Exhibit 10.5
THE GREENBRIER COMPANIES, INC.
REGISTRATION RIGHTS
AGREEMENT
This REGISTRATION
RIGHTS AGREEMENT (this “ Agreement ”) is made
effective as of April 20, 2005, by and among The Greenbrier
Companies, Inc., a Delaware corporation (the “
Company ”), and George L. Chelius and Eric Epperson,
not in their individual capacities but solely in their capacities
as executors of the will and estate of Alan James, pursuant to
Letters Testamentary (Case Number 050290219), dated
February 17, 2005, issued by the Circuit Court of the State of
Oregon for the County of Multnomah (the “ Estate
”) and in their capacities as trustees under any trusts
(“ Trusts ” and each a “ Trust
”) created under the last will and testament of Alan James,
dated March 12, 2004 (the “ Representatives
” and each a “ Representative
”).
WHEREAS, the
Company, the Representatives and William A. Furman have entered
into a Settlement Agreement, dated as of
April , 2005 (the “ Settlement
Agreement ”), which provides for the Company and the
Representatives to enter into a registration rights agreement in
the form of this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained herein
and in the Settlement Agreement, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Certain Definitions . As used in this Agreement, the
terms below shall have the following respective meanings:
(a)
“
Affiliate ” means an “affiliate” as
defined under Rule 144.
(b)
“
Commission ” means the Securities and Exchange
Commission or any other federal agency at the time administering
the Securities Act.
(c)
“ Company
Registration Expenses ” means all expenses incurred by
the Company in complying with its obligations hereunder, including
without limitation, all registration, qualification, listing and
filing fees, printing expenses, fees and disbursements of counsel
for the Company, fees and expenses of the independent auditors of
the Company (including the expenses of preparing and delivering
comfort letters), blue sky fees and expenses, and the expense of
any special audits incident to or required by any such
registration.
(d)
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended, or any successor federal rule or statute and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
(e)
“
Indemnified Party ” means each party entitled to
indemnification under Section 5 .
(f)
“
Indemnifying Party ” means each party required to
provide indemnification under Section 5 .
(g)
“
Offering ” means the “Offering,” as that
term is defined in the Stock Purchase Agreement referred to in the
Settlement Agreement.
(h)
“ Offering
Period ” means the 60-day period commencing from the date
the Prospectus Supplement is first filed with the Commission as
such period may be extended by mutual agreement of the
Representatives and the Company.
(i)
“ Prospectus
Supplement ” means the prospectus supplement to be filed
with the Commission pursuant to Section 1.3 of the Settlement
Agreement.
(j)
“
Registrable Securities ” means the shares of the
Company’s common stock owned by Alan James upon his death and
subsequently vested in the beneficiaries of the Estate subject to
administration of the Estate by the Representatives.
(k)
“
Rule 144 ” means Rule 144 under the
Securities Act.
(l)
“ Resale
Registration Statement ” means a registration statement
on Form S-3 under the Securities Act, or any successor
form.
(m)
“ Securities
Act ” means the Securities Act of 1933, as amended, or
any successor federal rule or statute and the rules and
regulations of the Commission thereunder, all as the same shall be
in effect at the time.
2.
Registration on Form S-3 .
(a)
Request for
Registration . Pursuant to Section 1.5 of
the Settlement Agreement, for so long as the Representatives hold
subject to administration in the Estate at least 500,000 shares of
Registrable Securities and the Company has advised the
Representatives that it believes the Representatives are
Affiliates, then the Representatives shall have the right, by
written notice delivered to the Company (the “
Registration Notice ”), to require the Company to
register under and in accordance with the provisions of the
Securities Act all of the Registrable Securities. The
Representatives shall have the right to give only one Registration
Notice. The Registration Notice must specify (i) the
legal name of the Representatives or the trustees (the “
Trustees ”) or any Trust seeking such registration,
(ii) the number of shares of Registrable Securities to be
registered, and (iii) the intended methods of disposition
thereof. The Registration Notice may be delivered at any time
following the first to occur of (x) the 60th day after completion
of the Offering, or (y) the failure of the Company to complete the
Offering within the Offering Period.
