EX-10.2



 







Exhibit 10.2




REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (this “Agreement”) is dated as of March 15, 2005, by and
among Crystal River Capital, Inc., a Maryland corporation (the “Company”), Deutsche Bank Securities
Inc. (“Deutsche Bank”) and Wachovia Capital Markets, LLC (“Wachovia” and, together with Deutsche
Bank the “Initial Purchasers”) and Hyperion Crystal River Capital Advisors, LLC, a Delaware limited
liability company (“Hyperion Crystal River”) for the benefit of the Initial Purchasers and the
Holders (as defined below) .



          A. This Agreement is entered into in connection with the Purchase/Placement Agreement dated as
of March 8, 2005 (the “Purchase Agreement”) between the Company, the Initial Purchasers and
Hyperion Crystal River Capital Advisors, LLC (“Hyperion Crystal River”) which provides for the
offering and sale (the “Offering”) of up to 17,400,000 shares (including the over-allotment option
granted to the Initial Purchasers, as described therein) of common stock, par value $0.001 per
share, of the Company (“Common Stock”).



          B. In order to induce the investors who are purchasing the Common Stock in the Offering to
purchase such Common Stock and the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights provided for in this Agreement for the
holders of Registrable Shares (as defined below) .



          C. The execution and delivery of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.



          NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties
hereto, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



          1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:




     Additional Mandatory Shelf Registration Statement: As defined in Section
2(b)(iv) herein.




     Additional Shares: Shares of Common Stock or other securities issued in
respect of the Shares by reason of or in connection with any stock dividend, stock
distribution, stock split, or similar issuance.




     Agreement: As defined in the Introductory Paragraph of this Agreement.




     Affiliate: As to any specified Person, (i) any Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or is
under common control with, the specified Person, (ii) any



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executive officer, director, trustee, managing member or general partner of
the specified Person and (iii) any legal entity for which the specified Person
acts as an executive officer, director, trustee, managing member or general
partner. For purposes of this definition, “control” (including the correlative
meanings of the terms “controlled by” and “under common control with”), as used
with respect to any Person, shall mean the possession, directly, or indirectly
through one or more intermediaries, of the power to direct or cause the direction
of the management and policies of such Person, whether by contract, through the
ownership of voting securities, partnership interests, membership interests or
other equity interests or otherwise.




     Business Day: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in New York, New York are authorized or obligated by applicable law,
regulation or executive order to close.




     Commission: The Securities and Exchange Commission. Common Stock: As
defined in Recital A hereof.




     Company: As defined in the Introductory Paragraph of this Agreement, and any
successor thereto.




     Deutsche Bank: As defined in the Introductory Paragraph of this Agreement,
and any successor thereto.




     End of Suspension Notice: As defined in Section 5(b) hereof.




     Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.




     Holder: Each Participant and its direct or indirect transferees, so long as
such Participant or transferee owns any Registrable Shares and, Hyperion Crystal
River, and its direct or indirect designees or transferees, so long as Hyperion
Crystal River or any such designee or transferee own any Management Agreement
Shares.




     Hyperion Crystal River: As defined in the Introductory Paragraph of this
Agreement, and any successor thereto.




     Indemnified Party: As defined in Section 6(a) hereof.




     IPO Registration Statement: As defined in Section 2 hereof.




     Management Agreement: That certain agreement dated March 15, 2005 by and
between the Company and Hyperion Crystal River.



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     Management Agreement Shares: The shares of Common Stock issued to Hyperion
Crystal River or its designees pursuant to Section 8 of the Management Agreement.




     Mandatory Shelf Registration Statement: As defined in Section 2(a ) hereof.




     NASD: The National Association of Securities Dealers, Inc.




     Offering: As defined in Recital A hereof.




     Participants: The purchasers in the Offering of: (i) the Regulation D
Shares from the Company ( including certain members of management of Hyperion
Capital Management, Inc. and an affiliate of Brascan Strategic Asset Management)
and (ii) Rule 144A Shares and Regulation S Shares from the Initial Purchasers.




     Person: An individual, partnership, corporation, limited liability company,
trust, unincorporated organization, government or agency or political subdivision
thereof, or any other legal entity.




     Prospectus: The prospectus included in any Registration Statement, including
any preliminary prospectus, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such prospectus.




     Purchase Agreement: As defined in Recital A of this Agreement, as amended
from time to time.




     Registrable Shares: Each of the Shares, any Additional Shares and any
Management Agreement Shares, upon original issuance thereof, and at all times
subsequent thereto, including upon the transfer thereof by the original holder or
any subsequent holder, until, in the case of any such Shares or Additional Shares,
as applicable, the earliest to occur of:




               (i) the second anniversary of the initial effective date of the Mandatory
Shelf Registration Statement;




               (ii) the date on which such Shares, Additional Shares or any Management
Agreement Shares have been sold pursuant to a Registration Statement or
distributed to the public pursuant to Rule 144;




               (iii) the date on which, in the opinion of counsel to the Company, such
Shares, Additional Shares or Management Agreement Shares not held by Affiliates of
the Company are saleable pursuant to subparagraph (k) of Rule 144; or



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               (iv) the date on which such Shares, Additional Shares or Management Agreement
Shares are sold to the Company or any of its subsidiaries;




provided, however, that certain members of management of Hyperion Capital
Management, Inc. and an affiliate of Brascan Strategic Asset Management whose
Shares or Additional Shares cease to be Registrable Shares hereunder shall have
the additional registration rights set forth in Exhibit A of this Agreement
beginning on the date that such Shares or Additional Shares cease to be
Registrable Shares hereunder and until such time as such Shares and Additional
Shares may be resold without restriction or limitation (including limits on amount
of securities sold) under Rule 144.




     Registration Expenses: Any and all expenses incident to the performance of
or compliance with this Agreement, including, without limitation: (i) all
Commission, securities exchange, NASD registration, listing, inclusion and filing
fees including, if applicable, the fees and expenses of any “qualified independent
underwriter” (and its counsel) that is required to be retained by any holder of
Registrable Shares in accordance with the rules and regulations of the NASD, (ii)
all fees and expenses incurred in connection with compliance with international,
federal or state securities or blue sky laws ( including, without limitation, any
registration, listing and filing fees and reasonable fees and disbursements of
counsel in connection with blue sky qualification of any of the Registrable Shares
and the preparation of a blue sky memorandum and compliance with the rules of the
NASD), (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, duplicating, printing, delivering and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements, certificates and any other
documents relating to the performance under and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing or inclusion of
any of the Registrable Shares on any securities exchange or the Nasdaq Stock
Market pursuant to Section 4(m) of this Agreement, (v) the fees and disbursements
of counsel for the Company and of the independent public accountants of the
Company (including, without limitation, the expenses of any special audit and
“cold comfort” letters required by or incident to such performance) , and
reasonable fees and disbursements of one counsel for the selling Holders to review
the Mandatory Shelf Registration Statement, any Subsequent Shelf Registration
Statement, and, if the Company notifies the Holders pursuant to Section 2 (b)
hereof of its intent to file an IPO Registration Statement within one year of the
date of this Agreement, the IPO Registration Statement, and (vi) any fees and
disbursements customarily paid by issuers in issues and sales of securities
(including the fees and expenses of any experts retained by the Company in
connection with any Registration



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Statement), provided, however, that Registration Expenses shall exclude
brokers’ or underwriters’ discounts and commissions and transfer taxes or transfer
fees, if any, relating to the sale or disposition of Registrable Shares by a
Holder and the fees and disbursements of any counsel to the Holders other than as
provided for in subparagraph (v) above.




