Exhibit 4.5
EQUITY
REGISTRATION RIGHTS AGREEMENT
DATED
AS OF MARCH 3, 2005
BY AND
AMONG
ATLANTIC EXPRESS
TRANSPORTATION CORP.
ATLANTIC EXPRESS
TRANSPORTATION GROUP, INC.
AND
AIRLIE
OPPORTUNITY CAPITAL MANAGEMENT, L.P.
This Equity
Registration Rights Agreement (this “Agreement”) is
made and entered into as of March 3, 2005, by and among
Atlantic Express Transportation Corp., a New York corporation (the
“Company”), Atlantic Express Transportation Group,
Inc., a Delaware corporation (“Parent”), and Airlie
Opportunity Capital Management, L.P., a Delaware limited
partnership (the “Investor”).
WHEREAS, pursuant
to the Note and Warrant Purchase Agreement, dated the date hereof
(the “Investment Agreement”), among the Company, Parent
and Investor, Investor has agreed to make a loan (the
“Loan”) to the Company in the principal amount of
$15,000,000, in partial consideration for which the Company has
agreed to issue 40,725 warrants, each such warrant representing the
right to initially purchase one common share, par value $0.01 per
share (the “Common Stock”) of the Company
(collectively, the “Warrants”) (the Common Stock
issuable on exercise of the Warrants being referred to collectively
herein as the “Warrant Shares”); and
WHEREAS, it is a
condition precedent to Investor’s obligations to make the
Loan and consummate the other transactions contemplated by the
Investment Agreement that the Company and Parent enter into this
Agreement.
NOW, THEREFORE to
induce Investor to make the Loan, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
Section 1.
Definitions.
As used in this
Agreement, the following capitalized terms shall have the following
meanings:
“Affiliate”: As defined in
Rule 144 of the Securities Act.
“Closing
Date”: The date hereof.
“Effectiveness Date”: The 180th day
after the Closing Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as
amended.
“Existing Equity
Registration Rights Agreement”: The Equity Registration
Rights Agreement dated as of April 22, 2004 among the Company,
Parent and Jeffries & Company, Inc.
“Filing
Date”: The 90th day after the Closing Date.
“Holder”: As defined in
Section 2 hereof.
“NASD”: means the National
Association of Securities Dealers, Inc.
“Person”: Any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other
entity.
“Piggy-Back
Registration”: As defined in Section 6
hereof.
“Prospectus: The prospectus
included in a Registration Statement at the time such Registration
Statement is declared effective, as supplemented by any prospectus
supplement, and all material incorporated by reference into such
prospectus.
“Public
Equity Offering”: An underwritten offering of Common
Stock or common stock of the Parent pursuant to a registration
statement that has been declared effective by the SEC pursuant to
the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any
employee benefit plan of the Company or the Parent).
“Registrable
Securities”: At any time, any of (i) the Warrant Shares
(whether or not the related Warrants have been exercised) and (ii)
any other securities issued or issuable with respect to any Warrant
Shares by way of stock dividends or stock split or in connection
with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any
particular Registrable Securities, such securities shall cease to
be Registrable Securities when (a) a Registration Statement with
respect to the offering of such securities by the Holder thereof
shall have been declared effective under the Securities Act and
such securities shall have been disposed of by such Holder pursuant
to such Registration Statement, (b) such securities have been sold
to the public pursuant to Rule 144(k) (or any similar provisions
then in force, but not Rule 144A) promulgated under the Securities
Act, (c) such securities shall have been otherwise transferred by
the Holder thereof and new certificates for such securities not
bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent and subsequent
disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law
then in force or (d) such securities shall have ceased to be
outstanding.
“Registrants”: means,
collectively, the Company and the Parent in the case of a
Registration Statement filed or to be filed registering a Public
Equity Offering of the Parent, upon which Registration Statement a
Holder is entitled pursuant to this Agreement to request inclusion
of its Registrable Securities for offer and sale
thereunder.
“Registration Statement”: Any
registration statement of the Company and/or the Parent relating
to, or entitling a Holder to request, the registration for resale
of Registrable Securities, including the Prospectus included
therein, all amendments thereto (including post-effective
amendments) and all exhibits and all material incorporated by
reference therein.
“Restricted
Securities”: As defined in Rule 144 of the Securities
Act.
“SEC”: The Securities and
Exchange Commission.
“Securities
Act”: The Securities Act of 1933, as
amended.
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“Shelf
Registration Statement”: As defined in
Section 4 hereof.
