Execution Copy
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of May 15,
2003, by and among Castle Dental Centers, Inc., a Delaware corporation (the
"Company"), Sentinel Capital Partners II, L.P., a Delaware limited partnership
("Sentinel"), General Electric Capital Corporation, a Delaware corporation
("GE"), Midwest Mezzanine Fund II, L.P., a Delaware limited partnership
("Midwest"), Xxxxx X. Xxxxx ("Xxxxx"), Xxxxxx Xxxxxxxxxxx ("Xxxxxxxxxxx"), and
Xxxx X. Xxxxx ("Slack").
Sentinel, Xxxxxxxxxxx, XX, Midwest, Xxxxx, Slack and the Company are
parties to a Preferred Stock and Subordinated Note Purchase Agreement dated as
of the date hereof (the "Purchase Agreement"). In order to induce Sentinel,
Xxxxxxxxxxx, XX, Midwest, Xxxxx and Slack to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
Closing under the Purchase Agreement. It is acknowledged that certain other
parties shall become a party to this agreement following the date hereof in
conjunction with such parties' execution of a joinder to the Purchase Agreement
and their purchase of certain securities of the Company thereunder.
GE, Midwest, Xxxxx and the Company are parties to a Registration Rights
Agreement dated as of July 19, 2002 (the "Existing Registration Rights
Agreement"). By entering into this Agreement, GE, Midwest and Xxxxx are
terminating their rights under the Existing Registration Rights Agreement.
Unless otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in Section 9 hereof.
hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. Subject to the terms of this Section 1, at any
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time and from time to time, the holders of a majority of the Sentinel
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities. All registrations requested
pursuant to this Section 1(a) are referred to herein as "Demand Registrations".
Each request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered, the anticipated per share
price range for such offering and the intended method of distribution. Within
ten days after receipt of any such request, the Company shall give written
notice of such requested registration to all other holders of Registrable
Securities and, subject to the terms of Section 1(d) hereof, shall include in
such registration (and in all related registrations and qualifications under
state blue sky laws or in compliance with other registration requirements and in
any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of a majority of the Sentinel
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Registrable Securities shall be entitled to request 2 registrations under the
Securities Act on Form S-1 or any similar long-form registrations (the
"Long-Form Registrations") in which the Company shall pay all Registration
Expenses. A registration shall not count as one of the permitted Long-Form
Registrations until it has become effective and the holders of Registrable
Securities are able to register at least 90% of the Registrable Securities
requested to be included in such registration; it being understood and agreed
that the requisite holders of Registrable Securities making a request for a
Demand Registration hereunder may withdraw from such registration at any time
prior to the effective date of such Demand Registration, in which case such
request will not count as one of the permitted Demand Registrations for such
holders. All Long Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form Registrations
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provided pursuant to Section Error! Reference source not found., the holders of
a majority of the Sentinel Registrable Securities shall be entitled to request 2
registrations under the Securities Act on Form S-2 or S-3 or any similar
short-form registrations (the "Short-Form Registrations") in which the Company
shall pay all Registration Expenses. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use any applicable short form
and if the managing underwriters (if any) agree to the use of a Short-Form
Registration. The Company shall use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities. A registration
shall not count as one of the permitted Short-Form Registrations until it has
become effective and the holders of Registrable Securities are able to register
at least 90% of the Registrable Securities requested to be included in such
registration.
(d) Priority on Demand Registrations. The Company shall not include in any
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Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of at least a majority of the
Registrable Securities initially requesting such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company shall include in such registration
the number which can be sold which in the opinion of such underwriters can be
sold without adversely affecting the marketability of the offering, in the
following order of priority: (i) first, the Registrable Securities requested to
be included, pro rata among the respective holders thereof on the basis of the
number of Registrable Securities owned by each such holder, and (ii) second,
other securities requested to be included by holders having registration rights
with respect to the Company's securities (including those holders who are
granted rights that are subordinate to the rights set forth herein, as described
in Section 1(f) below), pro rata among the respective holders thereof on the
basis of the number of other securities owned by each such holder.
