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APOLLO ADVISORS IV LP
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SC 13D
Oct 1, 5:15 PM ET
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APOLLO ADVISORS IV LP SC 13D
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Contents
74
Section 1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
Section 2. Form S-1 Registration.
(a) Demand. At any time commencing on the earlier of (i) 180 days following the first Underwritten Offering by the Company resulting in gross proceeds to the Company of at least $50 million (the “IPO”) and (ii) the first anniversary of the date of this Agreement, upon the written request of a Demanding Holder that the Company effect an Underwritten Offering of Registrable Securities on a long-form Registration Statement (Form S-1 or any similar successor form) under the Securities Act and specifying the aggregate number of Registrable Securities to be registered and the intended method of disposition thereof, the Company shall, subject to Section 6(b) hereof, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register as soon as practicable; provided, however, that the Company shall not be obligated to effect a registration pursuant to this Section 2 unless the Registrable Securities requested to be included therein have an anticipated aggregate price to the public of at least $50 million. In addition, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2(a): (w) after the Company has effected one (1) such registration; (x) within 180 days following the last date on which a Registration Statement filed in respect of a registration hereunder, if any, was effective; (y) during the period commencing with the date thirty (30) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company Registration, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; provided, that if the Company abandons such Company Registration, the Company shall promptly so notify any Demanding Holder that was unable to effect a registration under this Section 2 as a result of this clause (y); or (z) if the Demanding Holder proposes to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made under Section 3 hereof; and provided, further, that no more than two (2)
registrations under this Section 2(a) and Section 3 may become effective during any 12 month period.
(b) Effectiveness of Registration Statement. Subject to Section 6(b), the Company agrees to use its reasonable best efforts to (x) cause the Registration Statement relating to any demand registration pursuant to this Section 2 to become effective as promptly as practicable following a request for registration under Section 2(a), and (y) thereafter keep such Registration Statement effective continuously for the period specified in the next succeeding paragraph.
(c) Inclusion of Other Securities; Cutback. The Company, and any other holder of the Company’s securities who has existing registration rights or is granted subsequent registration rights in accordance with Section 10 hereof, may include its securities in any demand registration effected pursuant to this Section 2 on a basis no less favorable to the Demanding Holders than that of any other holder of the Common Stock of the Company; provided, however, that if the managing or lead underwriter or underwriters of a proposed Underwritten Offering contemplated thereby advise the Demanding Holders in writing that the total number of securities to be included in such proposed public offering exceeds the number that can be sold in such offering within a price range acceptable to the selling Holders holding a majority of the Registrable Securities included in the demand registration, then the amount or kind of securities offered for the account of the following groups of holders shall be reduced pro rata among members of such group (or in such other manner as any agreement among them may provide) in accordance with such managing underwriter’s recommendation in the following order of priority (with the securities to be reduced first listed first): (i) securities other than Registrable Securities offered by Persons other than the Company; (ii) securities offered by the Company; and (iii) Registrable Securities; and provided, further, that no Registrable Securities shall be reduced until all securities other than Registrable Securities are entirely excluded from the underwriting.
Section 3. Form S-3 and Shelf Registration.
(a) After the Company has qualified for the use of Form S-3 under the Securities Act (or any successor or substantially similar form) for sales of Registrable Securities by selling stockholders, in addition to the rights contained in Section 2, the Demanding Holders shall have the right to request an unlimited number of registrations on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended methods of disposition of such shares by such Demanding Holders, including whether such offering is requested to be an Underwritten Offering), and, upon such request, the Company shall, subject to Section 6(b) hereof, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities, which the Company has been so requested to register by such Demanding Holders; provided, however, that the Company shall not be obligated to effect a registration pursuant to this Section 3(a): (x) unless the Registrable Securities requested to be included therein have an anticipated aggregate price to the public of at least $20 million, (y) in the circumstances described in clause (y) of Section 2(a), or (z) within 180 days following the last date on which a Registration Statement filed in respect of a registration hereunder, if any, was effective. Any registration under this Section 3(a) shall be underwritten at the request of Holders holding a majority of the Registrable Securities to be included therein.
(b) If a request complying with the requirements of Section 3(a) hereof is delivered to the Company, the provisions set forth in the second and third paragraphs of Section 2(a) and the provisions of Sections 2(b) and (c) shall apply to such registration; provided, that if such request is for an offering other than an Underwritten Offering, the portions of Sections 2(a) through (c) applying to an Underwritten Offering shall not apply.
