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Exhibit 2.1
AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
Amendment, dated as of
June 2, 2008 (the “ Amendment ”) to the
Agreement and Plan of Merger, dated as of March 21, 2008, by
and among:
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Marathon
Acquisition Corp. , a Delaware corporation (“ MAQ
”);
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GSL
Holdings, Inc. , a corporation organized under the laws of the
Republic of the Marshall Islands (the “ Merger
Subsidiary ”);
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Global
Ship Lease, Inc. , a corporation organized under the laws of
the Republic of the Marshall Islands (the “ Company
”); and
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CMA CGM
S.A., a société anonyme organized under the
laws of France (“ CMA ”).
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RECITALS
WHEREAS, MAQ, Merger
Subsidiary, the Company and CMA entered into the Merger Agreement
on March 21, 2008 pursuant to which MAQ will merge with and
into the Merger Subsidiary with the Merger Subsidiary continuing as
the surviving company and the Company will then merge with and into
the Merger Subsidiary with the Merger Subsidiary continuing as the
surviving company in the merger;
WHEREAS, concurrent with and
as a condition to the Closing, the Surviving Company and CMA, among
other parties, will enter into, among other Transaction Agreements,
a Registration Rights Agreement, and the Surviving Company,
Marathon Founders, LLC and CMA will enter into a
Stockholders’ Agreement, each dated as of the Closing;
and
WHEREAS, in accordance with
Section 11.10 of the Agreement, the parties to the Agreement
desire to amend the Agreement as set forth in this
Amendment.
NOW, THEREFORE, in
consideration of the covenants, promises and representations set
forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Definitions .
Capitalized terms used herein and not otherwise defined shall have
their respective meanings as set forth in the Agreement.
2. Registration Rights
Agreement . The parties agree that the form of Registration
Rights Agreement attached as Exhibit A-1 to the Agreement and to be
entered into by the Surviving Company and CMA and the other parties
thereto as of the Closing shall be deleted in its entirety and
replaced by the form of Registration Rights Agreement attached
hereto as Exhibit A-1 .
3. Stockholders’
Agreement . The parties agree that the form of
Stockholders’ Agreement attached as Exhibit B to the
Agreement and to be entered into by the Surviving Company, Marathon
Founders LLC, a Delaware limited liability company, and CMA as of
the Closing shall be deleted in its entirety and replaced by the
form of Stockholders’ Agreement attached hereto as Exhibit
B .
4. Continuing Effect; No
Other Waivers or Amendments . Except as modified by this
Amendment, the Agreement and all the covenants, agreements, terms,
provisions and conditions thereof shall remain unchanged and in
full force and effect.
5. Counterparts; Facsimile
Signatures . This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
document and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the
same counterpart. Delivery by facsimile to counsel for the other
party of a counterpart executed by a party shall be deemed to meet
the requirements of the previous sentence.
6. Governing Law .
This Amendment shall be governed by and construed in accordance
with the Law of the State of New York, without giving effect to any
choice or conflict of Law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
New York.
[The remainder of this
page has been intentionally left blank.]
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed as of the
date first written above.
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| MARATHON ACQUISITION CORP. |
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| By: |
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/s/ Michael Gross
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| Name: |
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Michael
Gross |
| Title: |
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Chairman and
CEO |
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| GSL HOLDINGS, INC. |
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| By: |
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/s/ Michael Gross
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| Name: |
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Michael Gross
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| Title: |
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Chief Executive Officer
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| CMA CGM S.A. |
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| By: |
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/s/ Jean-Yves
Schapiro
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| Name: |
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Jean-Yves
Schapiro |
| Title: |
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Executive
Vice President, Finance & Control |
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| GLOBAL SHIP LEASE, INC. |
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| By: |
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/s/ Ian J. Webber
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| Name: |
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Ian J.
Webber |
| Title: |
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CEO |
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| GLOBAL SHIP LEASE, INC. |
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| By: |
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/s/ Serge Corbel
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| Name: |
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Serge
Corbel |
| Title: |
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Authorized
Signatory |
EXHIBIT A-1
REGISTRATION RIGHTS
AGREEMENT
Exhibit A-1
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement” ) is
entered into as of the day of
, 2008, by and among: [ GSL Holdings, Inc. ] , a
Marshall Islands corporation (the
“Company” ), and each of the undersigned
parties listed under Insiders on the signature page hereto (each,
an “Insider” and collectively, the
“Insiders” ).
