EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
April 29, 2005, by and among (i) Triad Holdings Inc., a Delaware corporation
(the "Company"), (ii) GS Capital Partners 2000, L.P., a Delaware limited
partnership, GS Capital Partners 2000 Employee Fund, L.P., a Delaware limited
partnership, GS Capital Partners 2000 Offshore, L.P., a Cayman Islands exempted
limited partnership, Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P., a Delaware
limited partnership, GS Capital Partners 2000 GmbH & Co. Beteilgungs KG, a
German limited partnership, and MTGLQ Investors, L.P., a Delaware limited
partnership (collectively, "Goldman"), (iii) GTCR Fund VIII, L.P., a Delaware
limited partnership, GTCR Fund VIII/B, L.P., a Delaware limited partnership,
GTCR Co-Invest II, L.P., a Delaware limited partnership, and any investment fund
managed by GTCR Xxxxxx Xxxxxx, L.L.C., a Delaware limited liability company, or
GTCR Xxxxxx Xxxxxx XX, L.L.C., a Delaware limited liability company, that at any
time acquires securities of the LLC or the Company and executes a counterpart of
this Agreement or otherwise agrees to be bound by this Agreement (each, a "GTCR
Investor" and collectively, the "GTCR Investors"), (iv) Xxxxxx'x Xxxx/Ford Ltd.,
a Texas limited partnership ("HGF" and, together with the other purchasers
pursuant to the Management Agreement (as defined below), the "HGF Investors"),
and (v) Xxxxx X. Xxxxx and any other executive employee of the Company or its
Subsidiaries who, at any time, acquires securities of the Company in accordance
with Section 8 hereof and executes a counterpart of this Agreement or otherwise
agrees to be bound by this Agreement (each, an "Executive" and collectively, the
"Executives"), and (vi) each of the other entities and individuals set forth
from time to time on the attached "Schedule of Holders" under the heading "Other
Stockholders" who, at any time, acquires securities of the Company in accordance
with Section 8 hereof and executes a counterpart of this Agreement or otherwise
agrees to be bound by this Agreement (the "Other Stockholders"). Goldman, the
GTCR Investors and the HGF Investors are collectively referred to herein as the
"Investors." The Investors, the Executives and the Other Stockholders are
collectively referred to herein as the "Stockholders." Unless otherwise provided
in this Agreement, capitalized terms used herein shall have the meanings set
forth in Section 9 hereof.
WHEREAS, the Company is a Subsidiary of Triad Holdings, LLC, a
Delaware limited liability company (the "LLC").
WHEREAS, the LLC and the Investors are parties to a Unit Purchase
Agreement of even date herewith (the "Unit Purchase Agreement") pursuant to
which the Investors will purchase equity securities directly from the LLC and
thereby acquire an indirect equity interest in the Company. In order to induce
the Investors to enter into the Unit 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 Unit
Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after a Qualified IPO,
the holders of a majority of the Goldman Registrable Securities, the holders of
a majority of the GTCR Registrable Securities and the holders of a majority of
the HGF Registrable Securities may each request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-1
or any similar long-form registration ("Long-Form Registrations"), or on Form
S-2 or S-3 (including pursuant to Rule 415 under the Securities Act) or any
similar short-form registration ("Short-Form Registrations"), if available. 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 and the
anticipated per share or per unit price range for such offering. 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 shall
include in such registration 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) Investor Long-Form Registrations. The holders of a majority of
the Goldman Registrable Securities, the holders of a majority of the GTCR
Registrable Securities and the holders of a majority of the HGF Registrable
Securities (each, an "Investor Majority") shall each be entitled to request
three (3) Long-Form Registrations in which the Company shall pay all
Registration Expenses (as defined in Section 5). A registration shall not count
as one of the permitted Long-Form Registrations until it has become effective
(unless such Long-Form Registration has not become effective due solely to the
fault of the holders requesting such registration). All Long-Form Registrations
shall be underwritten registrations.