     Registration Statement: Any Shelf Registration Statement or the IPO
Registration Statement (to the extent that it covers the resale of any Registrable
Shares), including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.




     Regulation D: Regulation D (Rules 501-508) promulgated by the Commission
under the Securities Act, as such rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such regulation.




     Regulation D Shares: Shares initially sold by the Company in accordance with
the Purchase Agreement in accordance with Regulation D and pursuant to the
Subscription Agreement (as defined in the Purchase Agreement).




     Regulation S: Regulation S (Rules 901-905) promulgated by the Commission
under the Securities Act, as such rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such regulation.




     Regulation S Shares: Shares initially sold by the Company to the Initial
Purchasers and resold by the Initial Purchasers to “non U.S. persons” in
accordance with Regulation S in an “offshore transaction” in accordance with
Regulation S.




     Rule 144: Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.




     Rule 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.



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     Rule 144A Shares: Shares of Common Stock initially sold by the Company to
the Initial Purchasers and resold by the Initial Purchasers to “qualified
institutional buyers” (as such term is defined in Rule 144A).




     Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.




     Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.




     Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.




     Rule 429: Rule 429 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.




     Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.




     Shares: The Rule 144A Shares, the Regulation S Shares and the Regulation D
Shares sold pursuant to the terms and conditions of the Purchase Agreement or the
Subscription Agreement (as defined in the Purchase Agreement).




     Shelf Registration Statement: The Mandatory Shelf Registration Statement,
any Subsequent Shelf Registration Statement or any short-form registration
statement filed pursuant to Section 4(a) hereof.




     Subsequent Shelf Registration Statement: As defined in Section 2 (d) hereof.




     Suspension Event: As defined in Section 5(b) hereof.




     Suspension Notice: As defined in Section 5(b) hereof.




     Trigger Date: As defined in Section 2(a) hereof.




     Underwritten Offering: A sale of securities of the Company to an underwriter
or underwriters for reoffering to the public.



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     Wachovia: As defined in the Introductory Paragraph of this Agreement, and
any successor thereto.




     2. Registration Rights.



               (a) Mandatory Shelf Registration. As set forth in Section 4 hereof, the Company agrees to
file with the Commission as soon as reasonably practicable but in no event later than 270 days from
the date hereof, a registration statement on Form S-11 or such other form under the Securities Act
then available to the Company providing for the resale pursuant to Rule 415 from time to time by
the Holders of any and all Registrable Shares (including for the avoidance of doubt any Additional
Shares that are issued prior to the effectiveness of such registration statement) (such
registration statement, including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference, if any, in such
registration statement, the “Mandatory Shelf Registration Statement”). The Company shall use its
commercially reasonable efforts to cause such Mandatory Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable following such filing, and for this purpose,
the Company shall be entitled to consider the advice of the managing underwriter or underwriters of
an initial public offering of the Common Stock which is then pending as to the effect that the
effectiveness of the Mandatory Shelf Registration Statement could reasonably be expected to have on
the marketing of the initial public offering. Any Mandatory Shelf Registration Statement shall
provide for the resale from time to time, and pursuant to any method or combination of methods
legally available (including, without limitation, an Underwritten Offering or a sale through
brokers or agents), by the Holders of any and all Registrable Shares.



          In the event the Mandatory Shelf Registration Statement is not filed with the Commission
within 270 days from the date hereof (the “Trigger Date”), Hyperion Crystal River shall forfeit the
base management fee it is entitled to receive pursuant to the Management Agreement for a period
commencing from and after the Trigger Date until the Mandatory Shelf Registration Statement is
filed and the Company shall defer all incentive management fee payments to be paid to Hyperion
Crystal River pursuant to the Management Agreement from and after the Trigger Date until the
Mandatory Shelf Registration Statement is filed.



               (b) IPO Registration. If, prior to the Mandatory Shelf Registration Statement being declared
effective by the Commission, the Company proposes to file a registration statement on Form S-11 or
such other form under the Securities Act providing for the initial public offering of shares of
Common Stock (such registration statement, including the Prospectus, amendments and supplements to
such registration statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement, the “IPO Registration Statement”), the Company
shall notify each Holder of the filing (including notifying each Holder of the identity of the
managing underwriters of such initial public offering), within five (5)



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Business Days after such filing, and afford each Holder an opportunity to include in such IPO
Registration Statement all or any part of the Registrable Shares then held by such Holder. Each
Holder desiring to include in any such IPO Registration Statement all or part of the Registrable
Shares held by such Holder shall, within twenty (20) days after receipt of the above-described
notice by the Company, so notify the Company in writing, and in such notice shall inform the
Company of the number of Registrable Shares such Holder wishes to include in such IPO Registration
Statement. Any election by any Holder to include any Registrable Shares in such IPO Registration
Statement will not affect the inclusion of such Registrable Shares in the Mandatory Shelf
Registration Statement until such Registrable Shares have been sold under the IPO Registration
Statement; provided, however, that at such time, the Company shall have the right to remove from
the Mandatory Shelf Registration Statement the Registrable Shares sold pursuant to the IPO
Registration Statement.




                         (i) Right to Terminate IPO Registration. At any time, the Company shall have
the right to terminate or withdraw any IPO Registration Statement referred to in
this Section 2(b) prior to its effectiveness, whether or not any Holder has
elected to include Registrable Shares in such registration; provided, however, the
Company must provide each Holder that elected to include any Registrable Shares in
such IPO Registration Statement prompt written notice of such termination.
Furthermore, in the event the IPO Registration Statement is not declared effective
within ninety (90) days following the initial filing of the IPO Registration
Statement, the Company shall promptly provide a new written notice to all Holders
giving them another opportunity to elect to include Registrable Shares in the
pending IPO Registration Statement. Each Holder receiving such notice shall have
the same election rights afforded such Holder as described in clause (b) above.




