REGISTRATION RIGHTS AGREEMENT
BETWEEN
INSIGHT HEALTH SERVICES CORP.
AND
CERTAIN INVESTORS DEFINED HEREIN
DATED AS OF OCTOBER 14, 1997
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of October __, 1997, between InSight Health Services Corp.,
a Delaware corporation (the "Company"), and Carlyle Partners II, L.P., a
Delaware limited partnership ("XX XX"), Xxxxxxx Partners III, L.P., a
Delaware limited partnership ("CP III"), Carlyle International Partners II,
L.P., a Cayman Islands exempted limited partnership ("CIP II"), Carlyle
International Partners III, L.P., a Cayman Islands exempted limited
partnership ("CIP III"), C/S International Partners, a Cayman Islands general
partnership ("C/S"), the State Board of Administration of Florida ("SBAF"),
Carlyle Investment Group, L.P., a Delaware limited partnership("CIG"),
Carlyle-Insight International Partners, L.P., a Cayman Islands exempted
limited partnership ("C-IIP"), and Carlyle-Insight Partners, L.P., a Delaware
limited partnership ("C-IP") (XX XX, CP III, CIP II, CIP III, C/S, SBAF, CIG,
C-IIP and C-IP, collectively, the "Investors" and, individually, an
"Investor"). In order to induce the Investors to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
Capitalized terms not otherwise defined herein shall have the
respective meanings given them in the Purchase Agreement. As used in this
Agreement, the following capitalized terms shall have the following meanings:
"Board of Directors" shall mean the Board of Directors of the
Company.
"Claim" shall mean any loss, claim, damages, liability or expense
(including the reasonable costs of investigation and reasonable legal fees
and expenses).
"Common Stock" shall mean the Common Stock, par value $.001 per
share, of the Company.
"Demand Registration" shall mean a registration pursuant to
Section 2 hereof.
"Equity Security" shall mean any capital stock of the Company or
any security convertible, with or without consideration, into any such stock,
or any security carrying any warrant or right to subscribe for or purchase
any such stock, or any such warrant or right.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
from time to time amended.
"Firm Commitment Underwritten Offering" shall mean an offering in
which the underwriters agree to purchase securities for distribution pursuant
to a Registration Statement under the Securities Act and in which the
obligation of the underwriters is to purchase all the securities being
offered if any are purchased.
"GE" shall mean General Electric Company, a New York corporation
and its Affiliates.
"GE Registrable Securities" shall mean (a) the shares of Common
Stock issued or issuable upon conversion of the Series C Preferred Stock or
Series D Preferred Stock, whether or not owned by GE; (b) the shares of
Common Stock issued or issuable upon exercise of any GE Warrants, whether or
not owned by GE; (c) any securities issued or issuable with respect to such
Common Stock by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or
reorganization; and (d) any shares of Common Stock or securities issued or
issuable with respect to such Common Stock as provided in (c) above, acquired
by GE from the Company subsequent to the date hereof, whether or not owned by
GE at the time of a Registration; provided that any such share or other
security shall be deemed to be Registrable Securities only if and so long as
it is a Transfer Restricted Security.
"GE Registration Rights Agreement" shall mean a Registration
Rights Agreement substantially in the form of this Agreement entered into
between GE and the Company as of the date hereof.
"GE Warrants" shall mean the warrants to purchase Common Stock
issued pursuant to a Warrant Agreement dated of even date herewith by and
between the Company and GE.
"Holder" shall mean the beneficial owner of a security. For all
purposes of this Agreement, the Company shall be entitled to treat the record
owner of a security as the beneficial owner of such security unless the
Company has been given written notice of the existence and identity of a
different beneficial owner. A Holder of Preferred Stock shall be deemed to
be the Holder of the Common Stock into which such Preferred Stock could be
converted.
"Indemnified Holder" shall mean any Holder of Registrable
Securities, any officer, director, employee or agent of any such Holder and
any Person who controls any such Holder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act.
"Misstatement" shall mean an untrue statement of a material fact
or an omission to state a material fact required to be stated in a
Registration Statement or Prospectus or necessary to make the statements in a
Registration Statement, Prospectus or preliminary prospectus not misleading.
"Person" shall mean a natural person, partnership, corporation,
business trust, association, joint venture or other entity or a government or
agency or political subdivision thereof.
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"Piggyback Registration" shall mean a registration pursuant to
Section 3 hereof.
"Preferred Stock" shall mean the Series B Convertible Preferred
Stock of the Company being issued pursuant to the Purchase Agreement and
Series D Preferred Stock of the Company issued or issuable upon conversion of
the Series B Convertible Preferred Stock.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as supplemented by any and all prospectus supplements
and as amended by any and all post-effective amendments and including all
material incorporated by reference in such prospectus.
"Purchase Agreement" shall mean that certain Securities Purchase
Agreement dated as of the date hereof between the Company and the Investors.