(c) The Shelf Demanding Holders shall have the right to request two (2) “shelf” registrations that constitute offerings of Registrable Securities under the Securities Act in a manner that permits sales on a continuous or delayed basis pursuant to Rule 415 under the Securities Act (or any successor provision) (the “Shelf Registration”). Each request for and initial filing of a Shelf Registration shall be made in compliance with Section 3(a); provided, that clause (x) of such section shall be inapplicable to such request. The Company shall, subject to Section 6(b), use its reasonable best efforts to cause the Registration Statement relating to the Shelf Registration to become effective as promptly as practicable and maintain the effectiveness of such Registration Statement for a period ending on the earliest of (i) two years following the date on which such Registration Statement first becomes effective, and (ii) the date on which all Registrable Securities covered by such Registration Statement have been sold and the distribution contemplated thereby has been completed or have become freely tradeable pursuant to Rule 144 without regard to volume. Any “takedown” under the Shelf Registration shall be underwritten at the request of Holders holding a majority of the Registrable Securities to be included therein. Any such “takedown” that is intended to be an Underwritten Offering shall be made pursuant to Section 3(a) such that the provisions relating to effecting a Registration Statement thereunder apply to effecting the takedown under the Shelf Registration. Any sales made on a delayed or continuous basis under the Shelf Registration that do not constitute an Underwritten Offering shall not be required to comply with Section 3(a).
Section 4. Piggyback Registration.
Section 5. Registration Procedures.
(a) General. In connection with the Company’s registration obligations pursuant to Sections 2, 3 and 4 hereof, at its expense, except as provided in Section 8, the Company will, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities as described in Sections 2, 3 and 4 on a form permitted by Section 2, 3 or 4 and available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof or such amendments and post-effective amendments to an existing Registration Statement as may be necessary to keep such Registration Statement effective for the time periods set forth in Sections 2(b) or 3(c) (if applicable); provided, that no Registration Statement shall be required to remain in effect after all Registrable Securities covered by such Registration Statement have been sold and distributed as contemplated by such Registration Statement;
(ii) take such reasonable action as may be necessary so that: (i) any Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, (ii) any Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (iii) any Prospectus forming part of any Registration Statement, and any amendment or supplement to such Prospectus, does not, as of such date, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) notify the selling Holders of Registrable Securities and the managing underwriters, if any, promptly and, if requested, by the Holders, confirm such notice in writing (1) when a new Registration Statement, Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to any new Registration Statement or post-effective amendment, when it has become effective, (2) of any request by the SEC for amendments or supplements to any Registration Statement or Prospectus or for additional information, (3) of the issuance by the SEC of any comments with respect to any filing and of the Company’s responses thereto, (4) of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (5) of any suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement of a material fact made in any Registration Statement, Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in any Registration Statement, Prospectus or any document incorporated therein by reference in order to make the statements therein (in the case of any Prospectus, in
the light of the circumstances under which they were made) not misleading (which notice shall be accompanied by an instruction to suspend the use of the Prospectus relating to such Registrable Securities until the requisite changes have been made);
(iv) furnish to each selling Holder of Registrable Securities prior to the filing thereof with the SEC, a copy of any Registration Statement, and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein and afford such Holder, the managing underwriter and their respective counsel a reasonable opportunity within a reasonable period to review and comment on copies of all such documents (including a reasonable opportunity to review copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed;
(v) furnish to each selling Holder of Registrable Securities, without charge, as many conformed copies as may reasonably be requested, of the then effective Registration Statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(vi) deliver to each selling Holder of Registrable Securities, without charge, as many copies of the then effective Prospectus (including each prospectus subject to completion) and any amendments or supplements thereto as such Persons may reasonably request in order to permit the offering and sale of the shares of such Registrable Securities to be offered and sold, but only while the Company shall be required under the provisions hereof to cause the Registration Statement to remain effective, and the Company consents (except during a suspension period permitted by this Agreement) to the use of the Prospectus or any amendment or supplement thereto by the selling Holder in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto in accordance with the terms hereof;
(vii) use its reasonable best efforts to prevent the issuance, and if issued to obtain the withdrawal, of any order suspending the effectiveness of the Registration Statement relating to such Registrable Securities;
(viii) prior to any offering of Registrable Securities pursuant to any Registration Statement, use reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any selling Holder of Registrable Securities or underwriter reasonably requests in writing and to keep such registration or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and to do all other acts or things reasonably necessary or advisable to enable the disposition in such distributions of the securities covered by the applicable Registration Statement; provided, however, that the Company will not be required to (1) qualify to do business in any jurisdiction where it would not otherwise be required to qualify, but for this paragraph (viii), (2) subject itself to general taxation in any such jurisdiction or (3) file a general consent to service of process in any such jurisdiction;