WHEREAS , pursuant to
the mergers (the “ Mergers ”)
contemplated by the Agreement and Plan of Merger, dated as of
March 21, 2008, among the Company, Marathon Acquisition Corp.,
Global Ship Lease, Inc. and CMA CGM S.A. (“ CMA
”), (i) CMA holds shares of the Common Stock (as defined
below) (“ CMA Shares ”),
(ii) Marathon Investors, LLC holds warrants (“
Sponsor Warrants ”) to acquire the shares of
the Common Stock (“ Sponsor Warrant Shares
”) and (iii) Marathon Founders, LLC and the other
Insiders hold shares of the Common Stock (the “
Founders Shares ”);
WHEREAS , the Insiders
and the Company desire to enter into this Agreement to provide the
Insiders with certain rights relating to the registration of
(i) the CMA Shares, (ii) the Founders Shares,
(iii) the Sponsor Warrants, and (iv) the Sponsor Warrant
Shares (collectively, the “ Insider Securities
”);
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:
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1. |
DEFINITIONS. The following capitalized terms used herein have
the following meanings: |
“Agreement” means this Agreement, as
amended, restated, supplemented, or otherwise modified from time to
time.
“Business
Combination” means the Mergers.
“Business
Day” means any day, except a Saturday, Sunday or
legal holiday on which the banking institutions in the City of New
York are authorized or obligated by law or executive order to
close.
“CMA
Shares” is defined in the recitals to this Agreement;
provided , that any such CMA Shares shall cease to be CMA
Shares when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the
Securities Act (as defined below) 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 pursuant to Rule 144 of the Securities
Act (or any similar provisions thereunder, but not Rule 144A), and
new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
public distribution of them shall not require registration under
the Securities Act; or (c) such securities shall have ceased
to be outstanding.
“Commission” means the Securities and
Exchange Commission, or such successor federal agency or agencies
as may be established in lieu thereof.
“Common
Stock” means common stock of the Company (including
Class A Common Stock, Class B Common Stock and Class C Common
Stock).
“Company” is defined in the preamble
to this Agreement.
“Demand
Registration” is defined in
Section 2.1.1.
“Demanding
Holder” is defined in Section 2.1.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
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“Founder
Shares” is defined in the recitals to this Agreement;
provided , that any such Founders Shares shall cease to be
Founder Shares when: (a) a Registration Statement with respect
to the sale of such securities shall have become effective under
the Securities Act (as defined below) 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 pursuant to Rule 144 of the
Securities Act (or any similar provisions thereunder, but not Rule
144A), and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not
require registration under the Securities Act; or (c) such
securities shall have ceased to be outstanding.
“Indemnified
Party” is defined in Section 4.3.
“Indemnifying
Party” is defined in Section 4.3.
“Insider” is defined in the preamble
to this Agreement.
“Insider
Indemnified Party” is defined in
Section 4.1.
“Insider
Securities” is defined in the recitals to this
Agreement; provided , that any such Insider Securities shall
cease to be Insider Securities when: (a) a Registration
Statement with respect to the sale of such securities shall have
become effective under the Securities Act (as defined below) 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
pursuant to Rule 144 of the Securities Act (or any similar
provisions thereunder, but not Rule 144A), and new certificates for
them not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent public distribution of
them shall not require registration under the Securities Act; or
(c) such securities shall have ceased to be
outstanding.
“Insider
Shares” means all CMA Shares, Founder Shares and
Sponsor Warrant Shares to which this Agreement relates, regardless
of whether such securities remain underlying other Insider
Securities.
“Maximum Number
of Securities” is defined in
Section 2.1.4.
“Notices” is defined in
Section 6.2.
“Piggy-Back
Registration” is defined in
Section 2.2.1.
“Permitted
Transferee” is defined as (i) any officers,
directors or employees of the Company; (ii) any person or
entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control, or is a member of Marathon Founders, LLC, Marathon
Investors, LLC or CMA, as the case may be, (iii) any recipient
of the Insider Securities, as the case may be, transferred by
operation of law to such recipient from an Insider or Permitted
Transferee; (iv) any immediate family member (including a
spouse, parent, child, grandchild, sibling, niece, nephew, first
cousin, mother or father-in-law, son or daughter-in-law, or brother
or sister-in-law), whether related by blood, marriage or adoption,
of the Insider (each an “Immediate Family Member”),
provided that any transfer thereto is conducted for estate-planning
purposes; and (v) any trust established solely for the benefit
of the transferor and/or any Immediate Family Member.