"Registrable Securities" shall mean (a) the shares of Common
Stock issued or issuable upon conversion of the Preferred Stock, whether or
not owned by the Investors, (b) the shares of Common Stock issued or issuable
upon exercise of any Warrants, whether or not owned by the Investors, (c) any
securities issued or issuable with respect to such Common Stock by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or reorganization; and (d) any shares
of Common Stock or securities issued or issuable with respect to such Common
Stock as provided in (c) above, acquired by the Investors from the Company
subsequent to the date hereof, whether or not owned by the Investors at the
time of a Registration; provided that any such share or other security shall
be deemed to be Registrable Securities only if and so long as it is a
Transfer Restricted Security.
"Registration" shall mean a Demand Registration or a Piggyback
Registration.
"Registration Expenses" shall mean the out-of-pocket expenses of
a Registration, including:
(1) all registration and filing fees (including fees with respect
to filings required to be made with the National Association of
Securities Dealers);
(2) fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with blue sky
qualifications of the Registrable Securities and determinations
of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a
majority of the Registrable Securities being sold may
designate);
(3) printing, messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company and of not
more than one firm of attorneys for the sellers of the
Registrable Securities;
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(5) expenses of the underwriters and fees and disbursements of
counsel for the underwriters, in each case, to the extent
required to be paid pursuant to an underwriting agreement
relating to a Registration;
(6) fees and disbursements of all independent certified public
accountants of the Company incurred in connection with such
Registration (including the expenses of any special audit and
"cold comfort" letters incident to such registration);
(7) premiums and other costs of securities acts liability insurance
if the Company so desires or if the underwriters so require or
selling holders of Registrable Securities reasonably so
require; and
(8) fees and expenses of any other Persons retained by the Company.
"Registration Statement" shall mean any registration statement
under the Securities Act on an appropriate form (which form shall be
available for the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof and shall include all
financial statements required by the SEC to be filed therewith) which covers
Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus included in such registration statement, amendments
(including post-effective amendments) and supplements to such registration
statement, and all exhibits to and all material incorporated by reference in
such registration statement.
"Securities Act" shall mean the Securities Act of 1933, as from
time to time amended.
"SEC" shall mean the Securities and Exchange Commission.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock of the Company.
"Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock of the Company.
"Transfer Restricted Security" shall mean a security that has not
been sold to or through a broker, dealer or underwriter in a public
distribution or other public securities transaction or sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Rule 144 promulgated thereunder (or any successor rule).
The foregoing notwithstanding, a security shall remain a Transfer Restricted
Security until all stop transfer instructions or notations and restrictive
legends with respect to such security have been lifted or removed.
"Underwriters' Commissions" shall mean discounts of and
commissions to underwriters, selling brokers, dealer managers or similar
securities professionals relating to the distribution of the Registrable
Securities.
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"Underwritten Registration" or "Underwritten Offering" shall mean
a registration in which securities of the Company are sold to an underwriter
for distribution to the public.
"Warrants" shall mean the warrants to purchase Common Stock
issued pursuant to a Warrant Agreement dated of even date herewith by and
between the Company and the Investors.
Section 2. DEMAND REGISTRATIONS
(a) TIMING OF DEMAND REGISTRATIONS.
The Investors (on behalf of themselves and all permitted
assignees who are Holders of Registrable Securities) may request at any time
that the Company file a Registration Statement under the Securities Act on an
appropriate form (which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof and shall include all financial statements required by
the SEC to be filed herewith) covering the shares of Registrable Securities
that are the subject of such request.
(b) NUMBER OF DEMAND REGISTRATIONS; REQUIRED THRESHOLD.
The Company shall be obligated to prepare, file and cause to
become effective pursuant to this Section 2 no more than two (2) Registration
Statements in the aggregate for the Investors (on behalf of themselves and
all permitted assignees who are Holders of Registrable Securities); provided,
however, that a Registration Statement shall not be counted as one of the two
(2) Demand Registrations hereunder unless it becomes effective and is
maintained effective in accordance with the requirements specified in Section
5(a). The Company shall not be obligated to prepare, file and cause to
become effective pursuant to this Section 2 a Registration Statement unless
the proposed aggregate public offering price of the Registrable Securities to
be included in such Demand Registration is at least $5 million.
(c) DEFERRAL BY COMPANY.
Notwithstanding anything in this Section 2 to the contrary, the
Company shall not be obligated to prepare, file and cause to become effective
pursuant to this Section 2 a Registration Statement if the Company furnishes
the Investors a certificate signed by the President of the Company that in
the good faith judgment of the Board of Directors it would be detrimental in
any material respect to the Company and its shareholders for the Company to
comply with the Demand Registration, and it is therefore essential to defer
the filing of the Registration Statement relating thereto. Any such deferral
shall be for a period of not more than six (6) months after the Company's
receipt of the Investor's written request for registration pursuant to this
Section 2; PROVIDED, HOWEVER, that the Company may not exercise this right
more than once with respect to a Demand Registration and that any requested
registration deferred, and not ultimately effected, by the Company pursuant
to the provisions of this Section 2(c) shall thereafter not be deemed to be a
requested registration for purposes of the limitation to two (2) Demand
Registrations pursuant to Section 2(a) above.
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(d) PARTICIPATION.