(ix) cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation of, and furnish the selling Holders or the managing underwriters, at the Company’s expense, certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the selling Holders or managing underwriters, if any, may reasonably request at least two Business Days prior to any sale of Registrable Securities to any underwriters and instruct the transfer agent and registrar of the Registrable Securities to release any stop transfer orders with respect to the Registrable Securities;
(x) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange (or quotation system operated by a national securities association) on which identical securities issued by the Company are then listed on or prior to the effective date of any Registration Statement filed hereunder and enter into customary agreements including, if necessary, a listing application and indemnification agreement in customary form;
(xi) provide the Holders, the transfer agent and registrar a CUSIP number for the Registrable Securities no later than the effective date of such Registration Statement;
(xii) use its best efforts to comply with all applicable rules and regulations of the SEC relating to such registration and the distribution of the securities being offered and make generally available to its securities holders, as soon as reasonably practicable, earnings statements satisfying the provisions of Section 11(a) of the Securities Act;
(xiii) cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.;
(xiv) if requested, include or incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement, such information as the managing underwriters administering an Underwritten Offering of the Registrable Securities registered thereunder reasonably request to be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-
effective amendment as soon as reasonably practicable after they are notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(xv) upon the occurrence of any event contemplated by clauses (4) (5) or (6) of Section 5(a)(iii) above, as soon as reasonably practicable prepare a post-effective amendment to any Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xvi) subject to the proviso in paragraph (xv) above, cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities (other than as may be required by the governmental agencies or authorities of any foreign jurisdiction and other than as may be required by a law applicable to a selling Holder by reason of its own activities or business other than the sale of Registrable Securities);
(xvii) if such offering is an Underwritten Offering, enter into an underwriting agreement with an investment banking firm selected in accordance with Section 5(c) of this Agreement containing representations, warranties, indemnities and agreements then customarily included by an issuer in underwriting agreements with respect to secondary underwritten distributions and take all such other actions as are reasonably requested by the managing underwriters for such underwritten offering in order to facilitate the registration or the disposition of such Registrable Securities;
(xviii) if such offering is an Underwritten Offering, (a) make reasonably available for inspection by each selling Holder of Registrable Securities and any managing or lead underwriter in such Underwritten Offering, and any attorney, accountant or other agent retained by such selling Holder or any such underwriter, all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries as shall be reasonably necessary to enable them to conduct a “reasonable” investigation for purposes of Section 11(a) of the Securities Act; (b) cause the Company’s officers, directors and employees to make reasonably available for inspection all relevant information reasonably requested by the selling Holder or any such underwriter, attorney, accountant or agent in connection with any such Registration Statement, in each case, as is customary for similar due diligence examinations; provided, that any information that is designated by the Company as confidential at the time
of delivery of such information shall be kept confidential by the selling Holder, such underwriter, or any such, attorney, accountant or agent, unless such disclosure is required by law, or such information becomes available to the public generally or through a third-party without an accompanying obligation of confidentiality; and (c) deliver such documents and certificates as may be reasonably requested by the selling Holder and the managing underwriters, if any, including customary opinions of counsel and “cold comfort” letters as may be reasonably required pursuant to the underwriting agreement relating thereto.
(xix) in connection with an Underwritten Offering requested pursuant to Section 2 or 3, the Company will participate, to the extent reasonably requested by the managing underwriter for the offering or the Demanding Holder or Shelf Demanding Holder participating therein, in customary efforts to sell the securities under the Underwritten Offering, including, without limitation, participating in “road shows” or other investor meetings, and the Company shall secure the reasonable participation of its senior management for such purposes; and
(xx) use its reasonable best efforts to take all other reasonable steps necessary to effect the registration, offering and sale of the Registrable Securities covered by the Registration Statement contemplated hereby.
(b) Each Holder of Registrable Securities agrees that, upon receipt of any written notice from the Company of the happening of any event of the kind described in clause (4), (5) or (6) of Section 5(a)(iii) or in Section 6(b), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the then current Prospectus until (1) such Holder is advised in writing by the Company that a new Registration Statement covering the offer of Registrable Securities has become effective under the Securities Act or (2) such Holder receives copies of a supplemented or amended Prospectus contemplated by this Section 5(b), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed. If the Company shall have given any such notice during a period when a demand registration is in effect, the Company shall extend the period described in Section 2(b) or 3(c) (as applicable) by the number of days during which any such disposition of Registrable Securities is discontinued pursuant to this paragraph. If so directed by the Company, on the happening of such event, the Holder will deliver to the Company (at the Company’s expense) all copies, other than permanent
file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice.
