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Title: |
Registration Rights Agreement |
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Entities: |
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Date: |
2008 |
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Size: |
77KB total |
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Price: |
$55 |
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ID: |
#3290238 |
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EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
KAR HOLDINGS, INC.
Dated as of April 20, 2007
TABLE OF CONTENTS
| Page | ||||||
| 1. |
Registrations Upon Request |
1 | ||||
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1.1 |
Requests by the LLC |
1 | ||||
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1.2 |
Restrictions on Demand Registrations |
2 | ||||
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1.3 |
Registration Statement Form |
3 | ||||
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1.4 |
Expenses |
3 | ||||
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1.5 |
Priority in Demand Registrations |
3 | ||||
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1.6 |
Effective Period of Demand Registration |
4 | ||||
| 2. |
Incidental Registrations |
4 | ||||
| 3. |
Registration Procedures |
6 | ||||
| 4. |
Underwritten Offerings |
11 | ||||
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4.1 |
Underwriting Agreement |
11 | ||||
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4.2 |
Selection of Underwriters |
12 | ||||
| 5. |
Holdback Agreements |
12 | ||||
| 6. |
Preparation; Reasonable Investigation |
13 | ||||
| 7. |
No Grant of Future Registration Rights |
14 | ||||
| 8. |
Indemnification |
14 | ||||
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8.1 |
Indemnification by the Company |
14 | ||||
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8.2 |
Indemnification by the Sellers |
15 | ||||
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8.3 |
Notices of Claims, etc. |
15 | ||||
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8.4 |
Other Indemnification |
16 | ||||
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8.5 |
Indemnification Payments |
16 | ||||
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8.6 |
Other Remedies |
17 | ||||
| 9. |
Representations and Warranties |
17 | ||||
| 10. |
Definitions |
18 | ||||
| 11. |
Miscellaneous |
21 | ||||
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11.1 |
Rule 144, etc. |
21 | ||||
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11.2 |
Successors, Assigns and Transferees |
21 | ||||
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11.3 |
Stock Splits, etc. |
21 | ||||
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11.4 |
Amendment and Modification |
22 | ||||
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11.5 |
Additional Management Shareholders |
22 | ||||
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11.6 |
Outside Investors |
22 | ||||
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11.7 |
Governing Law |
23 | ||||
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11.8 |
Invalidity of Provision |
23 | ||||
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11.9 |
Notices |
23 | ||||
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11.10 |
Headings; Execution in Counterparts |
25 | ||||
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11.11 |
Injunctive Relief |
25 | ||||
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11.12 |
Term |
25 | ||||
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11.13 |
Further Assurances |
25 | ||||
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11.14 |
Entire Agreement |
25 | ||||
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11.15 |
Prior Registration Rights Agreement |
26 | ||||
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11.16 |
No Effect on Employment |
26 |
ii
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this ?Agreement?), is made and entered into as of April 20, 2007, by and among KAR Holdings, Inc., a Delaware corporation (the ?Company?), KAR Holdings II, LLC, a Delaware limited liability company (the ?LLC?), those employees of the Company or its subsidiaries listed on Schedule 1 hereto (together with any person that becomes a party to this Agreement pursuant to Section 11.5 and each of their respective Permitted Transferees, collectively, the ?Management Shareholders?). The Management Shareholders, together with any Person that becomes a party to this Agreement after the date hereof pursuant to Section 11.6 (any such Person, an ?Outside Investor?) and the LLC, are hereinafter referred to collectively as the ?Shareholders.? Capitalized terms used herein without definition are defined in Section 10 of this Agreement.
WHEREAS, Axle Holdings II, LLC (?Axle LLC?), Axle Holdings, Inc. (the ?Predecessor Company?) and certain of the Management Shareholders were parties to that certain Amended and Restated Registration Rights Agreement, dated as of May 25, 2005 (the ?Prior Registration Rights Agreement?) of the Predecessor Company and in connection with the transactions contemplated by the Merger Agreement, the Contribution Agreement, the Conversion Agreements and the Conversion Stock Option Agreements, the Predecessor Company, Axle LLC and the Management Shareholders have determined to terminate the Prior Registration Rights Agreement by entering into this Agreement and thereby replacing and superseding the Prior Registration Rights Agreement in its entirety with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this Agreement, the parties hereto agree as follows:
1. Registrations Upon Request.
1.1 Requests by the LLC. At any time, or from time to time, subject to Section 5, the LLC shall have the right by delivering a written notice to the Company (the ?Demand Notice?) to require the Company to effect the registration (which may, other than in connection with an IPO, at the option of the LLC, be effected as a Shelf Registration Statement) pursuant to this Agreement and in accordance with the Securities Act, of the offer and sale of any or all of the Registrable Securities owned by the LLC, each such request to specify the intended method or methods of disposition thereof; provided, that a Demand Notice shall only be made if the sale of the Registrable Securities requested to be registered by the LLC is reasonably expected by the LLC to result in aggregate gross cash proceeds in excess of $50,000,000. Upon any such request, the Company will promptly, but in any event within 10 days (or, in the case of a Take-down
1
Transaction, within 5 days), give written notice of such request to all other holders of Registrable Securities and thereupon the Company will, subject to Section 1.5, use its best efforts to effect the prompt registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the LLC, and
(ii) all other Registrable Securities which the Company has been requested to register by holders thereof by written request given to the Company by such holders within 10 days (or in the case of a Take-down Transaction, within 5 days) after the giving of such written notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable Securities so to be registered in accordance with the intended method or methods of disposition of the LLC.
1.2 Restrictions on Demand Registrations. The Company may (by delivering written notice to the LLC as contemplated by this Section 1.2) postpone the filing (but not the preparation) or effectiveness of a registration statement to be filed or declared effective pursuant to Section 1.1 (or, in the case of a Shelf Registration Statement, the continued use of such Shelf Registration Statement) if the filing or effectiveness of such registration statement, or the continued use of such Shelf Registration Statement, as applicable, would require the Company to make any public disclosure of material, non-public information, the disclosure of which, in the Board?s good faith judgment, after consultation with independent outside counsel to the Company, (i) would be required to be made in such registration statement filed with the Commission by the Company (or in an amendment or supplement to a then filed Shelf Registration Statement) so that such registration statement would not be materially misleading and (ii) would not be required to be made at such time but for the filing or use of such registration statement and the Company has a bona fide business purpose for not disclosing such information publicly. The Company shall give prompt written notice to the LLC of (x) any postponement of the filing or effectiveness or suspension of use, as applicable, of any such registration statement pursuant to this Section 1.2 (a ?Delay Notice?), (y) the Company?s decision to file or seek effectiveness or no longer suspend the use, as applicable, of such registration statement following such postponement or suspension and (z) the effectiveness of such registration statement. In the case the Company provides written notice regarding the suspension of use of a Shelf Registration Statement, the holders of Registrable Securities shall suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities thereunder. The Company may defer the filing (but not the preparation) or effectiveness or suspend the use or filing of a prospectus supplement or post-effective amendment, as applicable, of a particular registration statement pursuant to this Section 1.2 only once during any 12-month period. Notwithstanding the provisions of this Section 1.2, the Company may not postpone the filing or effectiveness or suspend
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