                         (ii) Underwriting. The Company shall notify the Holders of the identity of
the managing underwriters for the Underwritten Offering proposed under the IPO
Registration Statement as provided above. The right of any such Holder’s
Registrable Shares to be included in any IPO Registration Statement pursuant to
this Section 2 (b) shall be conditioned upon such Holder’s participation in such
Underwritten Offering and the inclusion of such Holder’s Registrable Shares in the
Underwritten Offering to the extent provided herein. All Holders proposing to
distribute their Registrable Shares through such Underwritten Offering shall enter
into an underwriting agreement in customary form with the managing underwriters
selected by the Company for such underwriting and complete and execute any
questionnaires, powers of attorney, indemnities, securities escrow agreements and
other documents reasonably required under the terms of such underwriting, and
furnish to the Company such information in writing as the Company may reasonably
request for inclusion in the Registration Statement; provided, however, that no
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than



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representations, warranties or agreements as are customary and reasonably
requested by the underwriters. Notwithstanding any other provision of this
Agreement, if the managing underwriters determine in good faith that marketing
factors require a limitation on the number of shares to be included, then the
managing underwriters may exclude shares (including Registrable Shares) from the
IPO Registration Statement and the Underwritten Offering and any shares of Common
Stock included in the IPO Registration Statement and the Underwritten Offering
shall be allocated, first, to the Company, and second, to each of the Holders
requesting inclusion of their Registrable Shares in such IPO Registration
Statement on a pro rata basis based on the total number of Registrable Shares then
held by each such Holder which is requesting inclusion. If any Holder disapproves
of the terms of any Underwritten Offering, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter, delivered at least
ten (10) Business Days prior to the effective date of the IPO Registration
Statement, provided, that if, in the opinion of counsel for the Company, such
withdrawal would necessitate a re-circulation of the Prospectus to investors, such
Holder shall be required to have delivered such written notice at least twenty
(20) Business Days prior to the effective date of the IPO Registration Statement.
Any Registrable Shares excluded or withdrawn from such Underwritten Offering shall
be excluded and withdrawn from the IPO Registration Statement.




                         (iii) Hold-Back Agreement. By electing to include Registrable Shares in the
IPO Registration Statement, if any, each Holder shall be deemed to have agreed not
to effect any sale or distribution of securities of the Company of the same or
similar class or classes of the securities included in the IPO Registration
Statement or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during such periods as reasonably requested (but in no event for a
period longer than one-hundred eighty (180) days following the effective date of
the IPO Registration Statement, provided that each of the executive officers and
directors of the Company and Hyperion Crystal River that hold shares of Common
Stock of the Company or securities convertible into or exchangeable or exercisable
for shares of Common Stock of the Company are subject to the same restriction for
the entire time period required of the Holders hereunder) by the representatives
of the underwriters of the Underwritten Offering pursuant to the IPO Registration
Statement.




                         (iv) Registrable Shares Not Sold Under IPO Registration Statement. If (w)
the Company terminates or withdraws the IPO Registration Statement prior to its
effectiveness or the distribution of all Registrable Shares, if any, registered
thereunder, (x) the underwriters exercise their right pursuant to Section 2(b)(ii)
of this Agreement to



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exclude any Registrable Shares from the IPO Registration Statement, (y) any
Holder elects to withdraw or not to include any Registrable Shares in the IPO
Registration Statement, or (z) any Registrable Shares are otherwise not registered
under and distributed pursuant to the IPO Registration Statement, then the Company
shall file the Mandatory Shelf Registration Statement (if not previously filed) or
an additional shelf registration statement (including the Prospectus, amendments
and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such registration
statement) (an “Additional Mandatory Shelf Registration Statement) relating to any
Registrable Shares not registered under and distributed pursuant to an IPO
Registration Statement as soon as practicable, but in no event later than (a) in
the case of the withdrawal or abandonment of the offering pursuant to the IPO
Registration Statement, the date which is thirty (30) days after the earlier of
the withdrawal or abandonment of the offering pursuant to the IPO Registration
Statement or (b) the date ninety (90) days after the consummation of the offering
pursuant to the IPO Registration Statement.




               (c) Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registrable Shares pursuant to this Agreement. Each Holder participating in a
registration pursuant to this Section 2 shall bear such Holder’s proportionate share (based on the
total number of Registrable Shares sold in such registration) of all discounts and commissions
payable to underwriters or brokers and all transfer taxes and transfer fees in connection with a
registration of Registrable Shares pursuant to this Agreement and any other expense of the Holders
not specifically allocated to the Company pursuant to this Agreement relating to the sale or
disposition of such Holder’s Registrable Shares pursuant to any Registration Statement.




               (d) Subsequent Shelf Registration for Additional Shares Issued after Effectiveness of the
Mandatory Shelf Registration Statement. If any Additional Shares are issued or distributed to
Holders after the effectiveness of the Mandatory Shelf Registration Statement, or such Additional
Shares were otherwise not included in a prior Registration Statement, then the Company shall as
soon as reasonably practicable file an additional shelf registration statement (including the
Prospectus, amendments and supplements to such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement, a “Subsequent Shelf
Registration Statement”) covering such Additional Shares on behalf of the Holders thereof in the
same manner, and subject to the same provisions in this Agreement as the Mandatory Shelf
Registration Statement, provided that the provisions of Section 2(a) or 2(b) hereof will not apply
to any such Subsequent Shelf Registration Statement.




     3. Rules 144 and 144A Reporting.



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          With a view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Shares to the public without registration,
the Company agrees to, so long as any Holder owns any Registrable Shares:



               (a) at all times after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public, use its commercially
reasonable efforts to make and keep public information available, as those terms are understood and
defined in Rule 144(c) under the Securities Act;



               (b) use its commercially reasonable efforts to file with the Commission in a timely manner all
reports and other documents required to be filed by the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting requirements); and



               (c) if the Company is not required to file reports and other documents under the Securities
Act and the Exchange Act, it will make available other information as required by, and so long as
necessary to permit sales of Registrable Shares pursuant to, Rule 144A and in any event shall
provide to each Holder a copy of:




                         (i) the Company’s annual consolidated financial statements (including at
least balance sheets, statements of profit and loss, statements of stockholders’
equity and statements of cash flows) prepared in accordance with U.S. generally
accepted accounting principles, accompanied by an audit report of the Company’s
independent accountants, no later than ninety (90) days after the end of each
fiscal year of the Company, and




                         (ii) the Company’s unaudited quarterly financial statements (including at
least balance sheets, statements of profit and loss, statements of stockholders’
equity and statements of cash flows) prepared in a manner consistent with the
preparation of the Company’s annual financial statements, no later than forty-five
(45) days after the end of each fiscal quarter of the Company.



