EXECUTION
COPY
INVESTOR RIGHTS
AGREEMENT
INTERPOOL,
INC.
Dated as of September
14, 2004
This INVESTOR RIGHTS AGREEMENT (this “
Agreement ”) is made and entered into as of
September 14, 2004, by and among Interpool, Inc., a Delaware
corporation (the “ Company ”), and the
investors signatory hereto (each, a “ Purchaser
” and collectively, the “Purchasers”), who have
each independently agreed to purchase the Company’s Warrants
issued pursuant to the Warrant Agreement (the “ Warrant
Agreement ”), dated as of the date hereof, between
the Company and U.S. Bank National Association, as warrant agent
(the “ Warrant Agent ”). Each Warrant is
exercisable for one fully paid and non-assessable share of the
Company’s Common Stock (each, a “ Warrant
Share ”).
This Agreement is made pursuant to the Securities Purchase
Agreement, dated September 14, 2004 (the “ Purchase
Agreement ”), by and among the Company and each of
the Purchasers. In order to induce each Purchaser to purchase the
Warrants, the Company has agreed to provide the rights set forth in
this Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Warrant
Agreement.
The
parties hereby agree as follows:
1. DEFINITIONS
As
used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144.
Applicable Rate: means (A) for the first 90 day
period of a Registration Default Period, 0.25% per annum, (B) for
the second 90 day period of a Registration Default Period, 0.50%
per annum, (C) for the third 90 day period of a Registration
Default Period, 0.75% per annum and (D) for any time thereafter,
1.00% per annum, in each case, computed on the basis of a 360-day
year of twelve 30-day months and accruing on a daily basis.
Blackout Period: As defined in Section 3(a)
hereof.
Closing Date: The date hereof.
Commission: The Securities and Exchange
Commission.
Common Stock: The Company's common stock, par value
$0.001 per share.
Common Stock Equivalents: means, with respect to any
Person, securities convertible into, or exchangeable or exercisable
for, shares of capital stock or other equity securities of such
Person (including, without limitation, any note or debt security
convertible into or exchangeable for capital stock or other equity
securities of such Person).
Damages Amount: means for any day during a
Registration Default Period (A) the product of (i) $150,000,000
times (ii) the Applicable Rate divided by (B) the product of (i)
the aggregate number of Warrant Shares for which the aggregate
number of Warrants issued under the Warrant Agreement were
initially exercisable times (ii) 360.
Effective Time: shall mean the time and date as of
which the Commission declares the Registration Statement effective
or as of which the Registration Statement otherwise becomes
effective.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Holders: As defined in Section 2 hereof.
Notice and Questionnaire: shall mean a written notice
and questionnaire delivered to the Company substantially in the
form attached as Annex A hereto.
Person: means any individual, corporation, limited
liability company, limited or general partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivisions
thereof.
Prospectus: means the prospectus included in a
Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Transfer Restricted
Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
Registration Default: As defined in Section 5
hereof.
Registration Default Period: As defined in Section 5
hereof.
Registration Statement: Any registration statement of
the Company relating to the registration for resale of Transfer
Restricted Securities and the issuance of the Company’s
common stock upon the exercise of the Warrants resold pursuant to
the Registration Statement that is filed pursuant to the provisions
of this Agreement and including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Rule 144: means Rule 144 promulgated by the
Commission pursuant to the Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same purpose and effect
as such Rule.
Selling Holder: A Holder who is selling Transfer
Restricted Securities pursuant to Section 3 hereof.
Transfer Restricted Securities: (a) Each Warrant and
Warrant Share held by an Affiliate of the Company and (b) each
other Warrant and Warrant Share until the earlier to occur of (i)
the date on which such Warrant or Warrant Share (other than any
Warrant Share issued upon exercise of a Warrant in accordance with
an effective Registration Statement) has been disposed of in
accordance with a Registration Statement and (ii) the date on which
such Warrant or Warrant Share (or the related Warrant) is
distributed to the public pursuant to Rule 144 under the Act.
