Exhibit 4.4
EQUITY REGISTRATION RIGHTS
AGREEMENT
DATED AS OF APRIL 22,
2004
BY AND AMONG
ATLANTIC EXPRESS TRANSPORTATION
CORP.
ATLANTIC EXPRESS TRANSPORTATION
GROUP, INC.
AND
JEFFERIES & COMPANY,
INC.
This Equity Registration Rights
Agreement (the “ Agreement ”) is made and
entered into as of April 22, 2004, by and among Atlantic Express
Transportation Corp., a New York corporation (the “
Company ”), Atlantic Express Transportation Group,
Inc., a Delaware corporation (“ Parent ”) and
Jefferies & Company, Inc. (the “ Initial Purchaser
”), who has agreed to purchase from the Company, pursuant to
the Purchase Agreement (as defined below) (i) 105,000 fixed rate
units (the “ Fixed Rate Units ”), each Fixed
Rate Unit consisting of (A) $1,000 in aggregate principal amount at
maturity of a 12% Senior Secured Note due 2008 (the “
Fixed Rate Notes ”) of the Company and (B) one 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 (ii) 10,000 floating rate units (the
“ Floating Rate Units ”), each Floating Rate
Unit consisting of (A) $1,000 in aggregate principal amount of
Senior Secured Floating Rate Notes due 2008 (the “
Floating Rate Notes ” and, together with the Fixed
Rate Notes, the “ Notes ”) of the Company and
(B) one Warrant.
This Agreement is made pursuant to
the Purchase Agreement (the “ Purchase Agreement
”), dated as of April 16, 2004, by and among the Company, the
Guarantors named therein and the Initial Purchaser. To induce
the Initial Purchaser to purchase the Units, the Company has agreed
to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth in
Section 3 of the Purchase Agreement. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
to them in the Purchase Agreement.
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.
“ Common Stock
”: The common stock, par value $0.01 per share, of the
Company.
“ Effectiveness Date
”: The 180 th day after the Closing
Date.
“ Exchange Act
”: The Securities Exchange Act of 1934, as
amended.
“ Filing Date ”:
The 90 th 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 ”: means 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 Agreement
”: The Warrant Agreement dated the Closing Date by and
between the Company and The Bank of New York, as Warrant
Agent.
“ 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 Purchase Agreement and the Warrant 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 Commission, 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 Initial
Purchaser and the Holders:
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(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;
(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
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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 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 the Warrant Agent 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 Commission 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
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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 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 Initial Purchaser 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 agreement 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 agreement 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
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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 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 (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 Commission
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.
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(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 Securities Act