          4. Registration Procedures.



          In connection with the obligations of the Company with respect to any registration pursuant to
this Agreement, the Company shall use its commercially reasonable efforts to effect or cause to be
effected the registration of the Registrable Shares under the Securities Act to permit the resale
of such Registrable Shares by the Holder or Holders in accordance with the Holders’ intended method
or methods of resale and distribution (which methods shall be commercially reasonable), and the
Company shall:



               (a) prepare and file with the Commission, as specified in this Agreement, a Shelf Registration
Statement, which Shelf Registration Statement shall



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comply in all material respects as to form with the requirements of the applicable form and
include all financial statements required by the Commission to be filed therewith, and use its
commercially reasonable efforts to cause such Shelf Registration Statement to become effective as
promptly as practicable following such filing and to remain effective, subject to Section 5 hereof,
until the date on which no Holders hold Registrable Shares, provided, however, that if the Company
has an effective Shelf Registration Statement on Form S-11 under the Securities Act and becomes
eligible to use Form S-3 or such other short-form registration statement under the Securities Act,
the Company may, upon 30 Business Days’ prior written notice to all Holders of Registrable Shares,
register any Registrable Shares registered but not yet distributed under the effective Shelf
Registration Statement on such a short-form shelf registration statement (which shall thereupon
constitute a Shelf Registration Statement hereunder) and, once such short-form Shelf Registration
Statement is declared effective, de-register such Registrable Shares under the previous
Registration Statement or transfer filing fees from the previous Registration Statement pursuant to
Rule 429;



               (b) subject to Section 4(i) hereof, (i) prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement effective for the period described in Section 4(a) hereof, (ii) cause
each Prospectus contained therein to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424, and (iii) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the method or methods of distribution set
forth in the “Plan of Distribution” section of the Prospectus;



               (c) furnish to the Holders, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other documents as such
Holder may reasonably request, in order to facilitate the public sale or other disposition of the
Registrable Shares; the Company consents, subject to Section 5, to the lawful use of such
Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the
offering and sale of the Registrable Shares covered by any such Prospectus;



               (d) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the applicable Registration
Statement is declared effective by the Commission under all applicable state securities or “blue
sky” laws of such domestic United States jurisdictions as the Initial Purchasers or any Holder
covered by a Registration Statement shall reasonably request in writing, keep each such
registration or qualification or exemption effective during the period such Registration Statement
is required to be kept effective pursuant to Section 4(a) and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Registrable Shares covered by the Registration Statement;
provided, however, that the Company shall not be required to take any action to comply with this
Section 4(d) if it would require the Company or any of its subsidiaries to (i) qualify generally to
do business in any jurisdiction or to register as a



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broker or dealer in such jurisdiction where it would not otherwise be required to qualify but
for this Section 4(d) and except as may be required by the Securities Act, (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;



               (e) use its commercially reasonable efforts to cause all Registrable Shares covered by such
Registration Statement to be registered and approved by such other domestic governmental agencies
or authorities, if any, as may be necessary to enable the Holders thereof to consummate the
disposition of such Registrable Shares; provided, however, that the Company shall not be required
to take any action to comply with this Section 4(e) if it would require the Company or any of its
subsidiaries to (i) qualify generally to do business in any jurisdiction or to register as a broker
or dealer in such jurisdiction where it would not otherwise be required to qualify but for this
Section 4(e) and except as may be required by the Securities Act, (ii) subject itself to taxation
in any such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;



               (f) notify the Initial Purchasers and each Holder with Registrable Shares covered by a
Registration Statement promptly and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing at the address determined in accordance with Section 9(b) , (i) when
such Registration Statement has become effective and when any post-effective amendments thereto
become effective or upon the filing of a supplement to any prospectus, (ii) of the issuance by the
Commission or any state securities authority of any stop order suspending the effectiveness of such
Registration Statement or the initiation of any proceedings for that purpose, (iii) of any request
by the Commission or any other federal or state governmental authority for amendments or
supplements to such Registration Statement or related Prospectus or for additional information, and
(iv) of the happening of any event during the period such Registration Statement is effective as a
result of which such Registration Statement or the related Prospectus or any document incorporated
by reference therein contains any 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 or, in the case of the Prospectus, contains any 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, in light of the circumstances under which they were made, not misleading (which
information shall be accompanied by an instruction to suspend the use of the Registration Statement
and the Prospectus (such instruction to be provided in the same manner as a Suspension Notice)
until the requisite changes have been made, at which time notice of the end of suspension shall be
delivered in the same manner as an End of Suspension Notice);



               (g) during the period of time referred to in Section 4(a) above, use its commercially
reasonable efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order
enjoining or suspending the use or effectiveness of the Shelf Registration Statement or suspending
the qualification (or exemption from qualification) of any of the Registrable Shares for sale in
any jurisdiction, as promptly as practicable;



13









 





               (h) upon request, furnish to each requesting Holder with Registrable Shares covered by a
Registration Statement, without charge, at least one (1) conformed copy of such Registration
Statement and any post-effective amendment or supplement thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);



               (i) except as provided in Section 5, upon the occurrence of any event contemplated by Section
4(f)(iv) hereof, use its commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Shares, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and, upon request, promptly furnish to each requesting Holder a
reasonable number of copies each such supplement or post-effective amendment;



               (j) if requested by the representative of the underwriters, if any, or any Holders of
Registrable Shares being sold in connection with an Underwritten Offering, (i) as promptly as
practicable incorporate in a Prospectus supplement or post-effective amendment such material
information as the representative of the underwriters, if any, or such Holders indicate in writing
relates to them and (ii) use its commercially reasonable efforts to make all required filings of
such Prospectus supplement or such post-effective amendment as soon as practicable after the
Company has received written notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;



               (k) enter into customary agreements (including in the case of an Underwritten Offering, an
underwriting agreement in customary form and reasonably satisfactory to the Company) and take all
other reasonable action in connection therewith in order to expedite or facilitate the distribution
of the Registrable Shares included in such Registration Statement and, in the case of an
Underwritten Offering, make representations and warranties to the Holders of Registrable Shares
covered by such Registration Statement and to the underwriters in such form and scope as are
customarily made by issuers to selling stockholders and underwriters in underwritten offerings,
respectively, and confirm the same to the extent customary if and when requested;



               (l) use its commercially reasonable efforts to make available for inspection by one
representative appointed by the Holders of a majority of the Registrable Shares covered by a
Registration Statement and, with respect to an Underwritten Offering, the representative of any
underwriters participating in any disposition pursuant to a Registration Statement and one law firm
retained by each representative of such Holders or underwriters, respectively, during normal
business hours and upon reasonable notice, all financial and other records, pertinent corporate
documents and properties of the Company and cause the respective officers, directors and employees
of the Company to supply all information reasonably requested by any such representative of the
Holders, the representative of the underwriters or counsel thereto in