2. HOLDERS
A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a “ Holder ”) whenever such Person is the
Holder of record of Transfer Restricted Securities.
3. SHELF REGISTRATION
(a)
Shelf Registration . The Company shall prepare and cause to
be filed with the Commission no later than May 1, 2005 pursuant to
Rule 415 under the Act a Registration Statement on the appropriate
form relating to exercises of Warrants and resales of Transfer
Restricted Securities by the Holders thereof. The Company shall use
all commercially reasonable efforts to cause the Registration
Statement to be declared effective by the Commission no later than
July 1, 2005.
(b)
To the extent necessary to ensure that the Registration Statement
is available for exercises of Warrants and sales of Transfer
Restricted Securities by the Holders thereof entitled to the
benefit of Section 3(a) hereof, the Company shall use all
commercially reasonable efforts to keep any Registration Statement
required by Section 3(a) hereof continuously effective,
supplemented, amended and current as required by and subject to the
provisions of Sections 3(c) and 5(a) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time;
provided, however, that in no event shall the Company be required
to maintain the effectiveness of any Registration Statement
required by Section 3(a) beyond the date that is ten years after
the Closing Date.
(c)
Notwithstanding the foregoing, the Company may, upon advising the
Purchasers in writing, pursuant to the advice of outside counsel to
the Company, delay the filing or effectiveness of any Registration
Statement (if not filed or effective, as applicable) or suspend, or
otherwise fail to maintain, the effectiveness thereof, for a period
(each, a " Blackout Period ") not to exceed (i) an
aggregate of 15 days in any fiscal quarter during which the Company
is not eligible to use Form S-3 or (ii) 45 consecutive days in any
six-month period during which the Company is eligible to use Form
S-3, provided, that there shall be at least 60 days during which
any Registration Statement is effective and usable between any two
Blackout Periods under this clause (ii), in the event that (x) the
Board of Directors of the Company reasonably and in good faith
determines that the premature disclosure of a material event at
such time would have a material adverse effect on the Company's
business, operations or prospects or (y) the disclosure otherwise
relates to a material business transaction which has not been
publicly disclosed and the Board of Directors of the Company
reasonably and in good faith determines that any such disclosure
would jeopardize the success of such transaction; provided, that,
upon the termination of such Blackout Period, the Company promptly
shall advise the Purchasers that such Blackout Period has been
terminated. Notwithstanding the foregoing, in no event will the
aggregate number of days covered by Blackout Periods exceed 90 days
in any twelve-month period.
4. REGISTRATION
PROCEDURES
(a)
In connection with the Registration Statement and any related
Prospectus required by this Agreement, the Company shall, as soon
as practicable (or as otherwise specified) subject to the
provisions of Section 3(c):
(i)
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof;
(ii)
not less than 30 calendar days prior to the Effective Time of the
Registration Statement, mail the Notice and Questionnaire to the
holders of Transfer Restricted Securities; no holder shall be
entitled to be named as a selling securityholder in the
Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for
resales of Transfer Restricted Securities at any time, unless such
holder has returned a completed and signed Notice and Questionnaire
to the Company by the deadline for response set forth therein;
provided, however, holders of Transfer Restricted Securities shall
have at least 28 calendar days from the date on which the Notice
and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii)
after the Effective Time of the Registration Statement, upon the
request of any holder of Transfer Restricted Securities that is not
then a Selling Holder, promptly send a Notice and Questionnaire to
such holder; provided that the Company shall not be required
to take any action to name such holder as a selling securityholder
in the Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Transfer
Restricted Securities until such holder has returned a completed
and signed Notice and Questionnaire to the Company;
(iv)
as soon as practicable prepare and file with the Commission such
amendments and supplements to such Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Registration Statement for the
period specified in Section 3(b) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Registration Statement,
to comply fully with Rules 424, 430A and 462, as applicable under
the Act in a timely manner, and furnish to the Selling Holders
copies of any such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission;
(v)
comply with the provisions of the Act with respect to the
disposition of all of the Transfer Restricted Securities covered by
such Registration Statement in accordance with the intended methods
of disposition by the Selling Holders provided for in such
Registration Statement;
(vi)
provide (A) the Selling Holders, (B) the underwriters (which term,
for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(a)(11) of the Act),
if any, thereof, (C) any sales or placement agent therefor, (D)
counsel for any such underwriter or agent and (E) not more than one
counsel for all the Selling Holders the opportunity to participate
in the preparation of such Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
(vii)
for a reasonable period prior to the filing of such Registration