(c) Investor Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), each Investor Majority shall be
entitled to request an unlimited number of Short-Form Registrations in which the
Company shall pay all Registration Expenses; provided that the aggregate
offering value of the Registrable Securities requested to be registered in any
Short-Form Registration must equal at least $10.0 million. Demand Registrations
shall be Short-Form Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities. If the Company, pursuant to the request of an Investor
Majority, is qualified to and has filed with the Securities Exchange Commission
a registration statement under the Securities Act on Form S-3 pursuant to Rule
415 under the Securities Act (the "Required Registration"), then the Company
shall use its best efforts to cause the Required Registration to be declared
effective under the Securities Act as soon as practicable after filing, and,
once effective, the Company shall cause such Required Registration to remain
effective for a period ending on the earlier of (i) the date on which all
Goldman Registrable Securities, GTCR Registrable Securities or HGF Registrable
Securities, as applicable (depending on the Investor Majority requesting such
Required Registration), have been sold pursuant to the Required Registration, or
(ii) the date as of which the holder(s) of such Investor Registrable Securities
(assuming such holder(s) are affiliates of the Company) are able to sell all of
the Investor Registrable Securities then held by them within a ninety-day period
in compliance with Rule 144 under the Securities Act.
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(d) Priority on Demand Registrations. The Company shall not include
in any Demand Registration any securities that are not Registrable Securities
without the prior written consent of the holders of a majority of the Investor
Registrable Securities included in 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, that
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Investor Registrable Securities
to be included in such registration, then the Company shall include in such
registration, prior to the inclusion of any securities that are not Registrable
Securities, the number of Registrable Securities requested to be included that,
in the opinion of such underwriters, can be sold in an orderly manner within the
price range of such offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder.
(e) Restrictions on Long-Form Registrations. The Company shall not
be obligated to effect any Long-Form Registration within 90 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to Section 2 and in which there was no reduction in the number of
Registrable Securities requested to be included. The Company may postpone for up
to 90 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company and the holders of a majority of the Investor
Registrable Securities agree that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to acquire financing, engage in any
acquisition of assets or stock (other than in the ordinary course of business),
or engage in any merger, consolidation, tender offer, reorganization, or similar
transaction or require the Company to disclose any material nonpublic
information which could reasonably be likely to be detrimental to the Company
and its Subsidiaries; provided that, in such event, the holders of Investor
Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and the Company shall pay all Registration
Expenses in connection with such registration. The Company may delay a Demand
Registration hereunder only once in any twelve-month period.
(f) Selection of Underwriters. The holders of a majority of the
Investor Registrable Securities included in any Demand Registration shall have
the right to select the investment banker(s) and manager(s) to administer the
offering.
(g) Other Registration Rights. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities, options, or
rights convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the holders of a majority of the Investor
Registrable Securities.
(h) Obligations of Holders of Registrable Securities. Subject to the
Company's obligations under Section 4(e) hereof, each holder of Registrable
Securities shall cease using any prospectus after receipt of written notice from
the Company of the happening of any event as a result of which such prospectus
contains an untrue statement of a material fact or
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omits any fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
any of its Common Stock (including any proposed registration of the Company's
Common Stock by any third party) under the Securities Act (other than (i)
pursuant to a Demand Registration, to which Section 1 is applicable, (ii) in
connection with an initial public offering of the Company's equity securities,
or (iii) in connection with registrations on Form X-0, X-0 or any successor or
similar forms) 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 (and 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 shall include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after the receipt of the
Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
is an 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 an orderly manner in such offering within a price
range acceptable to the Company, then the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares or units owned by each such holder, and (iii)
third, the other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities other than holders of Registrable Securities (it being understood
that secondary registrations on behalf of holders of Registrable Securities are
addressed in Section 1 above rather than this Section 2(d)), 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 an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities to be
included in such registration, then the Company shall include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares or units owned
by each such holder, and (iii) third, the other securities requested to be
included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, then the selection of investment banker(s) and manager(s)
for the offering
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must be approved by the holders of a majority of the Registrable Securities
included in such Piggyback Registration. Such approval shall not be unreasonably
withheld.
