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AMENDMENT TO AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

AMENDMENT TO AGREEMENT AND PLAN OF MERGER | Document Parties: MARATHON ACQUISITION CORP. You are currently viewing:
This Agreement and Plan of Merger involves

MARATHON ACQUISITION CORP.

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Title: AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Governing Law: New York     Date: 6/3/2008
Law Firm: Orrick Herrington;Sutherland Asbill;Simpson Thacher    

AMENDMENT TO AGREEMENT AND PLAN OF MERGER, Parties: marathon acquisition corp.
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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:

 

   

Marathon Acquisition Corp. , a Delaware corporation (“ MAQ ”);

 

   

GSL Holdings, Inc. , a corporation organized under the laws of the Republic of the Marshall Islands (the “ Merger Subsidiary ”);

 

   

Global Ship Lease, Inc. , a corporation organized under the laws of the Republic of the Marshall Islands (the “ Company ”); and

 

   

CMA CGM S.A., a société anonyme organized under the laws of France (“ CMA ”).

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.

 

MARATHON ACQUISITION CORP.
By:  

/s/ Michael Gross

Name:   Michael Gross
Title:   Chairman and CEO
GSL HOLDINGS, INC.
By:  

/s/ Michael Gross

Name:  

Michael Gross

Title:  

Chief Executive Officer

CMA CGM S.A.
By:  

/s/ Jean-Yves Schapiro

Name:   Jean-Yves Schapiro
Title:   Executive Vice President, Finance & Control
GLOBAL SHIP LEASE, INC.
By:  

/s/ Ian J. Webber

Name:   Ian J. Webber
Title:   CEO
GLOBAL SHIP LEASE, INC.
By:  

/s/ Serge Corbel

Name:   Serge Corbel
Title:   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:

 

  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.

 

  2. REGISTRATION RIGHTS.

 

  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.

 

  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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