(c) Selection of Underwriters. With respect to any Underwritten Offering, the Company shall be entitled to select the managing underwriter; provided, that if the Underwritten Offering is undertaken pursuant to Section 2 or 3 hereof, such managing underwriter shall be selected by the Holders of a majority of the Registrable Securities included in such registration, subject to approval of the Company, which approval shall not be unreasonably withheld.
Section 6. Other Agreements.
(a) “Market Stand-Off” Election. In the case of any Underwritten Offering, upon the request of the managing underwriter, each Holder agrees not to effect any public sale or distribution of Registrable Securities, except as part of such Underwritten Offering pursuant to the terms hereof, during the period beginning fifteen (15) days prior to the closing date of such Underwritten Offering and during the period ending ninety (90) days after such closing date (or such longer period, not to exceed 180 days, as may be reasonably requested by the Company or by the managing underwriter or underwriters).
(b) Material Development Condition. With respect to any Registration Statement filed or to be filed pursuant to Section 2 or 3, if the Company determines that, in its good faith judgment, (i) filing a Registration Statement or maintaining effectiveness of a current Registration Statement would have a material adverse effect on the Company or its stockholders in relation to any material financing, acquisition or other corporate transaction, and the Company has determined that disclosure of any such transaction is not in the best interests of the Company and its stockholders, or (ii) the filing or maintaining effectiveness of a current Registration Statement would require disclosure of material information that the Company has a valid business purpose of retaining as confidential, upon the giving of a written notice (a “Delay Notice”) to such effect, signed by the Chairman of the Board of Directors, Chief Executive Officer, President or Chief Financial Officer of the Company, to any Holder of Registrable Securities included or to be included in such Registration Statement, the Company shall be entitled to postpone filing or suspend the use by the Holders of the Registration Statement for a reasonable period of time, provided that the Company may not postpone the filing or suspend any such sales for a period of more than sixty (60) consecutive days; provided, that the Company shall not be entitled to exercise any such right more than two times in any calendar year or less than 30 days from the prior suspension period; and provided further, that such exercise shall not prevent the Holders from being entitled to at least 240 days of effective registration per calendar year.
(c) Limitation on Demand, Shelf and Piggyback Registration Rights. Anything to the contrary contained in this Agreement notwithstanding, when upon the written opinion of counsel for the Company (which may be in-house counsel) delivered to a Holder requesting registration hereunder that the Registrable Securities held by such Holder are not Registrable Securities as defined in clause (iii) of the definition thereof and the Company has agreed to remove all restrictive securities law legends with respect to such Registrable Securities, such Holder shall have no rights, pursuant to Sections 2, 3 or 4 hereof, to request a registration in connection with such proposed sale; provided, however, if counsel for such Holder of Registrable Securities
reasonably disagrees in a written opinion delivered to the Company with such written opinion of counsel for the Company, the foregoing limitation on registration rights shall be of no force or effect.
Section 7. Registration Expenses.
Section 8. Indemnification.
(a) Indemnification by the Company. The Company, without limitation as to time agrees to indemnify and hold harmless, to the fullest extent permitted by law, but without duplication, each Holder of Registrable Securities included in a Registration Statement, its officers, directors, employees, partners, principals, equityholders, managed or advised accounts, advisors and agents, and each Person who controls such Holder within the meaning of Section 15 of the Securities Act, and, unless indemnification of such Persons is otherwise provided for in the applicable underwriting agreement, each underwriter, its partners, members, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act (individually, an “Indemnified Person”), from and against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and reasonable legal fees and expenses and including expenses incurred and amounts paid in settlement of any litigation, commenced or threatened) arising out of or based upon any untrue statement (or alleged untrue statement) of a material fact in, or any omission (or alleged omission) of a material fact required to be stated in, such Registration Statement or Prospectus or necessary to make the statements therein (in the case of a Prospectus in light of the
circumstances under which they were made) not misleading, as such expenses are incurred, except insofar as the same are caused by or contained in any information furnished in writing to the Company by any Indemnified Person or any underwriter expressly for use therein.