Statement, and throughout the period specified in Section 3(b),
make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the
persons referred to in Section 4(a)(vi) who shall certify to the
Company that they have a current intention to sell the Transfer
Restricted Securities pursuant to the Registration such financial
and other information and books and records of the Company, and
cause the officers, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Act;
provided, however, that each such party shall agree in
writing to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such
Registration Statement or the prospectus included therein or in an
amendment to such Registration Statement or an amendment or
supplement to such prospectus in order that such Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing; provided, further, that each
such person described in Section 4(a)(vii) shall be required to
agree in writing that such information obtained by it as a result
of such inspections shall not be used by it as the basis for any
market transaction in the securities of the Company unless and
until such is made generally available to the public and each such
person will be required to further agree in writing that it will,
upon learning that disclosure of any confidential information is
sought in a court of competent jurisdiction or by any governmental
entity, give notice to the Company and allow the Company at its
expense to undertake appropriate action to prevent disclosure of
such confidential information;
(viii)
promptly notify each of the Selling Holders, any sales or placement
agent therefor and any underwriter thereof (which notification may
be made through any managing underwriter that is a representative
of such underwriter for such purpose) and confirm such advice in
writing, (A) when such Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission
and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such Registration Statement or
prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 4(a)(xvii) or Section 7(a)(i) cease to be true and correct
in all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Transfer Restricted Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose,
or (F) if at any time when a prospectus is required to be delivered
under the Act, that such Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements
of the Act or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix)
use all commercially reasonable efforts to obtain the withdrawal or
lifting of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if
requested by any managing underwriter or underwriters, any
placement or sales agent or any Selling Holder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Selling Holder specifies should be
included therein relating to the terms of the sale of such Transfer
Restricted Securities, including information with respect to the
amount of Transfer Restricted Securities being sold by such Selling
Holder or agent or to any underwriters, the name and description of
such Selling Holder, agent or underwriter, the offering price of
such Transfer Restricted Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any
other terms of the offering of the Transfer Restricted Securities
to be sold by such Selling Holder or agent or to such underwriters;
and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment;
(xi)
furnish to each Selling Holder, each placement or sales agent, if
any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 4(a)(vi) an executed copy (or, in
the case of a Selling Holder, a conformed copy) of such
Registration Statement, each such amendment and supplement thereto
(in each case including all exhibits thereto (in the case of a
Selling Holder of Transfer Restricted Securities, upon request) and
documents incorporated by reference therein) and such number of
copies of such Registration Statement (excluding exhibits thereto
and documents incorporated by reference therein unless specifically
so requested by such Selling Holder, agent or underwriter, as the
case may be) and of the prospectus included in such Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Act and such other documents, as
such Selling Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and
disposition of the Transfer Restricted Securities owned by such
Selling Holder, offered or sold by such agent or underwritten by
such underwriter and to permit such Selling Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Act; and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Selling Holder and by
any such agent and underwriter, in each case in the form most
recently provided to such person by the Company, in connection with
the offering and sale of the Transfer Restricted Securities covered
by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xii)
use all commercially reasonable efforts to (A) register or qualify
the Transfer Restricted Securities to be included in such
Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Selling Holder and each placement or
sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Registration is required to
remain effective under Section 3(b) above and for so long as may be
necessary to enable any such Selling Holder, agent or underwriter
to complete its distribution of Securities pursuant to such
Registration Statement and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each such
Selling Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Transfer
Restricted Securities; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
4(a)(xii), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii)
use all commercially reasonable efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Registration or
the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the