(f) Other Registrations. If the Company has previously filed a
registration 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, then, unless such previous registration is a
Required Registration, 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 forms), 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.
(a) Each holder of Registrable Securities agrees not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, enter into a transaction which
would have the same effect, or enter into any swap, hedge or other arrangement
that transfers, in whole or in part, any of the economic consequences of
ownership of such securities, whether any such aforementioned transaction is to
be settled by delivery of such securities or other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, or to enter into any such transaction, swap, hedge or
other arrangement, in each case during the seven days before and the 90-day
period (but in the case of the Company's initial public offering, the 180-day
period) beginning on the effective date of any underwritten public offering of
the Company's equity securities (including Piggyback Registrations) (or such
longer or shorter period as may be requested in writing by the managing
underwriter and agreed to in writing by the Company (the "Market Standoff
Period")), except as part of such underwritten registration if otherwise
permitted. In addition, each holder of Registrable Securities agrees to execute
any further letters, agreements and/or other documents requested by the Company
or its underwriters which are consistent with the terms of this Section 3(a).
The Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such Market Standoff
Period.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities, options, or rights 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 X-0, Xxxx X-0 or any successor forms), unless the underwriters managing
the registered public offering otherwise agree, and (ii) to the extent not
inconsistent with applicable law, shall cause each holder of its equity
securities, or any securities convertible into or exchangeable or exercisable
for equity securities, purchased from the Company at any time after the date of
this Agreement (other than in a registered public offering) to agree not to
effect any public sale or distribution (including sales pursuant to Rule 144) 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.
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4. Registration Procedures. Whenever the holders of Registrable
Securities 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, within 60 days after the end of the period within
which requests for registration may be given to the Company, file with the
Securities and Exchange Commission a registration statement 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
Investor 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 in writing 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 180 days (or, if such registration statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer) 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 such seller may reasonably
request in order to facilitate the 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 or advisable to enable such seller of Registrable
Securities to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller of Registrable Securities (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 Section 4(d), (ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such jurisdiction);
(e) promptly notify in writing 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 in light of the circumstances under which they were made,
and,
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at the request of the holders of a majority of the Registrable Securities
covered by such registration statement, the Company shall promptly prepare and
furnish to each such seller a reasonable number of copies of 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 in light of the circumstances under which they
were made; provided however that the Company may postpone the preparation and
delivery of such a supplement or amendment to such prospectus for up to 90 days
if the Company determines that delivery of such a supplement or amendment would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any of its Subsidiaries to acquire financing, engage in any
acquisition of assets or stock (other than in the ordinary course of business),
or engage in any merger, consolidation, tender offer, reorganization, or similar
transaction or require the Company to disclose any material nonpublic
information which could reasonably be likely to be detrimental to the Company
and its Subsidiaries; provided further that, in such event, the Company shall
notify the holders of Registrable Securities covered by such prospectus of such
delay and such holders shall cease using such prospectus and shall not make any
sales thereunder during such period; provided further that the Company may
postpone the preparation and delivery of such a supplement or amendment under
this Section 4(e) only once in any twelve-month period;
(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;
(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
Registrable Securities (including effecting a stock split or a combination of
stock);
(i) make available for inspection by any underwriter participating
in any disposition pursuant to such registration statement, and any attorney,
accountant, or other agent retained by any such 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 reasonably requested by any such underwriter,
attorney, accountant, or agent in connection with such registration statement
and assist and, at the request of any participating underwriter, use reasonable
best efforts to cause such officers or directors to participate in presentations
to prospective purchasers;
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(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) 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 equity securities 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;
(l) 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;
(m) obtain one or more cold comfort letters, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), 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 in such registered offering reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement); and
