EXHIBIT 4.3
REGISTRATION AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
March 1, 2005, by and among (i) NewQuest Holdings, Inc., a Delaware Corporation
(the "Company"), (ii) GTCR Fund VIII, L.P., a Delaware limited partnership
("Fund VIII"), GTCR Fund VIII/B, L.P., a Delaware limited partnership ("Fund
VIII/B"), GTCR Co-Invest II, L.P., a Delaware limited partnership ("GTCR
Co-Invest"), and any investment fund managed by GTCR Xxxxxx Xxxxxx XX, L.L.C., a
Delaware limited liability company ("GTCR") or any of its Affiliates, that at
any time acquires securities of the Company and executes a counterpart of this
Agreement or otherwise agrees to be bound by this Agreement (each, an "Investor"
and collectively, the "Investors"), (iii) the Persons listed on the attached
Schedule of Holders under the heading "Executives" and each of the other
executives or employees of the Company or its Subsidiaries or persons who were
executives or employees of the Company or its Subsidiaries at any time
subsequent to July 1, 2004 who, at any time, acquires equity securities 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 (iv) the Persons listed on the attached
Schedule of Holders under the heading "Other Stockholders" and each of the other
Persons set forth from time to time on the attached "Schedule of Holders" under
the heading "Other Stockholders" who, at any time, acquires equity securities in
accordance with Section 8 hereof and executes a counterpart of this Agreement or
otherwise agrees to be bound by this Agreement (each, an "Other Stockholder,"
and collectively, the "Other Stockholders"). 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 10 hereof.
The Company and the Investors are party to the Stock Purchase
Agreement. The Company and certain Executives and Other Stockholders are party
to a Purchase and Exchange Agreement, dated as of November 10, 2004, as amended
(the "Purchase and Exchange Agreement"). In order to induce the Investors to
enter into the Stock Purchase Agreement and to induce certain Executives and
Other Stockholders to consummate the transactions contemplated by the Purchase
and Exchange Agreement, the Company has agreed to provide the rights set forth
in this Agreement.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. The holders of a majority of the
Investor Registrable Securities may 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. In addition,
subject to the other terms and conditions of this paragraph 1, (i) at any time
after the Other Stockholders Restriction Termination Date, the holders of a
majority of the Other Registrable Securities may request Short Form
Registrations and (ii) at any time after the Executives
Restriction Termination Date, the holders of a majority of the Executive
Registrable Securities and Other Registrable Securities, collectively, may
request Short Form Registrations. 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 price range
for such offering. If such request is delivered to the Company on or prior to
the Other Stockholders Restriction Termination Date, then within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Investor Registrable Securities
and shall include in such registration (and in all related registrations and
qualifications under blue sky laws or in compliance with other registration
requirements and in any related underwriting) all Investor 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. If
such request is delivered to the Company after the Other Stockholders
Restriction Termination Date but on or prior to the Executives Restriction
Termination Date, then within ten days after receipt of any such request, the
Company shall give written notice of such requested registration to all other
holders of Investor Registrable Securities and Other Registrable Securities and
shall include in such registration (and in all related registrations and
qualifications under blue sky laws or in compliance with other registration
requirements and in any related underwriting) all Investor Registrable
Securities and Other 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. If a request for Demand Registration is
delivered to the Company after the Executives Restriction Termination Date, then
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 (and in all
related registrations and 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 15 days after the receipt of the Company's
notice.
(b) Investor Long-Form Registrations. The holders of a majority of the
Investor Registrable Securities shall be entitled to request an unlimited number
of Long-Form Registrations in which the Company shall pay all Registration
Expenses (as defined in Section 5); provided that the aggregate offering value
of the Investor Registrable Securities requested to be registered in any
Long-Form Registration pursuant to this sentence must equal at least
$10,000,000. All Long-Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided to the Investors pursuant to Section 1(b), (x) the
holders of a majority of the Investor Registrable Securities 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 Investor Registrable Securities requested to be registered in any
Short-Form Registration pursuant to this clause (x) must equal at least
$5,000,000, and (y) after the Other Stockholders Restriction Termination Date,
the holders of a majority of the Other Registrable Securities shall be entitled
to request an unlimited number of Short-Form Registrations in which the Company
shall pay all Registration Expenses; provided that the
-2-
aggregate offering value of the Other Registrable Securities requested to be
registered in any Short-Form Registration pursuant to this clause (y) must equal
at least $5,000,000, and (z) after the Executives Restriction Termination Date,
the holders of a majority of the Executive Registrable Securities and Other
Registrable Securities, collectively, 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
Executive Registrable Securities and Other Registrable Securities requested to
be registered in any Short-Form Registration pursuant to this clause (y) must
equal at least $5,000,000. The 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 reasonable best efforts to
make Short-Form Registrations on Form S-3 available for the sale of Registrable
Securities.