14









 







connection with a Registration Statement; provided, however, that such records, documents or
information that the Company determines, in good faith, to be confidential and notifies such
representative of the Holders, representative of the underwriters or counsel thereto are
confidential shall not be disclosed by the representative of the Holders, representative of the
underwriters or counsel thereto unless (i) the disclosure of such records, documents or information
is necessary to avoid or correct a material misstatement or omission in a Registration Statement or
Prospectus, (ii) the release of such records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (iii) such records, documents or
information have been generally made available to the public by the Company; provided, further,
that to the extent practicable, the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders and the other parties entitled thereto by one law firm
designated by and on behalf of the Holders and the other parties, which counsel the Company
reasonably determines to be acceptable;



               (m) use its commercially reasonable efforts (including, without limitation, seeking to cure in
the Company’s listing or inclusion application any deficiencies cited by the exchange or market) to
list or include all Registrable Shares on the New York Stock Exchange or the Nasdaq Stock Market;



               (n) use its commercially reasonable efforts to prepare and file in a timely manner all
documents and reports required by the Exchange Act and, to the extent the Company’s obligation to
file such reports pursuant to Section 15(d) of the Exchange Act expires prior to the expiration of
the effectiveness period of the Registration Statement as required by Section 4(a) hereof, the
Company shall register the Registrable Shares under the Exchange Act and shall maintain such
registration through the effectiveness period required by Section 4(a) hereof;



               (o) provide a CUSIP number for all Registrable Shares, not later than the effective date of
the Registration Statement;



               (p) (i) otherwise use its commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission, (ii) make generally available to its stockholders, as soon as
reasonably practicable, earnings statements covering at least twelve (12) months that satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 (or any similar rule promulgated
under the Securities Act) thereunder, no later than ninety (90) days after the end of each fiscal
year of the Company and (iii) delay the effectiveness of any Registration Statement to which any
Holder of Registrable Shares covered by such Registration Statement shall have, based upon the
written opinion of counsel, objected on the grounds that such Registration Statement does not
comply in all material respects with the requirements of the Securities Act, such Holder having
been furnished with a copy thereof at least two (2) Business Days prior to the effectiveness
thereof, provided that the Company may request effectiveness of such Registration Statement
following such time as the Company shall have used its commercially reasonable efforts to resolve
any such issue with the objecting Holder and shall have advised the Holder in writing of its
reasonable belief that such filing complies with the requirements of the Securities Act;



15









 





               (q) provide and cause to be maintained a registrar and transfer agent for all Registrable
Shares covered by any Registration Statement from and after a date not later than the effective
date of such Registration Statement;



               (r) in connection with any sale or transfer of the Registrable Shares (whether or not pursuant
to a Registration Statement) that will result in the security being delivered no longer being
Registrable Shares, cooperate with the Holders and the representative of the underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing the Registrable
Shares to be sold, which certificates shall not bear any transfer restrictive legends (other than
as required by the Company’s charter) and to enable such Registrable Shares to be in such
denominations and registered in such names as the representative of the underwriters, if any, or
the Holders may reasonably request at least three (3) Business Days prior to any sale of the
Registrable Shares;



               (s) upon effectiveness of the first Registration Statement filed by the Company, the Company
will take such actions and make such filings as are necessary to effect the registration of the
Common Stock under the Exchange Act simultaneously with or as soon as practicable following the
effectiveness of the Registration Statement;



               (t) in the case of an Underwritten Offering, use its commercially reasonable efforts to
furnish or cause to be furnished to each Holder and the underwriters a signed counterpart,
addressed to the Holders and the underwriters, of: (i) an opinion of counsel for the Company,
dated the date of each closing under the underwriting agreement, in customary form reasonably
acceptable to the Company and counsel for the Company; and (ii) a “comfort” letter, dated the
effective date of such Registration Statement and the date of each closing under the underwriting
agreement, signed by the independent public accountants who have certified the Company’s financial
statements included in such Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the Prospectus included therein) and with respect to
events subsequent to the date of such financial statements, as are customarily covered in
accountants’ letters delivered to underwriters in Underwritten Offerings of securities and such
other financial matters as such Holder and the underwriters may reasonably request and customarily
obtained by underwriters in Underwritten Offerings;



               (u) in the case of an Underwritten Offering, use its commercially reasonable efforts to
cooperate and assist in any filings required to be made with the NASD and in the performance of any
due diligence investigation by any underwriter and its counsel (including any “qualified
independent underwriter,” if applicable) that is required to be retained in accordance with the
rules and regulations of the NASD).



          The Company may require the Holders to furnish to the Company such information regarding the
proposed distribution by such Holder as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of the Registrable Shares and no Holder
shall be entitled to be named as a selling stockholder in any Registration Statement and no Holder
shall be entitled to use the Prospectus forming a part thereof if such Holder does not provide such
information to



16









 







the Company. Any Holder that sells Registrable Shares pursuant to a Registration Statement or
as a selling stockholder pursuant to an Underwritten Offering shall be required to be named as a
selling stockholder in the related prospectus and to deliver a prospectus to purchasers. Each
Holder further agrees to furnish promptly to the Company in writing all information required from
time to time to make the information previously furnished by such Holder not misleading.



          Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(f)(ii), 4(f)(iii) or 4(f)(iv) hereof, such Holder will
immediately discontinue disposition of Registrable Shares pursuant to a Registration Statement
until such Holder’s receipt of copies of the supplemented or amended Prospectus. If so directed by
the Company, such Holder will deliver to the Company (at the reasonable expense of the Company) all
copies in its possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Shares current at the time of receipt of such notice.