(n) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
5. Registration Expenses.
(a) Subject to Section 5(b) below, all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, travel expenses, filing expenses, messenger
and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company, and fees and disbursements of all
independent certified public accountants, underwriters including, if necessary,
a "qualified independent underwriter" within the meaning of the rules of the
National Association of Securities Dealers, Inc. (in each case, excluding
discounts and commissions), and other Persons retained by the Company or by
holders of Investor Registrable Securities or their affiliates on behalf of 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
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expenses (including 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 (or any successor or similar 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 Investor Registrable
Securities included in such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities, its
officers, directors, agents, and employees, and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities, and expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof), whether joint and several or several,
together with reasonable costs and expenses (including reasonable attorney's
fees) to which any such indemnified party may become subject under the
Securities Act or otherwise (collectively, "Losses") caused by, resulting from,
arising out of, based upon, or relating to (i) any untrue or alleged untrue
statement of material fact contained in (A) any registration statement,
prospectus or preliminary prospectus, or any amendment thereof or supplement
thereto or (B) any application or other document or communication (in this
Section 6, collectively called an "application") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration under the "blue sky" or securities laws thereof or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer, and controlling Person
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; provided that the Company shall not
be liable in any such case to the extent that any such Losses result from, arise
out of, are based upon, or relate to an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such prospectus, or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished in writing to the Company by such
holder about 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 after the Company has furnished such holder with a
sufficient number of copies of the same. 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
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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 will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, shall indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective officers, directors, agents, and employees, and each other Person who
controls the Company (within the meaning of the Securities Act) against any
Losses caused by, resulting from, arising out of, based upon, or relating to (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 in any application, or (ii) 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 made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein,
and such holder will reimburse the Company and each such other indemnified party
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; provided that the obligation to
indemnify will be individual, not joint and several, for each holder and shall
be limited 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 will (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,
then the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). The indemnified party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and disbursements of such counsel shall be at the expense
of the indemnified party unless employment of such counsel has been specifically
authorized by the indemnifying party in writing. The indemnifying party shall
pay the fees and expenses of one separate counsel (plus local counsel if
appropriate) for the indemnified party and any other indemnified persons if the
named parties to any such action (including any impleaded parties) include the
indemnifying party (or any of the directors of the indemnifying party) and the
indemnified party and (x) in the good faith judgment of the indemnified party
the use of joint counsel would present such counsel with an actual or potential
conflict of interest, (y) the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (or
its managers or directors) or (z) the indemnifying party failed to assume the
defense thereof.
- 10 -
(d) The indemnification provided for under this Agreement shall be
in addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract, and will remain in full
force and effect regardless of any investigation made or omitted 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
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any Losses referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other hand or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, then in such proportion as
is appropriate to reflect not only the relative fault referred to in clause (i)
above but also the relative benefit of the Company on the one hand and of the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other in connection with the statement or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the sellers of Registrable Securities and any other sellers participating in
the registration statement on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) to the Company bear to the total net proceeds from the offering
(before deducting expenses) to the sellers of Registrable Securities and any
other sellers participating in the registration statement. The relative fault of
the Company on the one hand and of the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged omission to state a material fact relates to information supplied by the
Company or by the sellers of Registrable Securities or other sellers
participating in the registration statement and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(f) The Company and the sellers of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this Section 6
were determined by pro rata allocation (even if the sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in Section 6(e) above. The amount paid or payable by an indemnified
party as a result of the Losses referred to in Section 6(e) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no seller of Registrable Securities shall be
required to contribute pursuant to this Section 6 any amount in excess of the
sum of (i) any amounts paid pursuant to Section 6(b) above and (ii) the net
proceeds received by such seller from the sale of Registrable Securities covered
by the registration statement filed pursuant hereto. 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.
- 11 -
7. Participation in Underwritten Registrations.
(a) No Person may participate in any underwritten registration
hereunder 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 (including pursuant to
the terms of any over-allotment or "green shoe" option requested by the managing
underwriter(s), provided that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; provided that 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 and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e) above, such Person will immediately
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(e). In the event
the Company shall give any such notice, the applicable time period mentioned in
Section 4(b) during which a Registration Statement is to remain effective shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to this Section 7(b) to and including the
date when each seller of a Registrable Security covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(e).