(b)
Filing and
Effectiveness . Upon receipt of the Registration
Notice, the Company shall promptly, but in no event later than 30
days after the receipt of the Registration Notice, file with the
Commission a Resale Registration Statement to provide for the
resale by the Representatives or the Trustees of the Registrable
Securities and will use its commercially reasonable efforts to
cause such Resale Registration Statement to become effective as
promptly as practicable thereafter; provided that the Company shall not
request the Commission to accelerate the effective date of the
Resale Registration Statement until it has been authorized to do so
by the Representatives. The Company
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shall, subject to
Section 2(c) , use its commercially reasonable efforts
to keep such Resale Registration Statement effective until the
earlier of (i) such date as the Representatives and the
Trustees own less than 500,000 shares of Registrable Securities in
the aggregate, (ii) such date the Company advises the
Representatives that it does not believe the Representatives are
Affiliates, or (iii) 24 months following the date such Resale
Registration Statement is declared effective.
(c)
Suspension of
Registration Rights . Notwithstanding anything in this Agreement to
the contrary, if the Company furnishes to the Representatives a
certificate signed by the Chief Executive Officer and Chief
Financial Officer of the Company stating that, in the good faith
reasonable judgment of the Chief Executive Officer and Chief
Financial Officer, after consultation with the Company’s
advisors and the Board of Directors of the Company, it would be
seriously detrimental to the Company for the Resale Registration
Statement to be effected, due to (A) the existence of a
material development or potential material development involving
the Company that the Company would be obligated to disclose in the
prospectus contained in the Resale Registration Statement, which
premature disclosure, in the good faith judgment of the Board of
Directors, would reasonably be expected to have an adverse effect
on the Company or (B) the existence of other facts or
circumstances as a result of which the prospectus contained in the
Resale Registration Statement includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made
or then existing, then the Company shall have the right (i) in
the event of (A) above, to defer the filing of the Resale
Registration Statement (or suspend sales under the filed Resale
Registration Statement or defer the updating of the filed Resale
Registration Statement and suspend sales thereunder), or
(ii) in the event of (B) above, suspend sales under the
filed Resale Registration Statement, in each case until the earlier
of (1) the date on which such material information is
disclosed to the public or ceases to be material or (2) the
30th calendar day after the date of the certificate delivered
pursuant to this Section 2(c) . The
Representatives shall keep the fact and content of any such notice
and the event or circumstances giving rise to any such notice
confidential; provided that, the Representatives may disclose the
fact and content of any such notice to their advisors and as
otherwise required by law. Notwithstanding the foregoing, the
Company shall not defer the filing of the Resale Registration
Statement, suspend sales under the Resale Registration Statement,
defer the updating of the filed Resale Registration Statement or
suspend sales under the Resale Registration Statement for more than
an aggregate of 60 days during any 365-day period.
(d)
Registration
Procedures . In connection with any registration required
under this Agreement, the Company shall take the actions set forth
below.
(i)
The Company shall
notify the Representatives in writing promptly of any stop order
issued or threatened by the Commission or other suspension of
effectiveness of the Resale Registration Statement and will take
commercially reasonable actions necessary or appropriate to prevent
the entry of such stop order or to remove it as soon as practicable
if entered and will notify the Representatives in writing promptly
of the resolution of such situation.
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(ii)
The Company shall
furnish to the Representatives (A) promptly after the same is
prepared and publicly distributed, filed with the Commission, or
received by the Company, one copy of the Resale Registration
Statement and any amendment thereto, each prospectus and each
amendment or supplement thereto, and, as promptly as practicable
after the date of effectiveness of the Resale Registration
Statement or any amendment thereto, a written notice stating that
the Resale Registration Statement or amendment thereto has been
declared effective, and (B) such number of copies of such
Resale Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), and the
prospectus included in such registration statement, in conformity
with the requirements of the Securities Act, and such other
documents as the Representatives may reasonably request in order to
facilitate the disposition of the Registrable Securities.
Such delivery of documents pursuant to (B) above shall be made
by the Company within three (3) trading days of receipt of a
request therefor from the Representatives.
(iii)
The Company shall use
its commercially reasonable efforts to register or qualify the
Registrable Securities under the securities or “blue
sky” laws of each State of the United States of America that
the Representatives may reasonably request, and shall do any and
all other acts and things which may be reasonably necessary or
advisable to enable the Representa
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