“Warrant
Shares”: The Common Stock or other securities that any
Holder may acquire upon exercise of a Warrant, together with any
other securities which such Holder may acquire on account of any
such securities, including, without limitation, as the result of
any dividend or other distribution on Common Stock or any split or
combination of such Common Stock as provided for in the Warrant
Agreement.
“Warrants”: The warrants of
the Company issued and sold pursuant to the Investment Agreement,
together with any warrants issued in substitution or replacement
therefor.
Section 2.
Holders of Registrable Securities.
A Person is deemed
to be a Holder of Registrable Securities (a “Holder”)
whenever such Person owns Registrable Securities or has the right
to acquire such Registrable Securities by exercising Warrants held
by such Person, whether or not such acquisition has actually been
effected.
Section 3.
Registration Procedures.
In connection with
any Registration Statement filed by the Company, the Company shall,
and in connection with any Registration Statement filed by the
Parent, the Registrants, shall:
(a)
(i)
furnish to the Holders, prior to the filing thereof with the SEC, a
copy of the Registration Statement (including all such documents
incorporated therein by reference) and each amendment thereof and
each supplement, if any, to the Prospectus, which documents will be
subject to the review and comment of such Holders in connection
with such sale, if any, for a period of at least five business
days, and the Company or the Registrants (as the case may be) will
not file any such Registration Statement or related Prospectus or
any amendment or supplement to any such Registration Statement or
Prospectus (including all documents incorporated therein by
reference) to which such selling Holders shall reasonably object
within five business days after the receipt thereof; and (ii)
include the names of the Holders who propose to sell Registrable
Securities pursuant to the Registration Statement as selling
securityholders. A selling Holder shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, related Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading or fails to comply with the
applicable requirements of the Securities Act;
(b)
give written notice to the Investor and the Holders:
(i)
when the Registration Statement or any amendment thereto has been
filed with the SEC and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii)
of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information;
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(iii)
of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose;
(iv)
of the receipt by the Company or the Registrants (as the case may
be) or its or their legal counsel of any notification with respect
to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v)
of the happening of any event that requires the Company or the
Registrants (as the case may be) to make changes in the
Registration Statement or the Prospectus in order that the
Registration Statement or the Prospectus does not contain an untrue
statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading;
(c)
make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness
of the Registration Statement;
(d)
furnish to each Holder, without charge, at least one copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference);
(e)
during the period which the Registration Statement is effective,
deliver to each Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in the
Registration Statement as such Holder may reasonably request.
The Company or the Registrants (as the case may be) consent,
subject to the provisions of this Agreement, to the use of the
Prospectus by each of the Holders in connection with the offering
and sale of Registrable Securities;
(f)
prior to any public offering of the Registrable Securities pursuant
to any Registration Statement, register or qualify or cooperate
with the Holders and their respective counsel in connection with
the registration or qualification of the Registrable Securities for
offer and sale under the securities or “blue sky” laws
of such states of the United States as any Holder reasonably
requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities; provided, however,
that the Company or the Registrants (as the case may be) shall not
be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject;
(g)
cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to
be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and
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registered in such names as the Holders may
request a reasonable period of time prior to sales of the
Registrable Securities pursuant to such Registration
Statement;
(h)
upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which
the Company or the Registrants (as the case may be) are required to
maintain an effective Registration Statement, promptly prepare and
file a post-effective amendment to the Registration Statement or a
supplement to the related Prospectus and any other required
document so that, as thereafter delivered to Holders or purchasers
of Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading;
(i)
not later than the effective date of the Registration Statement,
provide a CUSIP number for the Registrable Securities and provide
each Holder with printed certificates for the Registrable
Securities, in a form eligible for deposit with The Depository
Trust Company;
(j)
use its reasonable best efforts to comply with all rules and
regulations of the SEC to the extent and so long as they are
applicable to the Registration Statement and will make generally
available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a)
of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company’s first fiscal
quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period;
(k)
require, at its option, each Holder of Registrable Securities to be
sold pursuant to a Registration Statement to furnish to the Company
or the Registrants (as the case may be) such information as may be
required under applicable requirements of the SEC and to obtain any
acceleration of the effective date of a Registration Statement, and
the Company may exclude from such registration the Registrable
Securities of any Holder that unreasonably fails to furnish such
information within 20 days after receiving such request;
(l)
enter into such customary agreements and take all such other
action, if any, in order to facilitate the disposition of the
Registrable Securities pursuant to any Registration Statement;
(m)
(i)
make reasonably available for inspection by the Holders of the
Registrable Securities and any attorney, accountant or other agent
retained by the Holders of the Registrable Securities all relevant
financial and other records, pertinent corporate documents and
properties of the Company or the Registrants (as the case may be)