8. Additional Stockholders. In connection with the issuance of any
additional equity securities of the Company, the Company, only with the consent
of the holders of a majority of the Investor Registrable Securities, may permit
such Person to become a party to this Agreement and receive all of the rights
and obligations of a holder of any particular category of Registrable Securities
under this Agreement by obtaining an executed counterpart signature page to this
Agreement, and, upon such execution, such Person shall for all purposes be a
holder of such category of Registrable Securities and party to this Agreement.
9. Definitions. Unless otherwise stated, other capitalized terms
contained in this Agreement and not defined herein shall have the meanings set
forth in the Unit Purchase Agreement.
"Common Stock" means, collectively, the Company's common stock, par
value $0.01 per share, and any other class or series of authorized capital stock
of the Company that is not limited to a fixed sum or percentage of par or stated
value in respect of the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
- 12 -
"Executive Registrable Securities" means any shares of Common Stock
held as of the date hereof, or acquired hereafter through the exercise of
employee stock options, by the executive employees of the Company and its
Subsidiaries who are or become parties to this Agreement.
"Goldman Registrable Securities" means, (i) any Common Stock issued
or distributed in respect of units of the LLC issued to Goldman pursuant to the
Unit Purchase Agreement, (ii) any Common Stock issued or issuable with respect
to the securities referred to in clause (i) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization, and (iii) any other Common Stock
held by Persons holding securities described in clauses (i) or (ii) above.
"GTCR Registrable Securities" means, (i) any Common Stock issued or
distributed in respect of units of the LLC issued to the GTCR Investors pursuant
to the Unit Purchase Agreement, (ii) any Common Stock issued or issuable with
respect to the securities referred to in clause (i) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization, and (iii) any other Common Stock
held by Persons holding securities described in clauses (i) or (ii) above.
"HGF Registrable Securities" means, (i) any Common Stock issued or
distributed in respect of units of the LLC issued to the HGF Investors pursuant
to the Unit Purchase Agreement or the Management Agreement, (ii) any Common
Stock issued or issuable with respect to the securities referred to in clause
(i) above by way of dividend, distribution, split or combination of securities,
or any recapitalization, merger, consolidation or other reorganization, and
(iii) any other Common Stock held by Persons holding securities described in
clauses (i) or (ii) above.
"Management Agreement" means the Management Agreement, dated as of
the date hereof, by and among the LLC, the Company, HGF and others, as amended
and modified from time to time in accordance with its terms.
"Investor Registrable Securities" means the Goldman Registrable
Securities, the GTCR Registrable Securities and the HGF Registrable Securities,
collectively.
"Other Registrable Securities" means, (i) any Common Stock held as
of the date hereof, or acquired hereafter by the Other Stockholders and (ii)
common equity securities of the Company or a Subsidiary issued or issuable with
respect to the securities referred to in clause (i) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, an investment fund, any other business
entity and a governmental entity or any department, agency or political
subdivision thereof.
"Qualified IPO" means an underwritten initial public offering of the
common stock of the Company with gross proceeds of at least $50.0 million in a
firm commitment underwriting.
- 13 -
"Registrable Securities" means the Investor Registrable Securities,
the Executive Registrable Securities and the Other Registrable Securities. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they (i) have been distributed to the public
pursuant to an 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), (ii) unless the
respective Stockholder otherwise elects, have been distributed to the partners
of any of the Stockholder, (iii) have been effectively registered under a
registration statement including, without limitation, a registration statement
on Form S-8 (or any successor form), or (iv) have been repurchased by the
Company. In addition, all Registrable Securities held by any Person shall cease
to be Registrable Securities (provided that, for purposes of this provision, all
Investors and all Registrable Securities held by such Investors shall be treated
as Registrable Securities held by a single Person) when all such Registrable
Securities become eligible to be sold to the public through a broker, dealer, or
market maker pursuant to Rule 144 (or any similar provision then in force)
during a single 90-day period. For purposes of this Agreement, a Person shall be
deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire 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.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal law then in force, together with all rules and regulations
promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor federal law then in force, together with all rules
and regulations promulgated thereunder.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association,
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a
"Subsidiary" of any Person shall be given effect only at such times that such
Person has one or more Subsidiaries, and, unless otherwise indicated, the term
"Subsidiary" refers to a Subsidiary of the Company.