          5. Black-Out Period.



               (a) Subject to the provisions of this Section 5, the Company shall have the right, but not the
obligation, from time to time to suspend the use of the Registration Statement following the
effectiveness of a Registration Statement (and the filings with any international, federal or state
securities commissions) , if a Suspension Event (as defined below) occurs. If the Company elects
to suspend the effectiveness and/or use of a Registration Statement following the occurrence of a
Suspension Event, the Company, by written notice to the Initial Purchasers as provided for herein
and by written notice as provided for herein (a “Suspension Notice”), shall notify the Holders,
that the effectiveness of the Registration Statement has been suspended and shall direct the
Holders to suspend sales of the Registrable Shares pursuant to the Registration Statement until the
Suspension Event has ended. A Suspension Event shall be deemed to have occurred if: (i) the
representative of the underwriters of an Underwritten Offering of common stock of the Company has
advised the Company that the offer or sale of Registrable Shares pursuant to the Registration
Statement would have a material adverse effect on the Company’s Underwritten Offering; (ii) the
Board of Directors of the Company in good faith has determined that the offer or sale of any
Registrable Shares would materially impede, delay or interfere with any proposed financing, offer
or sale of securities, acquisition, corporate reorganization or other significant transaction
involving the Company; or (iii) the Board of Directors of the Company has determined in good faith,
that it is required by law, or that it is in the best interests of the Company, to supplement the
Registration Statement or file a post-effective amendment to the Registration Statement in order to
ensure that the Prospectus included in the Registration Statement (1) contains the financial
information required under Section 10(a)(3) of the Securities Act; (2) discloses any fundamental
change in the information included in the Prospectus; or (3) discloses any material information
with respect to the plan of distribution not disclosed in the Registration Statement or any
material change to such information. Upon the occurrence of any Suspension Event, the Company
shall use its commercially reasonable efforts to cause the Registration Statement to become
effective or to promptly amend or supplement the Registration Statement or to take such action as



17









 







is necessary to make resumed use of the Registration Statement compatible with the Company’s
best interests, as applicable, so as to permit the Holders to resume sales of the Registrable
Shares as soon as practicable. In no event shall the Company be permitted to suspend the use of a
Registration Statement in any twelve (12) month period for more than forty-five (45) consecutive
days or for more than an aggregate of ninety (90) days, except as a result of a refusal by the
Commission to declare any post-effective amendment to the Registration Statement effective after
the Company has used all commercially reasonable efforts to cause such post-effective amendment to
be declared effective, in which case the Company shall terminate the suspension of the use of the
Registration Statement immediately following the effective date of the post-effective amendment.



               (b) If the Company gives a Suspension Notice to the Holders to suspend sales of the
Registrable Shares following a Suspension Event, the Holders shall not effect any sales of the
Registrable Shares pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company and prior to receipt of an End of Suspension
Notice (as defined below). If so directed by the Company, each Holder will deliver to the Company
(at the expense of the Company) all copies other than permanent file copies then in such Holder’s
possession of the Prospectus covering the Registrable Shares at the time of receipt of the
Suspension Notice. The Holders may recommence effecting sales of the Registrable Shares pursuant
to the Registration Statement (or such filings) upon delivery by the Company of notice that the
Suspension Event or its potential effects are no longer continuing (an “End of Suspension Notice”),
which End of Suspension Notice shall be given by the Company to the Holders and the Initial
Purchasers in the same manner as the Suspension Notice promptly following the conclusion of any
Suspension Event and its effect.



               (c) Notwithstanding any provision herein to the contrary, if the Company shall give a
Suspension Notice pursuant to this Section 5 (or a suspension instruction pursuant to Section
4(f)), the Company agrees that it shall extend the period of time during which the applicable
Registration Statement shall be maintained effective pursuant to this Agreement by the number of
days during the period from the date of the giving of the Suspension Notice to and including the
date when Holders shall have received the End of Suspension Notice (or similar notice pursuant to
Section 4(f)) and copies of the supplemented or amended Prospectus necessary to resume sales;
provided that such period of time shall not be extended beyond the date that securities are no
longer Registrable Shares.



          6. Indemnification and Contribution.



               (a) The Company agrees to indemnify and hold harmless (i) each Initial Purchaser and each
Holder (ii) each person, if any, who controls an Initial Purchaser or a Holder within the meaning
of the Securities Act or the Exchange Act and (iii) the respective officers, directors, partners,
employees, representatives and agents of each Initial Purchaser and each Holder or any person who
controls any of the foregoing (each person referred to in clause (i) , (ii) or (iii) are referred
to collectively as the “Indemnified Parties”), from and against any losses, claims, damages or
liabilities, joint



18









 







or several, or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, judgments, expenses, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, judgments, expenses,
liabilities or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement or Prospectus including any
document incorporated by reference therein, or in any amendment or supplement thereto or in any
preliminary Prospectus relating to such Registration Statement, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary Prospectus relating to
such Registration Statement in reliance upon and in conformity with written information pertaining
to such Holder or furnished to the Company by or on behalf of such Holder or any participating
underwriter specifically for inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary Prospectus relating to
such Registration Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such losses, claims, damages
or liabilities purchased the Shares or Additional Shares concerned, to the extent that a prospectus
relating to such Shares was required to be delivered by such Holder under the Securities Act in
connection with such purchase and any such loss, claim, damage or liability results from the fact
that there was not sent or given to such person, at or prior to the written confirmation of the
sale of such Shares or Additional Shares to such person, a copy of the final Prospectus if the
Company had previously furnished copies thereof to such Holder, and (iii) in the case of a
Suspension Event, the Company shall not be liable for any loss, claim, damage or liability
resulting from a sale of Shares or Additional Shares by any Holder occurring prior to delivery by
the Company of an End of Suspension Notice; provided, further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers and directors and
each person who controls such underwriters within the meaning of the Securities Act or the Exchange
Act to the same extent as provided above with respect to the indemnification of the Holders if
requested by such Holders.



               (b) In connection with any Registration Statement in which a Holder is participating and as a
condition to such participation, each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers, directors, partners, employees, representatives, agents and
investment advisers and each person, if any, who controls any of the foregoing within the meaning
of the Securities Act or the Exchange Act (the “Company Indemnified Persons”) from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or
any



19









 







such controlling person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact contained in such
Registration Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus relating to such Registration Statement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only to the extent that
the untrue statement or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with written information pertaining to such Holder or furnished to the Company by
or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the Company or any Company
Indemnified Person for any legal or other expenses reasonably incurred by the Company or such
Company Indemnified Person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company or any Company Indemnified Person.
Notwithstanding any other provision of this Section 6(b), the Holders shall not be required to
contribute any amount in excess of the amount of the net proceeds received by such Holders from the
sale of the Shares or Additional Shares pursuant to such Registration Statement.



               (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who may, unless in the reasonable
judgment of counsel to the indemnifying party a potential conflict of interest exists, be counsel
to the indemnifying party) , and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs
and expenses incurred at the request of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such settlement (i)
includes any unconditional release of such indemnified party from all liability on any claims that
are



20









 







the subject matter of such action, and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.



               (d) If the indemnification provided for in this Section 6 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the indemnifying party
or parties on the one hand and the indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d) . Notwithstanding any other provision
of this Section 6(d), the Holders shall not be required to contribute any amount in excess of the
amount of the net proceeds received by such Holders from the sale of the Shares or Additional
Shares pursuant to such Registration Statement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph
(d), each person, if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such indemnified party and
each person, if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.