“Prospectus” means a prospectus
relating to a Registration Statement, as amended or supplemented,
and all materials incorporated by reference in such
Prospectus.
“Register,”
“registered” and
“registration” mean a registration
effected by preparing and filing a registration statement or
similar document under the Securities Act and such registration
statement becoming effective.
“Registration
Statement” means a registration statement filed by
the Company with the Commission in compliance with the Securities
Act and the rules and regulations promulgated thereunder for a
public offering and sale of Common Stock (other than a registration
statement on Form F-4 or Form F-8, or their successors, or any
registration statement covering only securities proposed to be
issued in exchange for securities or assets of another
entity).
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“Release
Date” means the date that is twelve months after the
consummation of the Business Combination.
“Securities
Act” means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
“Shelf
Registration Statement” means the shelf registration
statement referred to in Section 2.3, to be filed on any
Commission Securities Act registration form available at such time,
as amended or supplement by any amended or supplement, including
post-effective amendments, and all materials incorporated by
reference or explicitly deemed to be incorporated by reference in
such Shelf Registration Statement.
“Sponsor
Warrants” is defined in the recitals to this
Agreement; provided , that any such Sponsor Warrants shall
cease to be Sponsor Warrants when: (a) a Registration
Statement with respect to the sale of such securities shall have
become effective under the Securities Act (as defined below) 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
pursuant to Rule 144 of the Securities Act (or any similar
provisions thereunder, but not Rule 144A), and new certificates for
them not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent public distribution of
them shall not require registration under the Securities Act; or
(c) such securities shall have ceased to be
outstanding.
“Sponsor Warrant
Shares” is defined in the recitals to this Agreement;
provided , that any such Sponsor Warrant Shares shall cease
to be Sponsor Warrant Shares when: (a) a Registration
Statement with respect to the sale of such securities shall have
become effective under the Securities Act (as defined below) 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
pursuant to Rule 144 of the Securities Act (or any similar
provisions thereunder, but not Rule 144A), and new certificates for
them not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent public distribution of
them shall not require registration under the Securities Act; or
(c) such securities shall have ceased to be
outstanding.
“Triggering
Holder” is defined in Section 2.1.1.
“Underwriter” means a securities
dealer who purchases any Insider Securities as principal in an
underwritten offering and not as part of such dealer’s
market-making activities.
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2.1 |
Demand Registration . |
2.1.1 General Request for
Registration . At any time and from time to time on or after
the Release Date, either (i) the holders of a
majority-in-interest of, collectively, the Founder Shares and the
Sponsor Warrant Shares beneficially held by the Insiders or the
Permitted Transferees of the Insiders, regardless of whether, in
the case of the Sponsor Warrant Shares, such Sponsor Warrant Shares
remain underlying Sponsor Warrants or (ii) the holders of a
majority-in-interest of the CMA Shares held by the Insiders and the
Permitted Transferees of the Insiders (the holders triggering such
registration are referred to as the “ Triggering
Holders ”) may make a written demand for registration
under the Securities Act of all or part of their Insider Securities
(a “Demand Registration” ). Any demand
for a Demand Registration shall specify the number and type of
Insider Securities proposed to be sold and the intended method(s)
of distribution thereof. The Company will notify all holders of
Insider Securities of any demand pursuant to this
Section 2.1.1 within five (5) Business Days, and each
holder of Insider Securities who wishes to include all or a portion
of such holder’s Insider Securities in such Demand
Registration and is otherwise permitted to do so under this
Agreement (each such holder including Insider Securities in such
Demand Registration, a “Demanding Holder”
) shall so notify the Company within ten (10) Business Days
after the receipt by the holder of the notice from the Company.
Upon any such request, the Demanding Holders shall be entitled
to
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have their Insider Securities included
in the Demand Registration, subject to Section 2.1.4 and the
provisions 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 clause (i) of this
Section 2.1.1 or more than an aggregate of three
(3) Demand Registrations under clause (ii) of this
Section 2.1.1.
