Exhibit 7
REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT (this "Agreement") is made as of January
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27, 2000, by and among (i) Synagro Technologies, Inc., a Delaware corporation
(together with its successors and permitted assigns, the "Company") and (ii)
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GTCR Fund VII, L.P., a Delaware limited partnership ("GTCR Fund VII") and GTCR
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Capital Partners, L.P., a Delaware limited partnership ("GTCR Capital") (each of
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GTCR Fund VII and GTCR Capital, an "Investor," and collectively, the
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"Investors").
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The Company and GTCR Fund VII are parties to a Purchase Agreement of
even date herewith (the "Purchase Agreement"). The Company and GTCR Capital are
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parties to a Senior Subordinated Loan Agreement of even date herewith (the "Loan
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Agreement"). In connection with the transaction contemplated by the Loan
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Agreement, the Company will issue to GTCR Capital warrants (the "Warrants") to
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purchase shares of the Company's Convertible Preferred Stock. In order to
induce GTCR Fund VII to enter into the Purchase Agreement and GTCR Capital to
enter into the Loan 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 closings under the Purchase Agreement and
the Loan Agreement. Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in Section 8 hereof.
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The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. Subject to the restrictions set forth
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below, the holders of a majority of the 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
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Registrations"), or on Form S-2 or S-3 (including pursuant to Rule 415 under the
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Securities Act) or any similar short-form registration ("Short-Form
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Registrations"), if available. All registrations requested pursuant to this
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Section 1(a) are referred to herein as "Demand Registrations." Each request for
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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. 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 re
quests for inclusion therein within 15 days after the receipt of the Company's
notice.
(b) Long-Form Registrations. The holders of Registrable Securities
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shall be entitled to request two (2) Long-Form Registrations plus one (1)
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additional Long-Form Registration
for each additional $25 million invested in the Company (either on one or
multiple occasions) through the purchase of Convertible Preferred Stock pursuant
to the Purchase Agreement, in which the Company shall pay all Registration
Expenses (as defined in Section 5). All Long-Form Registrations shall be
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underwritten registrations. A registration shall not count as one of the
permitted Long-Form Registrations until it has become effective, and the last
Long-Form Registration shall not count as one of the permitted Long-Form
Registrations unless the holders of Registrable Securities are able to register
and sell at least 90% of the Registrable Securities requested to be included in
such registration; provided that in any event the Company shall pay all
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Registration Expenses in connection with any Long-Form Registration whether or
not it has become effective and whether or not such registration has counted as
one of the permitted Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to Section 1(b), the holders of Registrable
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Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses;
provided, however, that all Short-Form Registrations shall be for a minimum of
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$10 million of Registrable Securities, based on the anticipated per share price
range for such offering. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. 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 the holder(s) of a majority of Registrable Securities, 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
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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
Registrable Securities have been sold pursuant to the Required Registration, or
(ii) the date as of which the holder(s) of Registrable Securities (assuming such
holder(s) are affiliates of the Company) are able to sell all of the Registrable
Securities then held be them within a ninety-day period in compliance with Rule
144 under the Securities Act.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
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, 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, prior to the inclusion of any securities which are not Registrable
Securities, the number of Registrable Securities requested to be included which,
in the opinion of such underwriters, can be sold in an orderly manner within the
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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.
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(i) 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
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and in which there was no reduction in the number of Registrable Securities
requested to be included.
(ii) The Company may postpone for up to 120 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's Board of Directors determines 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 (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
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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 under this Section 1(e)(ii)
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only once in any twelve-month period and two times in the aggregate.