disposition of, their Transfer Restricted Securities;
(xiv)
unless any Transfer Restricted Securities shall be in book-entry
only form, cooperate with the Selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates, if so required by any
securities exchange upon which any Transfer Restricted Securities
are listed, shall be penned, lithographed or engraved, or produced
by any combination of such methods, on steel engraved borders, and
which certificates shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Transfer
Restricted Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two
business days prior to any sale of the Transfer Restricted
Securities;
(xv)
provide a CUSIP number for all Transfer Restricted Securities, not
later than the applicable Effective Time and provide the Warrant
Agent with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with The
Depository Trust Company;
(xvi)
enter into one or more underwriting agreements, engagement letters,
agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as any Selling Holders shall
request in order to expedite or facilitate the disposition of such
Transfer Restricted Securities;
(xvii)
whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of
the offering contemplated by the Registration is an underwritten
offering or is made through a placement or sales agent or any other
entity, (A) make the appropriate officers of the Company available
to such Holders and underwriters for meetings with prospective
purchasers of the Transfer Restricted Securities and preparing and
presenting to potential investors customary "road show" material in
a manner consistent with other new issuances of other securities
similar to the Transfer Restricted Securities, (B) make such
representations and warranties to the Selling Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made
in connection with an offering of securities pursuant to any
appropriate agreement or to a registration statement filed on the
form applicable to the Registration; (C) obtain an opinion of
counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as Selling Holder may reasonably request,
addressed to such Selling Holder or Selling Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such Registration
Statement (and if such Registration Statement contemplates an
underwritten offering of a part or all of the Transfer Restricted
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall include the due incorporation and
good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact
business as foreign corporations in specified jurisdictions; the
due authorization, execution and delivery of the relevant agreement
of the type referred to in Section 4(a)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the Company;
the absence of governmental approvals required to be obtained in
connection with the Registration, the offering and sale of the
Transfer Restricted Securities, this Investor Rights Agreement or
any agreement of the type referred to in Section 4(a)(xvi) hereof,
except such approvals as may be required under state securities or
blue sky laws; the material compliance as to form of such
Registration Statement and any documents incorporated by reference
therein with the requirements of the Act, as of the date of the
opinion and of the Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence
from such Registration Statement and the prospectus included
therein, as then amended or supplemented, and from the documents
incorporated by reference therein (in each case other than the
financial statements and other financial information contained
therein) of an untrue statement of a material fact or the omission
to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light
of the circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)) (it being
understood that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (D) obtain a
"cold comfort" letter or letters from the independent certified
public accountants of the Company addressed to the Selling Holders,
the placement or sales agent, if any, therefor or the underwriters,
if any, thereof, dated (i) the effective date of such Registration
Statement and (ii) the effective date of any prospectus supplement
to the prospectus included in such Registration Statement or
post-effective amendment to such Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus (and, if such Registration Statement
contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Registration
Statement or post-effective amendment to such Registration
Statement which includes unaudited or audited financial statements
as of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters
of the type customarily covered by letters of such type; (E)
deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Selling Holders
or the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (B) above or
those contained in Section 7(a)(i) hereof and the compliance with
or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the
Company; and (F) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 8 hereof;
(xviii) notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any
provision of this Investor Rights Agreement pursuant to Section
10(c) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix)
in the event that any broker-dealer registered under the Exchange
Act shall underwrite any Transfer Restricted Securities or
participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Conduct Rules (the "Conduct Rules) of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such
Transfer Restricted Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker-dealer in complying with the requirements of
such Conduct Rules, including by providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Conduct Rules;
