations
and discussions between the parties, whether oral or written.
14
6.7 Modifications and Amendments. No amendment, modification or
----------------------------
termination of this Agreement shall be binding upon any party unless
executed in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of this
-------------------
Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may
----------------------
waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party
- --------
unless it is in writing, is signed by such party, and specifically refers to
this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof nor of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed a
waiver or extension of the time for performance of any other obligations or
acts.
6.10 Remedies Cumulative. In the event that the Company fails to
-------------------
observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable
Securities may proceed to protect and enforce its rights by suit in equity
or action at law, whether for specific performance of any term contained in
this Agreement or for an injunction against the breach of any such term or
in aid of the exercise of any power granted in this Agreement or to enforce
any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and
each such right, power or remedy shall be cumulative and in addition to any
other right, power or remedy, whether conferred by this Agreement or now or
hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by,
-------------
interpreted under, and construed in accordance with the laws of the State of
Delaware, without giving effect to any choice-of-law provisions thereof that
would compel the application of the substantive laws of any other
jurisdiction.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and
-----------------------
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or
otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of the Investor in the
negotiation, administration, performance or enforcement hereof.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
15
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to be executed and delivered by their duly authorized representatives as of
the date first written above.
VICEROY ACQUISITION CORPORATION
A Delaware corporation
By: /s/ Douglas D. Hommert
-----------------------------------------------
Name: Douglas D. Hommert
Title: Executive Vice President
INVESTORS:
/s/ Lee E. Mikles
-------------------------------------------------------
Lee E. Mikles Revocable Trust dated March 26, 1996
By: Lee E. Mikles, Trustee
/s/ Lee E. Mikles
-------------------------------------------------------
Lee E. Mikles Gift Trust dated October 6, 1999
By: Lee E. Mikles, Trustee
/s/ Lee E. Mikles
-------------------------------------------------------
RAS, LLC
By: Lee E. Mikles
/s/ Douglas D. Hommert
-------------------------------------------------------
St. Albans Global Management, Limited Partnership, LLLP
By: SAGM Holdings, LLC
By: Douglas D. Hommert, Manager
/s/ Douglas D. Hommert
-------------------------------------------------------
Douglas D. Hommert Revocable Trust
By: Douglas D. Hommert, Trustee
/s/ Joe C. Leach
-------------------------------------------------------
Joe C. Leach
/s/ Edwin A. Levy
-------------------------------------------------------
Edwin A. Levy
/s/ M.R. Miller
-------------------------------------------------------
Mark R. Miller
/s/ Edwin L. Wahl
-------------------------------------------------------
Edwin L. Wahl
/s/ Jeffery H. Call
-------------------------------------------------------
Jeffery H. Call
/s/ Ken Fenton
-------------------------------------------------------
Ken Fenton