(d) Priority on Demand Registrations.
(i) Prior to the Other Stockholders Restriction Termination Date, the
Company shall not include in any Demand Registration any securities that are not
Investor Registrable Securities without the prior written consent of the holders
of a majority of the Investor Registrable Securities included in such
registration. Prior to the Other Stockholders Restriction Termination Date, if a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that, in their opinion, the number of Investor
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering exceeds the number of Investor 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 Investor Registrable Securities, the number of Investor
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 Investor Registrable Securities owned by each such holder.
(ii) After the Other Stockholders Restriction Termination Date but
prior to the Executives Restriction Termination Date, the Company shall not
include in any Demand Registration any securities that are not Investor
Registrable Securities or Other Registrable Securities without the prior written
consent of the holders of a majority of the Investor Registrable Securities. On
or after the Other Stockholders Restriction Termination Date but prior to the
Executives Restriction Termination Date, if a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number of Investor Registrable Securities,
Other Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Investor
Registrable Securities, Other 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
and Other Registrable Securities to be included in such registration,
collectively, then the Company shall include in such registration, prior to the
inclusion of any securities that are not Investor Registrable Securities or
Other
-3-
Registrable Securities, the number of Investor Registrable Securities and
Other 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 Investor Registrable Securities and Other Registrable Securities owned
by each such holder.
(iii) After the Executives Restriction Termination Date, 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 Registrable Securities. After the Executives Restriction
Termination Date, 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 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 180 days the filing or the effectiveness of a registration statement for a
Demand Registration if (i) prior to the Other Stockholders Restriction
Termination Date, 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 (other than in the ordinary course of business), or engage in any
merger, consolidation, tender offer, reorganization, or similar transaction;
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, (ii) on or after the Other Stockholders Restriction
Termination Date but prior to the Executives Restriction Termination Date, the
Company and the holders of a majority of the Investor Registrable Securities and
Other Registrable Securities, collectively, 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 (other than in the ordinary course of business), or engage in
any merger, consolidation, tender offer, reorganization, or similar transaction;
provided that, in such event, the holders of Investor Registrable Securities or
the holders of Other 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
-4-
registration, or (iii) after the Executives Restriction Termination Date, the
Company and the holders of a majority of the 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 (other than in the ordinary course
of business), or engage in any merger, consolidation, tender offer,
reorganization, or similar transaction; provided that, in such event, the
holders of 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. Prior to the Other Stockholders
Restriction Termination Date, 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. On
or after the Other Stockholders Restriction Termination Date but prior to the
Executives Restriction Termination Date, the holders of a majority of the
Investor Registrable Securities and the Other Registrable Securities included in
any Demand Registration, collectively, shall have the right to select the
investment banker(s) and manager(s) to administer the offering. On or after the
Executives Restriction Termination Date, the holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to jointly select the investment banker(s) and manager(s) to administer the
offering.
(g) Other Registration Rights. Prior to the Other Stockholders
Restriction Termination Date, 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. On or after the Other Stockholders Restriction Termination Date but
prior to the Executives Restriction Termination Date, 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 and the Other Registrable Securities,
collectively. After the Executives Restriction Termination Date, 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 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 omits any fact necessary to
make the statements therein not misleading in light of the circumstances under
which they were made.
-5-
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities (including any proposed registration of the Company's
securities 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 (x) at any time on or prior to the Other Stockholders
Restriction Termination Date, 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 Investor Registrable Securities of its intention to effect such a
registration and shall include in such registration (and in all related
registrations and qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Investor
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, (y) at any time on or after the Other Stockholders Restriction
Termination Date but prior to the Executives Restriction Termination Date, 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 Investor Registrable
Securities and Other Registrable Securities of its intention to effect such a
registration and shall include in such registration (and in all related
registrations and qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Investor
Registrable Securities and Other 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 and (z) at any time on or after the
Executives Restriction Termination Date, 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 (and in all related
registrations and 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 receipt of the Company's notice. Any
registration of Registrable Securities pursuant to this Section is hereinafter
referred to as a "Piggyback Registration."