- 14 -
10. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor any
Subsidiary of the Company shall hereafter enter into any agreement with respect
to its securities that 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, or permit any change to occur, with respect to its
securities that 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 that would adversely affect the marketability of
such Registrable Securities in any such registration (including effecting a unit
split or a combination of units).
(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 any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement. Nothing contained in this Agreement shall be construed to confer upon
any Person who is not a signatory hereto any rights or benefits, whether as a
third-party beneficiary or otherwise.
(d) Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the Company or the holders of Registrable Securities unless
such modification, amendment, or waiver is approved in writing by the holders of
a majority of the Goldman Registrable Securities, the holders of a majority of
the GTCR Registrable Securities, the holders of a majority of the HGF
Registrable Securities and the Company; provided that no such amendment or
modification that would materially and adversely affect holders of one class or
group of Registrable Securities in a manner different than holders of the
Investor Registrable Securities (other than amendments and modifications
required to implement the provisions of Section 8) shall be effective against
the holders of such class or group of Registrable Securities without the prior
written consent of holders of at least a majority of Registrable Securities of
such class or group materially and adversely affected thereby. No failure by any
party to insist upon the strict performance of any covenant, duty, agreement, or
condition of this Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement, or condition.
(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 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. Notwithstanding
the foregoing,
- 15 -
in order to obtain the benefit of this Agreement, any subsequent holder of
Registrable Securities must execute a counterpart to this Agreement, thereby
agreeing to be bound by the terms hereof, and such transfer must not violate the
requirements of any other agreement(s) to which the transferor or the applicable
Registrable Securities are bound.
(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 invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts (including by means of facsimile), 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; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs
shall include the plural and vice versa. The use of the word "including" in this
Agreement shall be, in each case, by way of example and without limitation. The
use of the words "or," "either," and "any" shall not be exclusive. Reference to
any agreement, document, or instrument means such agreement, document, or
instrument as amended or otherwise modified from time to time in accordance with
the terms thereof, and, if applicable, hereof.
(i) Governing Law. The Delaware General Corporation Law shall govern
all issues and questions concerning the relative rights of the Company and its
stockholders. All other issues and questions concerning the construction,
validity, interpretation, and enforcement of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
(j) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
- 16 -
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) 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), mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid or telecopied to the recipient
(with hard copy sent to the recipient by reputable overnight courier service
(charges prepaid) that same day) if telecopied before 5:00 p.m. Chicago,
Illinois time on a business day, and otherwise on the next business day. Such
notices, demands, and other communications shall be sent to each Investor, each
Executive, and each Other Stockholder at the addresses indicated on the Schedule
of Holders and to the Company at the address of its corporate headquarters 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.
(l) No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
* * * * *
- 17 -
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
TRIAD HOLDINGS INC.
By: /s/ J. Xxxxx Staff
---------------------------------------
Name: J. Xxxxx Staff
Its: CEO
GS Capital Partners 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXXXX SACHS DIRECT INVESTMENT FUND 2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO. BETEILGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
MTGLQ INVESTORS, L.P.
By: MLQ L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Its: Vice President
GTCR Fund VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
GTCR Fund VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CO-INVEST II, L.P.
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
XXXXXX'X XXXX/FORD LTD.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Its: General Partner
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF HOLDERS
INVESTORS
GS Capital Partners 2000, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GS Capital Partners 2000 Employee Fund, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GS Capital Partners 2000 Offshore, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxxxx Sachs Direct Investment Fund 2000, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GS Capital Partners 2000 GmbH & Co. Beteilgungs KG
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
MTGLQ Investors, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GTCR Fund VIII, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
GTCR Fund VIII/B, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
GTCR Co-Invest II, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Xxxxxx'x Xxxx/Ford Ltd.
000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
EXECUTIVES
Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
OTHER STOCKHOLDERS
None