               (e) The agreements contained in this Section 6 shall survive the sale of the Shares or
Additional Shares pursuant to such Registration Statement and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.



          7. Market Stand-off Agreement.



          Each Holder hereby agrees that it shall not, to the extent requested by the Company or an
underwriter of securities of the Company, directly or indirectly sell, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell
(including without limitation any short sale), grant any option, right or warrant for the sale of
or otherwise transfer or dispose of any Registrable Shares or other shares of Common Stock of the
Company or any securities convertible into or exchangeable or exercisable for shares of Common
Stock of the Company then owned by



21









 







such Holder (other than to donees, partners or other transferees of the Holder who agree to be
similarly bound) for a period of up to (i) 180 days following the effective date of the IPO
Registration Statement of the Company filed under the Securities Act or (ii) 60 days following the
date of an Underwritten Offering by the Company pursuant to a Shelf Registration Statement of the
Company filed under the Securities Act; provided, however, that:



               (a) with respect to the 180-day restriction that follows the effective date of the IPO
Registration Statement and the 60-day period that follows the date of an Underwritten Offering
pursuant to a Shelf Registration Statement, such agreement shall not be applicable to Registrable
Shares sold pursuant to such IPO Registration Statement or Shelf Registration Statement, as the
case may be;



               (b) all executive officers and directors of the Company and Hyperion Crystal River then
holding shares of Common Stock or securities convertible into or exchangeable or exercisable for
shares of Common Stock of the Company shall enter into similar agreements for not less than the
entire time period required of the Holders hereunder; and



               (c) the Holders shall be allowed any concession or proportionate release allowed to any
executive officer or director that entered into similar agreements.



          In order to enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the securities subject to this Section 7 and
to impose stop transfer instructions with respect to the Registrable Shares and such other
securities of each Holder (and the securities of every other Person subject to the foregoing
restriction) until the end of such period.



          8. Termination of the Company’s Obligations.



          The Company shall have no further obligations pursuant to this Agreement at such time as no
Registrable Shares are outstanding, provided, however, that the Company’s obligations under
Sections 3, 6 and 9 of this Agreement and Exhibit A to this Agreement shall remain in full force
and effect following such time.



          9. Miscellaneous.



               (a) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, without the written consent of the Company
and Holders beneficially owning not less than fifty percent (50%) of the then outstanding
Registrable Shares. Notwithstanding the foregoing, a waiver or consent to or departure from the
provisions hereof with respect to a matter that relates exclusively to the rights of a Holder whose
securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may be given by such
Holder; provided that the provisions of this sentence may not be amended, modified



22









 







or supplemented except in accordance with the provisions of the immediately preceding
sentence.



               (b) Notices. All notices and other communications, provided for or permitted hereunder shall
be made in writing by delivered by facsimile (with receipt confirmed), overnight courier or
registered or certified mail, return receipt requested, or by telegram:




                         (i) if to a Holder, at the most current address given by the transfer agent
and registrar of the Common Stock to the Company;




                         (ii) if to the Company, at the offices of the Company at 1 Liberty Plaza, 165
Broadway, 36th Floor, New York, New York 10006; and




                         (iii) if to the Initial Purchasers, c/o Deutsche Bank Securities Inc., 60
Wall Street, New York, New York 10005.



               (c) Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties hereto and shall
inure to the benefit of each Holder. The Company agrees that the Holders shall be third-party
beneficiaries to the agreements made hereunder by the Initial Purchasers and the Company, and each
Holder shall have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder; provided, however, that no
Holder shall have the right to enforce such agreements unless and until such Holder fulfills all of
its obligations hereunder.



               (d) Stock Legend. In addition to any other legend that may appear on the stock certificates
evidencing the Registrable Shares, for so long as any Shares or Additional Shares remain
Registrable Shares, each stock certificate evidencing such Registrable Shares shall contain a
legend to the following effect: “THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
ENTITLED TO THE BENEFITS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED MARCH 15, 2005.”



               (e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.



               (f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



               (g) Severability. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void



23









 







or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially reasonable efforts to find and
employ an alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties hereto that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.



               (h) Entire Agreement. This Agreement (including Exhibit A hereto), together with the Purchase
Agreement, is intended by the parties hereto as a final expression of their agreement, and is
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein.



               (i) Registrable Shares Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Shares is required hereunder,
Registrable Shares held by the Company or its Affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage.



               (j) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the provisions of this Agreement. All references made in this
Agreement to “Section” refer to such Section of this Agreement, unless expressly stated otherwise.



               (k) Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover its reasonable attorneys’ fees in addition to
any other available remedy.



[Remainder of this Page Intentionally Left Blank]




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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	CRYSTAL RIVER CAPITAL, INC.

 	 
	 	By:  	/s/ Clifford E. Lai
 	 
	 	 	Name:  	Clifford E. Lai 	 
	 	 	Title:  	President 	 
	 
	 	DEUTSCHE BANK SECURITIES INC. and WACHOVIA

CAPITAL MARKETS, LLC, for themselves and on

behalf of the Holders





By: DEUTSCHE BANK SECURITIES INC.

 	 
	 	By:  	/s/ Niron Stabinsky
 	 
	 	 	Name:  	Niron Stabinsky 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Jeffrey Mortara
 	 
	 	 	Name:  	Jeffrey Mortara 	 
	 	 	Title:  	Managing Director 	 
	 
	 	HYPERION CRYSTAL RIVER CAPITAL ADVISORS, LLC

 	 
	 	By:  	/s/ Clifford E. Lai
 	 
	 	 	Name:  	Clifford E. Lai 	 
	 	 	Title:  	President 	 
	 



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EXHIBIT A




ADDITIONAL REGISTRATION RIGHTS AGREEMENTS





          1. Definitions. Capitalized terms used herein but not defined herein shall have the
meaning ascribed to such terms in the Registration Rights Agreement to which this Exhibit A is
attached (the “Registration Rights Agreement”).



          2. Piggyback Rights. Certain members of management of Hyperion Capital Management,
Inc. and an affiliate of Brascan Strategic Asset Management who hold Registrable Shares, Hyperion
Crystal River or its designees or transferees who hold Management Agreement Shares and any
Permitted Transferees (as hereinafter defined) (collectively, the “Covered Persons”) shall have the
unlimited right to piggyback on to any registration statement of the Company (other than a
registration statement on Form S-4 or Form S-8 or any successor form), subject to the following
cutbacks only in underwritten offerings: (i) in the event of an underwritten initial public
offering, the managing underwriters may exclude entirely the shares of the Covered Persons, if the
managing underwriters determine in good faith that marketing factors require a limitation on the
number of such shares to be included in such offering, and (ii) in the event of any other
underwritten offering, the managing underwriters may exclude the shares of the Covered Persons to
the same extent and in the same proportion that shares of holders (other than the Company) are
excluded, if the managing underwriters determine in good faith that marketing factors require a
limitation on the number of shares to be included in such offering. For the avoidance of doubt,
the Covered Persons shall only have the rights described herein with respect to shares of common
stock issued in connection with the offering pursuant to the Purchase Agreement or pursuant to the
Management Agreement.