(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 pursuant to
Section 2(a) above, pro rata
-6-
among the holders of such Registrable Securities on the basis of the number of
shares 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 pursuant to Section 2(a) above,
pro rata among the holders of such Registrable Securities on the basis of the
number of shares 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 must be approved by (i) the holders of a majority of the
Investor Registrable Securities included in such Piggyback Registration if such
underwritten offering is consummated at any time prior to the Other Stockholders
Restriction Termination Date, (ii) the holders of a majority of the Investor
Registrable Securities and Other Registrable Securities included in such
Piggyback Registration, collectively, if such underwritten offering is
consummated at any time on or after the Other Stockholders Restriction
Termination Date but prior to the Executives Restriction Termination Date, and
(iii) the holders of a majority of the Registrable Securities included in such
Piggyback Registration if such underwritten offering is consummated at any time
on or after the Executives Restriction Termination Date. Such approval shall not
be unreasonably withheld or delayed.
(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 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 S-8 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.
(a) To the extent not inconsistent with applicable law, each holder of
Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options, or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any initial public offering or any
underwritten
-7-
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, subject to the terms and conditions of the Stockholders
Agreement.
(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 S-8 or any successor form), 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.
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 reasonable 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 (i) prior to the Other Stockholders Restriction
Termination Date, the counsel selected by the holders of a majority of the
Investor Registrable Securities covered by such registration statement, (ii) on
or after the Other Stockholders Restriction Termination Date but prior to the
Executives Restriction Termination Date, the counsel selected by the holders of
a majority of the Investor Registrable Securities and Other Registrable
Securities covered by such registration statement, collectively and (ii) on or
after the Executives Restriction Termination Date, the counsel selected by the
holders of a majority of the Registrable Securities, 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
-8-
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 reasonable 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, (i) prior to the Other Stockholders Restriction Termination Date, at the
request of the holders of a majority of the Investor Registrable Securities
covered by such registration statement, (ii) on or after the Other Stockholders
Restriction Termination Date but prior to the Executives Restriction Termination
Date, at the request of the holders of a majority of the Investor Registrable
Securities covered by such registration statement, collectively, or (iii) on or
after the Executives Restriction Termination Date, at the request of the holders
of a majority of the Registrable Securities, 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;
(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
-9-
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 (X) (i) prior
to the Other Stockholders Restriction Termination Date, the holders of a
majority of the Investor Registrable Securities being sold, (ii) on or after the
Other Stockholders Restriction Termination Date but prior to the Executives
Restriction Termination Date, the holders of a majority of the Investor
Registrable Securities and Other Registrable Securities being sold,
collectively, or (iii) on or after the Executives Restriction Termination Date,
the holders of a majority of the Registrable Securities being sold or (Y) 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 shares);
(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 reasonable request of any participating underwriter, use
reasonable best efforts to cause such officers or directors to participate in
presentations to prospective purchasers;
(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 reasonable 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
-10-
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 (i) prior to the Other
Stockholders Restriction Termination Date, the holders of a majority of the
Investor Registrable Securities being sold in such registered offering
reasonably request (provided that such Investor Registrable Securities
constitute at least 10% of the securities covered by such registration
statement), (ii) on or after the Other Stockholders Restriction Termination Date
but prior to the Executives Restriction Termination Date, the holders of a
majority of the Investor Registrable Securities and Other Registrable Securities
being sold in such registered offering reasonably request, collectively
(provided that such Investor Registrable Securities and Other Registrable
Securities, collectively, constitute at least 10% of the securities covered by
such registration statement) and (iii) on or after the Executives Restriction
Termination Date, 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 Registrable Securities or their affiliates on behalf of the Company
to the extent permitted by this Agreement (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 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 requested prior to the Other Stockholders Restriction Termination
Date, 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
-11-
Investor Registrable Securities included in such registration. In connection
with each Demand Registration and each Piggyback Registration requested on or
after the Other Stockholders Restriction Termination Date but prior to the
Executives Restriction Termination Date, 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 and Other Registrable Securities included in
such registration, collectively. In connection with each Demand Registration and
each Piggyback Registration on or after the Executives Restriction Termination
Date, 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.
(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
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
-12-
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 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). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will 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.
(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
-13-
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 hand 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 hand
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.
-14-
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 any Registrable Securities 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 prior to the Other Stockholders
Restriction Termination Date, the Company, 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 succeed to 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.
In connection with the issuance of any additional equity securities of the
Company on or after the Other Stockholders Restriction Termination Date, the
Company, with the consent of the holders of a majority of the Investor
Registrable Securities and Other Registrable Securities, collectively, may
permit such Person to become a party to this Agreement and succeed to 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. In connection with the issuance of any additional equity
securities of the Company on or after the
-15-
Executives Restriction Termination Date, the Company, with the consent of the
holders of a majority of the Registrable Securities, may permit such Person to
become a party to this Agreement and succeed to 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. Subsidiary Public Offering. If, after an initial public offering of
the equity securities of a Subsidiary of the Company, the Company distributes
securities of such Subsidiary to stockholders of the Company, then the rights
and obligations of the Company pursuant to this Agreement shall apply, mutatis
mutandis, to such Subsidiary, and the Company shall cause such Subsidiary to
comply with such Subsidiary's obligations under this Agreement.