(b) Indemnification by Holders of Registrable Securities. In connection with any Registration Statement in which a Holder of Registrable Securities is participating, each such Holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and agrees to indemnify and hold harmless, to the fullest extent permitted by law, severally but not jointly with any other Holder, but without duplication, and without limitation as to time, the Company, its officers, directors, shareholders, employees, advisors and agents, and each Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and reasonable legal fees and expenses and including expenses incurred in settlement of any litigation, commenced or threatened) arising out of or based upon any untrue statement (or alleged untrue statement) of material fact in, or any omission (or alleged omission) of a material fact required to be stated in, the Registration Statement or Prospectus or necessary to make the statements therein (in the case of a Prospectus in light of the circumstances under which they were made) not misleading, as such expenses are incurred, to the extent, but only to the extent, that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder to the Company specifically for inclusion therein. In no event shall any participating Holder be liable for any amount in excess of the proceeds (net of payment of all expenses (excluding underwriting discounts and commissions paid or payable by such Holder)) received by such Holder upon the sale of the Registrable Securities offered and sold by such Holder pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel of such indemnifying party’s choice; provided, however, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such indemnified Person unless (A) the indemnifying party shall have agreed in writing to pay them, (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party in a timely manner or (C) the named parties to an action, claim or proceeding (including any impleaded parties) include any indemnified party and the indemnifying party or any of its Affiliates and in the reasonable judgment of any such Person, based upon advice of its counsel, (1) a conflict of interest may exist between such person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person) or (2) there may be one or more legal defenses available to it which are different from or in addition to those available to the indemnifying party; provided, that such counsel only be hired to the extent necessary for such defense or defenses; and provided, further, that the indemnifying party shall be responsible to pay the fees and expenses of only one law firm plus one local counsel in each necessary jurisdiction pursuant to these clauses (A), (B) and (C). The indemnifying party will not be
subject to any liability for any settlement made without its written consent (which consent shall not be unreasonably withheld). No indemnified party will be required to consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of the claim will not be obligated to pay the fees and expenses of more than one counsel (plus one local counsel if required in a specific instance) for all parties indemnified by such indemnifying party with respect to such claim. The failure by an indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 9, except to the extent the failure to give such notice is materially prejudicial to the indemnifying party’s ability to defend such action.
(d) Contribution. If for any reason the indemnification provided for in Section 8(a) or Section 8(b) is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 8(a) and Section 8(b), then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the indemnifying party or parties on the one hand or the indemnified party on the other and the parties, relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or 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 misrepresentations. The amount paid or payable by a party as a result of any losses shall be deemed to include any legal or other fees or expenses incurred by such part in connection with any proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 8(a) or Section 8(b) were available to such party. In no event shall any participating Holder be liable for any amount in excess of the proceeds (net of payment of all expenses (excluding underwriting discounts and commissions paid or payable by such Holder)) received by such Holder upon the sale of the Registrable Securities offered and sold by such Holder pursuant to such Registration Statement.
(e) Remedies Cumulative. The indemnity, contribution and expense reimbursement obligations under this Section 8 shall be in addition to any liability each indemnifying person may otherwise have and shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party.
Section 9. Participation in Underwritten Registrations.
Section 10. Subsequent Registration Rights.
Section 11. Rule 144 Reporting.
(a) make and keep public information regarding the Company available as those terms are understood and defined in and interpreted under Rule 144 under the Securities Act, at all times from and after ninety (90) days following the effective date of an IPO registration statement;
(b) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at any time after it has become and remains subject to such reporting requirements; and
(c) so long as a Holder owns any Restricted Securities, furnish to the Holder forthwith upon written request a written statement by the Company as to its compliance with the reporting requirements of Rule 144 (at any time from and after ninety (90) days following the effective date of an IPO registration statement), and of the Securities Act and the Exchange Act (at any time after it has become and remains subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed as a Holder may reasonably request in availing itself to any rule or regulation of the SEC allowing a Holder to sell any such securities without registration.
Section 12. Amendments and Waivers.
Section 13. Notices.
(a) If to a Holder of Registrable Securities, initially at the address set forth below such Holder’s signature page hereto, and thereafter at such other address as may be designated from time to time by notice given in accordance with the provisions of this Section 13.
(b) If to the Company, initially at 1001 Fleet Street, Baltimore, Maryland 21202, Attention: Chief Financial Officer; telecopier no. (410) 843-2139, with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand Avenue, Suite 3400, Los Angeles, California 90071, Attention: Jeffrey H. Cohen, Esq., Facsimile: (213) 687-5600, and thereafter at such other address as may be designated from time to time by notice given in accordance with the provisions of this Section 13.
(c) All such notices and other communications shall be deemed to have been delivered and received (i) in the case of personal delivery, telecopier or telegram, on the date of such delivery, (ii) in the case of overnight air courier, on the Business Day after the date when sent and (iii) in the case of mailing, on the third Business Day following such mailing.
Section 14. Successors and Assigns.
Section 15. Counterparts.
Section 16. Headings.
Section 17. Governing Law.
Section 18. Jurisdiction; Forum.
Section 19. Severability.
Section 20. Termination Of Registration Rights.
Section 21. Remedies.
Section 22. Entire Agreement.
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