2.1.2 Effective
Registration . A registration will not count as 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 such Registration
Statement has been declared effective, the offering of Insider
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) with respect to a Demand Registration, a
majority-in-interest of the Triggering Holders thereafter elect to
continue the offering; provided , further , that the
Company shall 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 otherwise
terminated.
2.1.3 Underwritten
Offering . If a majority-in-interest of the Triggering Holders
so elect and such holders so advise the Company as part of their
written demand for a Demand Registration, the offering of such
Insider Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering. In each such case, the right
of any holder to include such holder’s Insider Securities in
such registration shall be conditioned upon such holder’s
participation in such underwriting and the inclusion of such
holder’s Insider Securities in the underwriting to the extent
provided herein. All Demanding Holders who propose to distribute
their Insider Securities through such an 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.
2.1.4 Reduction of
Offering . If the managing Underwriter 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 Insider Securities which the
Demanding Holders desire to sell taken together with all other
shares of Common Stock or other securities which the Company
desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual
piggy-back registration rights held by other holders of the
Company’s securities who desire to sell securities, exceeds
the maximum dollar amount or maximum number of securities 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 securities, as applicable, the
“Maximum Number of Securities” ), then
the Company shall include in such registration:
(i) first, in the case of a
Demand Registration, the Insider Securities as to which the Demand
Registration has been requested ( pro rata in accordance
with the number of Insider Shares (including Sponsor Warrant Shares
underlying Sponsor Warrants) which such Demanding Holders have
requested be included in such registration, regardless of the
number of Insider Shares (including Sponsor Warrant Shares
underlying Sponsor Warrants) with respect to which such Demanding
Holders have the right to request such inclusion) that can be sold
without exceeding the Maximum Number of Securities;
(ii) second, to the extent
that the Maximum Number of Securities has not been reached under
the foregoing clause (i), the shares of Common Stock or other
securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Securities;
(iii) third, to the extent
that the Maximum Number of Securities has not been reached under
the foregoing clauses (i) and (ii), the shares of Common Stock
or other securities 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 Securities; and
(iv) fourth, to the extent
that the Maximum Number of Securities have not been reached under
the foregoing clauses (i), (ii), and (iii), the shares of Common
Stock or other securities that other shareholders desire to sell
that can be sold without exceeding the Maximum Number of
Securities.
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2.1.5 Withdrawal . In
the case of a Demand Registration, if a majority-in-interest of the
Triggering Holders disapprove of the terms of any underwriting or
are not entitled to include all of their Insider Securities in any
offering, such majority-in-interest of the Triggering Holders 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.
In such event, the Company need not seek effectiveness of such
Registration Statement for the benefit of other Insiders. If the
majority-in-interest of the Triggering Holders withdraws from a
proposed offering relating to a Demand Registration in accordance
with this Section 2.1.5, then such registration shall not
count as a Demand Registration provided for in Section 2.1.1
hereof.
2.2 Piggy-Back
Registration .
2.2.1 Piggy-Back
Rights . If at any time on or after the 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 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 Insider Securities as soon as practicable but in no
event less than ten (10) Business 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 Insider Securities in such notice the opportunity to
register the sale of such number and type of Insider Securities as
such holders may request in writing within five (5) Business
Days following receipt of such notice (a “Piggy-Back
Registration” ). The Company shall cause such Insider
Securities to be included in such registration and shall use
commercially reasonable efforts to cause the managing Underwriter
or Underwriters of a proposed underwritten offering to permit the
Insider 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 Insider Securities in accordance with the
intended method(s) of distribution thereof. All holders of Insider
Securities who propose to distribute securities through a
Piggy-Back Registration that involves an Underwriter or
Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for
such Piggy-Back Registration.