10. Definitions.
(a) "Common Stock" means any class of the Company's common stock.
(b) "Executive Registrable Securities" means, (i) any Common Stock
issued to the Executives, (ii) any Common Stock issued to the Executives upon
conversion of Preferred Stock issued to the Executives pursuant to the Stock
Purchase Agreement, and (iii) common equity securities of the Company or a
Subsidiary issued or issuable with respect to the securities referred to in
clauses (i) or (ii) above by way of dividend, distribution, split or combination
of securities, or any recapitalization, merger, consolidation or other
reorganization.
(c) "Executives Restriction Termination Date" means the earlier of (x)
the second anniversary of the Company's initial public offering and (y) the
receipt of proceeds by the Investors from the sale of capital stock of the
Company held by the Investors in an aggregate amount of at least $134,068,683.
(d) "Investor Registrable Securities" means, (i) any Common Stock
issued to the Investors pursuant to the Stock Purchase Agreement, (ii) any
Common Stock issued to the Investors upon conversion of Preferred Stock issued
to the Investors pursuant to the Stock Purchase Agreement, (iii) common equity
securities of the Company or a Subsidiary issued or issuable with respect to the
securities referred to in clauses (i) or (ii) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization, and (iv) other Common Stock held
by Persons holding securities described in clauses (i), (ii) or (iii) above.
(e) "Other Registrable Securities" means, (i) any Common Stock issued
or distributed to the Other Stockholders, (ii) any Common Stock issued to the
Other Stockholders upon conversion of Preferred Stock issued to the Other
Stockholders pursuant to the Stock Purchase Agreement, and (iii) common equity
securities of the Company or a Subsidiary issued or issuable with respect to the
securities referred to in clauses (i) or (ii) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization.
-16-
(f) "Other Stockholders Restriction Termination Date" means the
earlier of (x) the first anniversary of the Company's initial public offering
and (y) the receipt of proceeds by the Investors from the sale of capital stock
of the Company held by the Investors in an aggregate amount of at least
$134,068,683.
(g) "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.
(h) "Preferred Stock" means any class of the Company's preferred
stock.
(i) "Purchase and Exchange Agreement" means the purchase and exchange
agreement, dated as of November 10, 2004, by and among NewQuest, LLC, a Texas
limited liability company, the Persons listed on the Schedule of Sellers
attached thereto (collectively referred to therein as the "Sellers"), Xxxxxxx X.
Xxxxxxxxxxxx, as the Sellers' Representative, the Company, and NewQuest, Inc., a
Delaware corporation.
(j) "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 limited
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; provided that this sentence shall
not apply to shares of the common equity securities of the Company issuable upon
the exercise of unvested options originally issued to employees or former
employees of the Company or its Subsidiaries.
(k) "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.
-17-
(l) "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.
(m) "Stock Purchase Agreement" means the stock purchase agreement,
dated as of March 1, 2005, among the Company, the Investors and certain other
Persons.
(n) "Stockholders Agreement" means that certain Stockholders
Agreement, dated as of the date hereof, by and among the Company, the Investors
and the other parties thereto, as amended from time to time pursuant to its
terms.
(o) "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.
(p) Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase and Exchange Agreement.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not 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
stock split or a combination of shares).
-18-
(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 (i) the Company unless such modification, amendment or waiver
is approved in writing by the Company, or (ii) the holders of Registrable
Securities unless such modification, amendment, or waiver is approved in writing
by the holders of a majority of the Investor Registrable Securities and the
holders of a majority of the Executive Registrable Securities and Other
Registrable Securities, collectively; 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 any other
class or group of 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 permitted 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 permitted holder of Registrable
Securities. The rights and obligations of each Investor under this Agreement may
be assigned by each such Investor at any time, in whole or in part, to another
Investor or any investment fund managed by GTCR, GTCR Xxxxxx Xxxxxx, L.L.C., or
any successor thereto. Notwithstanding the foregoing, 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.
(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,
-19-
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 telecopied signature pages or
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 Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(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
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
-20-
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.
* * * * *
-21-
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
NEWQUEST HOLDINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Its: 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:
------------------------------------
Name:
----------------------------------
Its: Principal
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:
------------------------------------
Name:
----------------------------------
Its: Principal
GTCR CO-INVEST II, L.P.
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Its: Principal
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