and (ii) cause the officers, directors, employees, accountants and
auditors of the Company or the Registrants (as the case may be) to
supply all relevant information reasonably requested by the Holders
of the Registrable Securities or any such attorney, accountant or
agent in connection with the Registration Statement, in each case,
as shall be reasonably necessary
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to
enable such Persons, to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering
shall be coordinated by the Investor and on behalf of the other
parties, by one counsel selected by of such other parties;
provided further , however , that any such
records, documents, properties and such information that is
designated in writing by the Company or the Registrants (as the
case may be), in good faith, as confidential at the time of
delivery of such records, documents, properties or information
shall be kept confidential by any such Persons and shall be used
only in connection with such Registration Statement, unless
disclosure thereto is made in connection with a court proceeding or
required by law (it being understood that such Persons (and any
employee, representative or other agent of such Person) may
disclose to any and all Persons, without limitation of any kind,
the tax treatment and tax structure of the transactions
contemplated in the Registration Statement and all materials of any
kind (including such records, documents, properties or information
and opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure), or such
information has become available (not in violation of this
Agreement) to the public generally or through a third party without
an accompanying obligation of confidentiality; and
(n)
if requested by any Holder of Registrable Securities, cause (i) its
counsel to deliver an opinion and updates thereof relating to the
Registrable Securities in customary form addressed to such Holders
thereof and dated, in the case of the initial opinion, the
effective date of such Registration Statement (it being agreed that
the matters to be covered by such opinion shall include, without
limitation, the due incorporation and good standing of the Company
or the Registrants (as the case may be) and its or their
subsidiaries; the qualification of the Company or the Registrants
(as the case may be) and its or their subsidiaries to transact
business as foreign corporations; the due authorization, execution
and delivery of the relevant document of the type referred to in
Section 3(a) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability,
of the applicable Securities; the absence of material legal or
governmental proceedings involving the Company or the Registrants
(as the case may be) and its or their subsidiaries; the absence of
governmental approvals required to be obtained in connection with
the Registration Statement, the offering and sale of the applicable
Registrable Securities, or any document of the type referred to in
Section 3(a) hereof; the compliance as to form of such
Registration Statement and any documents incorporated by reference
therein; and, as of the date of the opinion and as of the effective
date 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 any documents incorporated by
reference therein of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the prospectus, in light of the circumstances under which they were
made) not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents
were filed with the SEC under the Exchange Act); (ii) its
independent public accountants to provide to the Holders a comfort
letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement
of Auditing
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Standards No. 72; and (iii) use its best
efforts to cause the disposition of the Registrable Securities
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities.
If any such
Registration Statement refers to any Holder by name or otherwise as
the holder or any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to
be construed as a recommendation by such Holder of the investment
quality of the Company’s securities covered thereby and that
such holding does not imply that such Holder will assist in meeting
any future financial requirements of the Company, or (ii) in the
event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any similar Federal statute
then in force, the deletion of the reference to such Holder in any
amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be
required.
Section 4.
Shelf Registration .
(a)
The Company shall use its reasonable best efforts to (i) on or
before the Filing Date, prepare and cause to be filed with the SEC
pursuant to Rule 415 under the Securities Act a shelf registration
statement on the appropriate form relating to resales of all
Registrable Securities or an amendment to a previously filed shelf
registration statement on the appropriate form, amending such
registration statement to cover resales of all Registrable
Securities (the “Shelf Registration Statement”), (ii)
cause the Shelf Registration Statement to be declared effective
under the Securities Act on or prior to the Effectiveness Date and
(iii) keep any Shelf Registration Statement required by this
Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of
Section 4(a) hereof and in conformity with the
requirements of this Agreement, the Securities Act and the rules
and regulations of the SEC promulgated thereunder from time to time
(including (A) preparing and filing with the SEC such amendments
and post-effective amendments to the Shelf Registration Statement
as may be necessary to keep such Shelf Registration Statement
effective; (B) cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and complying fully
with Rules 424, 430A and 462, as applicable, under the Securities
Act in a timely manner; and (C) comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Shelf Registration Statement), until the second
anniversary of the effective date of such Shelf Registration
Statement; provided that such obligation shall expire before such
date if all the Registrable Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii)
are no longer Restricted Securities.
(b)
No Holder may include any of its Registrable Securities in any
Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 20
days after receipt of a request therefor, the information specified
in Item 507 or 508 of Regulation S-K, as applicable, of the
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Securities Act for use in connection with any
Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each selling Holder agrees to
promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company
by such Holder not materially misleading.
(c)
The Company shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the
requisite peri
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