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(e) Selection of Underwriters. In the case of an underwritten Demand
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Registration, the holders of a majority of the Registrable Securities initially
requesting such Demand Registration hereunder shall have the right to select
the investment banker(s) and manager(s) to administer the offering, so long as
such firms are reasonably acceptable to the Company.
(f) Other Registration Rights. Except as provided on Exhibit A hereto, the
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Company represents and warrants that it is not a party to, or otherwise subject
to, any other agreement granting registration rights to any Person with respect
to any securities of the Company. Except as provided in this Agreement, the
Company shall not grant to any Persons the right to request or require the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of the holders of a majority of the Registrable
Securities, unless such registration rights are expressly made subordinate to
the rights set forth herein.
(g) Registration Deferral Right. Notwithstanding the foregoing, if the
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Company shall furnish to holders requesting a registration statement pursuant to
this Section 1, a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 60 days after receipt of the request
of the holders; provided, however, that the Company may not utilize this right
more than once in any twelve-month period.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any of
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its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice (in any event within three business days after
its receipt of notice of any exercise of demand registration rights other than
under this Agreement) to all holders of Registrable Securities of its intention
to effect such a registration and, subject to the terms of Sections 2(c) and
2(d) hereof, shall include in such registration (and in all related
registrations or qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after the giving of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such
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registration the number which can be sold which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, in the following order of priority: (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Securities requested to
be included and other securities requested to be included by holders having
registration rights with respect to the Company's securities (not including
those holders who are granted rights that are subordinate to the rights set
forth herein, as described in Section 1(f) above), pro rata among the respective
holders thereof on the basis of the number of securities owned by each such
holder, and (iii) third, securities requested to be included by holders having
registration rights with respect to the Company's securities that are
subordinate to the rights set forth herein, as described in Section 1(f) above.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
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underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration the number which can be sold which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, in the following order of priority: (i) first, the Registrable
Securities requested to be included and other securities requested to be
included by holders having registration rights with respect to the Company's
securities (not including those holders who are granted rights that are
subordinate to the rights set forth herein, as described in Section 1(f) above),
pro rata among the respective holders thereof on the basis of the number of
securities owned by each such holder, and (ii) second, securities requested to
be included by holders having registration rights with respect to the Company's
securities that are subordinate to the rights set forth herein, as described in
Section 1(f) above.
(e) Selection of Underwriters. If any Piggyback Registration is an
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underwritten offering, the selection of investment banker(s) and manager(s) for
the offering will be selected by the Company and shall be reasonably acceptable
to holders of a majority of the Sentinel Registrable Securities.
(f) Other Registrations. If the Company has previously filed a registration
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statement with respect to Registrable Securities pursuant to Section 1 or
pursuant to this Section 2, and if such previous registration has not been
withdrawn or abandoned, the Company shall not file or cause to be effected, any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form X-0, Xxxx X-0 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least 180 days has elapsed from the effective date of such previous
registration.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities shall not effect any public sale
or distribution (including sales pursuant to Rule 144 of the Securities Act) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities,
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during the seven days prior to and the 180-day period beginning on the effective
date of any underwritten public offering of the Company's equity securities
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4, Form S-8 or
any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) shall use its best efforts to cause each
officer and director of the Company to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144 of the Securities Act) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
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have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement, and all amendments and supplements thereto and related
prospectuses as may be necessary to comply with applicable securities laws, with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to the counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness of
each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 90 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as
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such seller may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided that
the Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to
secure NASDAQ authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
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reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) If any such registration or comparable statement refers to any holder
by name or otherwise as the holder of any securities of the Company and if in
its sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
shall assist in meeting any future financial requirements of the Company, or
(ii) in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force, the
deletion of the reference to such holder; provided that with respect to this
clause (ii) such holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to the
Company;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(n) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(o) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Registrable
Securities being sold reasonably request (provided that such Registrable
Securities constitute at least 10% of the securities covered by such
registration statement).