2.2.2 Reduction of
Offering . If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering
advises the Company and the holders of Insider Securities in
writing that the dollar amount or number of shares of Common Stock
which the Company desires to sell, taken together with shares of
Common Stock, if any, as to which registration has been demanded
pursuant to written contractual arrangements with persons other
than the holders of Insider Securities hereunder, the Insider
Securities as to which registration has been requested under this
Section 2.2, and the shares of Common Stock or other
securities, 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
Securities, then the Company shall include in any such
registration:
(i) If the registration is
undertaken for the Company’s account: (A) first, the
shares of Common Stock or other securities that the Company desires
to sell that can be sold without exceeding the Maximum Number of
Securities; (B) second, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clause (A),
the shares of Common Stock and other securities, if any, including
the Insider 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 of Common Stock (including Sponsor Warrant Shares underlying
Sponsor Warrants) which each such person has actually requested to
be included in such registration, regardless of the number of
shares of Common Stock or other securities (including Sponsor
Warrant Shares underlying Sponsor Warrants) with respect to which
such persons have the right to request such inclusion) that can be
sold without exceeding the Maximum Number of Securities;
and
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(ii) If the registration is a
“demand” registration undertaken at the demand of
persons other than the holders of Insider Securities pursuant to
written contractual arrangements with such persons, (A) first,
the shares of Common Stock or other securities for the account of
the demanding persons that can be sold without exceeding the
Maximum Number of Securities; (B) second, to the extent that
the Maximum Number of Securities has not been reached under the
foregoing clause (A), the shares of Common Stock or other
securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Securities; and
(C) third, to the extent that the Maximum Number of Securities
has not been reached under the foregoing clauses (A) and (B),
the Insider Securities as to which registration has been requested
under this Section 2.2 ( pro rata in accordance with
the number of Insider Shares (including Sponsor Warrant Shares
underlying Sponsor Warrants) which each Insider or transferee
thereof shall have requested to be included in such registration,
without giving effect to any other Insider Securities to be
included therein, regardless of the number of Insider Shares
(including Sponsor Warrant Shares underlying Sponsor Warrants) with
respect to which such Insider or transferee thereof shall have the
right to request such inclusion); and (D) fourth, to the
extent that the Maximum Number of Securities has not been reached
under the foregoing clauses (A), (B) and (C), the shares of
Common Stock or other securities, 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
Securities.
2.2.3 Withdrawal . Any
holder of Insider Securities may elect to withdraw such
holder’s request for inclusion of Insider 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
Insider Securities in connection with such Piggy-Back Registration
as provided in Section 3.3.
2.3 Registrations on Shelf
Registration Statement . Subject to the restrictions set forth
in the Stockholders Agreement dated as of the date hereof among the
Company, CMA and Marathon Founders, LLC, the holders of Insider
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 Insider
Securities on a Shelf Registration Statement; provided ,
however , 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 Insider
Securities and, as soon as practicable thereafter, effect the
registration of all or such portion of such holder’s or
holders’ Insider Securities, as the case may be, as are
specified in such request, together with all or such portion of the
Insider Securities of any other holder or holders joining in such
request as are specified in a written request given within five
(5) Business Days after receipt of such written notice from
the Company; provided , however , that the Company
shall not be obligated to effect any such registration pursuant to
this Section 2.3: if the holders of the Insider Securities,
together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Insider
Securities and such other securities (if any) at any aggregate
price to the public of less than $500,000. Registrations effected
pursuant to this Section 2.3 shall not be counted as Demand
Registrations effected pursuant to Section 2.1.
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3. |
REGISTRATION PROCEDURES. |
3.1 Filings;
Information . Whenever the Company is required to effect the
registration of any Insider Securities pursuant to Section 2,
the Company shall use commercially reasonable efforts to effect the
registration and sale of such Insider Securities in accordance with
the intended method(s) of distribution thereof as expeditiously as
practicable, and in connection with any such request:
3.1.1 Filing Registration
Statement . The Company shall, 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 Insider 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 the Company shall have the right to defer any
Demand Registration for up to thirty (30) days, and any
Piggy-Back Registration for such period as may be applicable
to
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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 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;
provided , further , that the Insiders shall provide
at least fifteen (15) Business Days notice of the date on
which they wish the Company to prepare and file a Registration
Statement with the Commission.
3.1.2 Copies . The
Company shall, prior to filing a Registration Statement or
Prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Insider Securities included in such
registration, and such holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and
supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement
(including each preliminary Prospectus), and such other documents
as the holders of Insider Securities included in such registration
or legal counsel for any such holders may reasonably request in
order to facilitate the disposition of the Insider Securities owned
by such holders.
3.1.3 Amendments and
Supplements . The Company shall prepare 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 Insider Securities, and
all 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 eighty (180) 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 Statement, the Company shall
promptly, and in no event more than two (2) Business Days
after such filing, notify the holders of Insider 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
Com
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