          3. Demand Rights. The Covered Persons shall also have the right to require the
Company to prepare, file and maintain at all times such number of registration statements as are
specified in the next sentence of this Section 3 exclusively for the resale of the Shares or
Additional Shares held by Covered Persons that cease to be Registrable Shares if such shares may
not be resold without restriction or limitation (including limits on amount of securities sold)
under Rule 144 (the “Additional Registration Shares”). The Covered Persons shall be entitled to
(i) an unlimited number of registrations on Form S-2, Form S-3 or any successor or replacement
forms and (ii) if the Company is not then eligible to use Form S-2, Form S-3 or any successor or
replacement form, a single registration on such other form as the Company is then eligible to use.



          4. Exercise Procedures. Notwithstanding anything herein or in the Registration Rights
Agreement to the contrary, the demand rights described above may only be exercised upon request of
Covered Persons, in the case of clause (i), who hold in the aggregate at least twenty percent (20%)
of all shares which continue to be Additional Registration Shares and, in the case of clause (ii),
who hold in the aggregate at least one-third of all shares which continue to be Additional
Registration Shares.



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          5. Registration Procedures. The Company shall use its commercially reasonable efforts
to effect or cause to be effected the registration of the Additional Registration Shares under the
Securities Act of 1933, as amended (the “Securities Act”) , to permit the resale of the Additional
Registration Shares by the Covered Persons.



          6. Expenses. The Company shall bear all expenses of registration, including its
professional fees and registration and filing fees with the SEC, state securities administrators
and applicable stock exchanges, and printing, word processing and delivery and distribution fees
with respect to any registration statement, prospectus (preliminary or final), or any amendments or
supplements thereto, and reasonable fees and disbursements of one counsel to the Covered Persons,
provided, however, the Company shall not be liable for the underwriting discounts and commissions
associated with the sale of the Additional Registration Shares.



          7. Successors and Assigns; Permitted Transferees. The agreements in this Exhibit A
shall inure to the benefit of and be binding upon the successors and assigns of each of the Company
and the Covered Persons. For purposes of this Exhibit A, the term Permitted Transferee shall mean
each person or entity to whom certain members of management of Hyperion Capital Management, Inc.,
an affiliate of Brascan Strategic Asset Management who hold Registrable Shares and Hyperion Crystal
River or its designees or transferees, transfer any Shares, Additional Shares or Management
Agreement Shares if such shares may not be resold by the Permitted Transferee without restriction
or limitation (including limits on amounts of securities sold) under Rule 144.



          8. Indemnification and Contribution.



               (a) The Company agrees to indemnify and hold harmless (i) the Covered Persons and (ii) each
person, if any, who controls the Covered Persons within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (iii) the respective
officers, directors, partners, employees, representatives and agents of the Covered Persons or any
person who controls any of the foregoing (each person referred to in clause (i), (ii) or (iii) are
referred to collectively as the “Indemnified Parties”), from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, judgments, expenses, liabilities or actions relating to
purchases and sales of the Additional Registration Shares) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, judgments, expenses, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a registration
statement or prospectus, including any document incorporated by reference therein, or in any
amendment or supplement thereto or in any preliminary prospectus relating to such registration
statement, or arise out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in



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any such case to the extent that such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in
such registration statement or prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus relating to such registration statement, in reliance upon and in conformity
with written information pertaining to the Covered Persons or furnished to the Company by or on
behalf of the Covered Persons specifically for inclusion therein and (ii) with respect to any
untrue statement or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to such registration statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of the Covered Persons from whom the person asserting
any such losses, claims, damages or liabilities purchased the Additional Registration Shares
concerned, to the extent that a prospectus relating to such Additional Registration Shares was
required to be delivered by the Covered Persons under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of the Covered Persons results from the fact
that there was not sent or given to such person, at or prior to the written confirmation of the
sale of such Additional Registration Shares to such person, a copy of the final prospectus if the
Company had previously furnished copies thereof to the Covered Persons; provided further, however,
that this indemnity agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect to the indemnification of the
Covered Persons if requested by such Covered Persons.



               (b) In connection with any registration statement in which a Covered Person is participating
and as a condition to such participation, such Covered Person, severally and not jointly, will
indemnify and hold harmless the Company, its officers, directors, partners, employees,
representatives, agents and investment advisers and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act (the “Company Indemnified Persons”)
from and against any losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in such registration statement or prospectus or in any amendment or supplement thereto or
in any preliminary prospectus relating to such registration statement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such Covered Person or
furnished to the Company by or on behalf of such Covered Person specifically for inclusion therein;
and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company or any Company Indemnified Person for any legal or other expenses reasonably
incurred by the Company or such Company Indemnified Person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in



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addition to any liability which such Covered Person may otherwise have to the Company or any
Company Indemnified Person. Notwithstanding any other provision of this Section 8(b), no Covered
Person shall be required to contribute any amount in excess of the amount by which the net proceeds
received by such Covered Person from the sale of the Additional Registration Shares pursuant to
such registration statement exceeds the amount of damages which such Covered Person has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.



               (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who may, unless (in the reasonable
judgment of counsel to the indemnifying party) a potential conflict exists, be counsel to the
indemnifying party), and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other than reasonable costs
incurred at the request of the indemnifying party. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) includes any
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.



               (d) If the indemnification provided for in this Section 8 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the indemnifying party
or parties on the one hand and the indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a



A-4









 







material fact relates to information supplied by the Company on the one hand or such Covered
Person or such other indemnified party, as the case may be, on the other, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 8(d), no Covered Person shall be required to
contribute any amount in excess of the amount by which the net proceeds received by such Covered
Person from the sale of the Additional Registration Shares pursuant to such registration statement
exceeds the amount of damages which such Covered Person has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.



          9. For the avoidance of doubt, the additional rights and registration statements described in
this Exhibit A shall be subject to the black-out periods described in Section 5 of the Registration
Rights Agreement.



          10. Termination of the Company’s Obligations. The agreements contained in this
Exhibit A shall survive the sale of the Additional Registration Shares pursuant to a registration
statement and shall remain in full force and effect, regardless of any termination or cancellation
of the Registration Rights Agreement or any investigation made by or on behalf of any indemnified
party.




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