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5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration,
qualification and filing fees, fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
6. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, actions, damages, liabilities and expenses caused by (i) any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and to pay to each holder of
Registrable Securities, its officers and directors and each Person who controls
such holder (within the meaning of the Securities Act), as incurred, any legal
and any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action, except
insofar as the same are caused by or contained in any information furnished in
writing to the Company by such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing
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such information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, shall indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from (i)
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder, or (ii) by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto; provided that
the obligation to indemnify shall be individual, not joint and several, for each
holder and shall be limited (except in the case of willful fraud by such holder)
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. In such instance, the conflicting indemnified parties shall have a right
to retain one separate counsel, chosen by the holders of a majority of the
Registrable Securities included in the registration, at the expense of the
indemnifying party. No indemnifying party, in the defense of such claim or
litigation, shall, except with the consent of each indemnified party, consent to
the entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable
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by such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by a holder
under this Section 6(e) exceed the net proceeds from the offering received by
such holder, except in the case of willful fraud by such holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of competent jurisdiction.
(f) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
7. Participation in Underwritten Registrations. No Person may participate
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in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided, that (a)
the holders of Registrable Securities to be distributed by such underwriters
shall be parties to such underwriting agreement and may, at their option,
require that any or all of the representations and warranties by the Company to
and for the benefit of such underwriters shall also be made to and for the
benefit of such holders of Registrable Securities and (b) no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder,
such holder's ownership of securities being included in the registration, and
related customer matters, and such holder's intended method of distribution) or
to undertake any indemnification obligations to the Company with respect
thereto, except as otherwise provided in Section 6(b) hereof.
8. Rule 144 Reporting. With a view to making available to the holders of
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Registrable Securities the benefits of certain rules and regulations of the
Securities and Exchange Commission which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
reasonable best efforts to:
(a) make and keep current public information available, within the meaning
of Rule 144 or any similar or analogous rule promulgated under the Securities
Act;
(b) file with the Securities and Exchange Commission, in a timely manner,
all reports and other documents required of the Company under the Securities Act
and Exchange Act; and
(c) so long as any party hereto owns any Registrable Securities, furnish to
such party forthwith upon request, a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144, the Securities Act
and the Exchange Act; a copy of
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the most recent annual or quarterly report of the Company; and such other
reports and documents as such Person may reasonably request in availing itself
of any rule or regulation of the Securities and Exchange Commission allowing it
to sell any such securities without registration.
9. Definitions. As used in this Agreement, the following terms shall have
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the following meanings:
"Business Day" means any day excluding Saturday, Sunday, and any day which
is a legal holiday under the laws of the State of New York or California or is a
day on which banking institutions located in such states are authorized or
required by law or other governmental action to close.
"Common Stock" means the Company's Common Stock, par value $0.000001 per
share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Registrable Securities" means (i) any of the Common Stock issued or
issuable upon the exercise or conversion of any Series B Stock, Series A-1
Stock, Series A-2 Stock or Warrants issued to or held by the Stockholders, and
(ii) any Common Stock issued or issuable with respect to the securities referred
to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the Securities
Act or sold to the public through a broker, dealer or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in force),
repurchased by the Company or any subsidiary of the Company. For purposes of
this Agreement, a Person shall be deemed to be a holder of Registrable
Securities, and the Registrable Securities shall be deemed to be in existence,
whenever such Person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
"Securities Act" means the Securities Act of 1933, as amended.
"Sentinel Registrable Securities" means the Registrable Securities
initially issued to or held by Sentinel.
"Series A-1 Stock" means the Convertible Preferred Stock, Series A-1, of
the Company, par value $0.000001 per share.
11
"Series A-2 Stock" means the Convertible Preferred Stock, Series A-2, of
the Company, par value $0.000001 per share.
"Series B Stock" means the Company's Series B Convertible Preferred Stock,
par value $0.000001 per share.
"Stockholders" means Sentinel, GE, Midwest, Usdan, Fitzpatrick, Slack and
their respective transferees and any other Person becoming party to this
Agreement.
"Warrants" means the warrants to purchase Series A-2 Stock issued to GE.
10. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter enter into
--------------------------
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall not
--------------------------------------------
take any action with respect to its securities which would adversely affect the
ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or which
would materially and adversely affect the marketability of such Registrable
Securities in any such registration.
(c) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that, in addition to any other rights and
remedies existing in its favor, any party shall be entitled to specific
performance and/or other injunctive relief from any court of law or equity of
competent jurisdiction (without posting any bond or other security) in order to
enforce or prevent violation of the provisions of this Agreement.