(f) Selection of Underwriters. In the case of an underwritten
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offering, the Company shall have the right to select the investment banker(s)
and manager(s) to administer the offering, subject to the approval of the
holders of a majority of the Registrable Securities included in such Demand
Registration, which approval shall not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement,
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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.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its securities under the Securities Act (other than (i) pursuant to a Demand
Registration, to which Section 1 is applicable or (ii) in connection with
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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
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notice (and in any
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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
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
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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 and (ii) second, all
other securities (including the Registrable Securities) requested to be included
in such registration, pro rata among the holders of such securities on the basis
of the number of shares owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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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
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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 and (ii) second, all other securities
(including Registrable Securities) requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
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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 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.
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3. Other Sales.
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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, in an amount of more than 5% of the then-outstanding
shares of Common Stock (as adjusted for stock splits, stock dividends,
recapitalizations, and similar transactions), 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
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use commercially reasonable 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 commercially reasonable efforts to cause such
registration statement to become effective (provided that, before filing a
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registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to the counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) notify 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
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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 any supplemental 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 commercially reasonable 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
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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
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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, 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;
(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;
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(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
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 request of any participating underwriter, use
commercially reasonable efforts to cause such officers or directors to
participate in presentations to prospective purchasers;
(j) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) 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;
(m) use commercially reasonable 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;
(n) 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
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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
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least 10% of the securities covered by such registration statement), which
letter or letters shall be addressed to the underwriters; and
(o) 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, which opinion and other documents shall be addressed to the
underwriters and the holders of such Registrable Securities.
5. Registration Expenses.
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(a) Subject to Section 5(b) below, all expenses incident to the
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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
(all such expenses being herein called "Registration Expenses"), shall be borne
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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, 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.
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(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.
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(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,
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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 covering
the sale of Registrable Securities or (B) any application or other document or
communication (in this Section 6, collectively called an "application") executed
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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
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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 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
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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
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that the obligation to indemnify will be individual, not joint and several, for
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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
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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 written 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 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
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unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any
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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
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 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
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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
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party as a result of the Losses referred to in Section 6(e) above shall be
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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
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required to contribute pursuant to this Section 6 any amount in excess of the
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result of (i) the net proceeds received by such seller from the sale of
Registrable Securities covered by the registration statement filed pursuant
hereto minus (ii) any amounts paid pursuant to Section 6(b) above. No Person
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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.
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
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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. Definitions.
-----------
"Common Stock" means any class of the Company's common stock.
------------
"Convertible Preferred Stock" means the Series D Preferred (including
---------------------------
that acquired upon conversion of the Series C Preferred) and all subsequent
series of convertible preferred stock issued or to be issued in connection with
the Purchase Agreement.
"Registrable Securities" means (i) any Common Stock issued or issuable
----------------------
upon conversion of the Preferred Stock (x) issued pursuant to the Purchase
Agreement or (y) issued or issuable upon exercise of the Warrants (whether
issued before, on, or after the Closing Date) and (ii) any other shares of
Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with an exchange or combination of shares,
recapitalization, merger, consolidation, or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they (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 Investor
otherwise elects, have been distributed to the limited partners of any of the
Investors, (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
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repurchased by the Company. 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.
"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.
"Series C Preferred" means the Corporation's Series C Convertible
------------------
Preferred Stock, par value $.002 per share.
"Series D Preferred" means the Corporation's Series D Convertible
------------------
Preferred Stock, par value $.002 per share.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Purchase Agreement.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
--------------------------------------------
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration (including
effecting a stock split or a combination of shares).
(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
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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 Company
and the holders of at least a majority of the Registrable Securities then in
existence; 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, 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, 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 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 prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a 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
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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 corporate law of the State of Delaware 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 Illinois, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
(j) Notices. All notices, demands, or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands, and other
communications shall be sent to each Investor 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.
(k) Entire Agreement. This Agreement, those documents expressly
----------------
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(l) No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting to 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.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
SYNAGRO TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Its: Chairman/CEO
GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
SIGNATURE PAGE TO THE REGISTRATION AGREEMENT
SCHEDULE OF HOLDERS
-------------------
GTCR FUND VII, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
GTCR CAPITAL PARTNERS, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