(d) Amendments, Waivers and Terminations. Except as otherwise provided
------------------------------------
herein, the provisions of this Agreement may be amended, waived or terminated,
on behalf of all holders of Registrable Securities, only upon the prior written
consent of the Company, the holders of a majority of the Sentinel Registrable
Securities, and the holders of a majority of all Registrable Securities other
than Sentinel Registrable Securities; provided, however, no amendment or waiver
can be effected if, by its terms, such amendment or waiver adversely affects one
Stockholder without having the same relative adverse effect on all Stockholders
without the prior written consent of such adversely affected Stockholder. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
(e) Successors and Assigns. All covenants and agreements in this Agreement
----------------------
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective
12
successors and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement shall
------------
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two or
------------
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
(i) Governing Law. All issues and questions relating to the construction,
-------------
interpretation and enforcement of this Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflicts of laws or choice of law of the State
of New York or any other jurisdiction which would result in the application of
the law of any jurisdiction other than the State of New York.
(j) Notices. All notices, demands or other communications to be given or
-------
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Company and Sentinel at the address
indicated below:
To the Company, to:
------------------
Castle Dental Centers, Inc.
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
13
With a copy, which shall not constitute notice to the
-----------------------------------------------------
Company, to:
-----------
Xxxxxx and Xxxxx, LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
To Sentinel, to:
---------------
Sentinel Capital Partners
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice to
-------------------------------------------------
Sentinel, to:
------------
Xxxxxxxx & Xxxxx
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
14
To GE, to:
---------
General Electric Capital Corporation
c/o Heller Healthcare Financial Services
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
--------------
General Electric Capital Corporation
c/o Heller Healthcare Financial Services
0 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
To Midwest, to:
--------------
Midwest Mezzanine Fund II, L.P.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
To Xxxxx, to:
------------
c/o Castle Dental Centers, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
To Xxxxxxxxxxx, to:
------------------
c/o Sentinel Capital Partners
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
To Slack, to:
------------
c/o Castle Dental Centers, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
00
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(k) Waiver of Jury Trial. Each of the parties hereto waives any right it
--------------------
may have to trial by jury in respect of any litigation based on, arising out of,
under or in connection with this Agreement or any course of conduct, course of
dealing, verbal or written statement or action of any party hereto.
(l) Time of the Essence; Computation of Time. Time is of the essence for
----------------------------------------
each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or other discharge or any duty hereunder shall fall
upon a Non-Business Day, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular Business Day.
(m) Termination. GE, Midwest, Xxxxx and the Company hereby agree that all
-----------
registration and other rights granted to Xxxxxx Financial, Inc. (or GE as
successor to Xxxxxx), Midwest and Xxxxx under the Existing Registration Rights
Agreement are hereby terminated.
(n) Rights Transfer. If at any time Sentinel and its affiliates no longer
---------------
hold any Sentinel Registrable Securities, any and all rights hereunder which may
be exercised by the holders of a majority of the Sentinel Registrable
Securities, will thereafter be exercisable by the holders of a majority of the
Registrable Securities.
* * * * *
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CASTLE DENTAL CENTERS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
SENTINEL CAPITAL PARTNERS II, L.P.
By Sentinel Partners II, L.P.
Its: General Partner
By: Sentinel Managing Company II, LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Managing Member
MIDWEST MEZZANINE FUND II, L.P.
By: ABN AMRO Mezzanine Management II, L.P.
Its: General Partner
By: ABN AMRO Mezzanine Management II, Inc.
Its: General Partner
By: /s/ Xxxx Xxxxx
---------------
Name: Xxxx Xxxxx
Title: Vice President
17
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxx Xxxxxxxx
-----------------
Name: Xxx Xxxxxxxx
Title: Duly Authorized Officer
/s/ Xxxxx X. Xxxxx
------------------
XXXXX X. XXXXX
/s/ Xxxxxx Xxxxxxxxxxx
----------------------
XXXXXX XXXXXXXXXXX
/s/ Xxxx X. Xxxxx
-----------------
XXXX X. XXXXX
18
Exhibit A