The Company shall promptly give written notice to all Holders of
Registrable Securities and to GE upon receipt of a request for a Demand
Registration pursuant to Section 2(a) above. GE may, by written notice to
the Company and the Investors, within thirty (30) business days of the
Company's notice, elect to join in a request for a Demand Registration
pursuant to Section 2(a) above, with respect to a number of shares of GE
Registrable Securities that is less than or equal to the number of shares of
Registrable Securities requested to be registered in such Demand Registration
by the Investors. The GE Registrable Securities being offered by GE in such
Demand Registration shall be treated pari passu with the Registrable
Securities being offered by the Investors for all purposes including
"underwriter's cutbacks" under subsection (e) of this Section and any such
request by GE shall not be treated as either a request for "piggyback" rights
under Section 3 hereof or be treated as the exercise of a demand registration
right by GE under the GE Registration Rights Agreement. In addition, the
Company shall include in such Demand Registration such shares of Registrable
Securities for which it has received written requests to register such shares
within thirty (30) days after such written notice has been given.
(e) UNDERWRITER'S CUTBACK.
If the public offering of Registrable Securities and/or GE
Registrable Securities is to be underwritten and, in the good faith judgment
of the managing underwriter, the inclusion of all the Registrable Securities
and/or GE Registrable Securities requested to be registered hereunder would
interfere with the successful marketing of a smaller number of such shares of
Registrable Securities and/or GE Registrable Securities, the number of shares
of Registrable Securities and/or GE Registrable Securities to be included
shall be reduced to such smaller number with the participation in such
offering to be pro rata among the Holders of Registrable Securities and/or GE
Registrable Securities requesting such registration, based upon the number of
shares of Registrable Securities and/or GE Registrable Securities owned by
such Holders.
Any shares that are thereby excluded from the offering shall be
withheld from the market by the Holders thereof for a period (not to exceed
thirty (30) days prior to the effective date and one hundred twenty (120)
days thereafter) that the managing underwriter reasonably determines is
reasonably necessary in order to successfully market the securities to be
offered in the Underwritten Offering.
The Company and, subject to the requirements of Section 11
hereof, other Holders of securities of the Company may include such
securities in such Registration if, but only if, the managing underwriter
concludes that such inclusion will not interfere with the successful
marketing of all the Registrable Securities requested to be included in such
registration.
(f) MANAGING UNDERWRITER.
The managing underwriter or underwriters of any Underwritten
Offering covered by a Demand Registration shall be selected by Investors
participating in the Underwritten Offering owning a majority of the shares of
Common Stock to be offered therein, subject to the
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approval of the Board of Directors (by a majority of the Directors not
elected by the holders of the Preferred Stock and the Series C Preferred
Stock), which approval shall not be unreasonably withheld.
3. PIGGYBACK REGISTRATIONS
(a) PARTICIPATION.
Each time the Company decides to file a Registration Statement
under the Securities Act (other than registrations on Forms S-4 or S-8 or any
successor form thereto, and other than a Demand Registration) covering the
offer and sale by it or any of its security holders of any of its securities
for money, the Company shall give written notice thereof to all Holders of
Registrable Securities. The Company shall include in such Registration
Statement such shares of Registrable Securities for which it has received
written requests to register such shares within twenty (20) days after such
written notice has been given. If the Registration Statement is to cover an
Underwritten Offering, such Registrable Securities shall be included in the
underwriting on the same terms and conditions as the securities otherwise
being sold through the underwriters.
(b) UNDERWRITER'S CUTBACK.
Subject to the requirements of Section 11 hereof, if in the good
faith judgment of the managing underwriter of such offering the inclusion of
all of the shares of Registrable Securities and any other Common Stock
requested to be registered would interfere with the successful marketing of a
smaller number of such shares, then the number of shares of Registrable
Securities and other Common Stock to be included in the offering shall be
reduced to such smaller number with the participation in such offering to be
in the following order of priority: (1) first, the shares of Common Stock
which the Company proposes to sell for its own account, (2) second, the
shares of Registrable Securities of all Holders of Registrable Securities
requested to be included, PARI PASSU with all shares of GE Registrable
Securities requested by GE to be included and all shares of any Person
granted "piggyback" registration rights by the Company prior to the date
hereof with respect to the Company's securities, as set forth in Schedule A
attached hereto, requested by such Person to be included, and (3) third, any
other shares of Common Stock requested to be included. Any necessary
allocation among the Holders of shares within each of the foregoing groups
shall be pro rata among such Holders requesting such registration based upon
the number of shares of Common Stock and Registrable Securities owned by such
Holders.
All shares so excluded from the Underwritten Offering shall be
withheld from the market by the Holders thereof for a period (not to exceed
thirty (30) days prior to the effective date and one hundred twenty (120)
days thereafter) that the managing underwriter reasonably determines is
reasonably necessary in order to successfully market the securities to be
offered in the Underwritten Offering.
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(c) COMPANY CONTROL.
The Company may decline to file a Registration Statement after
giving notice to Holders pursuant to Section 3(a) above, or withdraw a
Registration Statement after filing and after such notice, but prior to the
effectiveness thereof; provided that the Company shall promptly notify each
Holder of Registrable Securities in writing of any such action and provided
further that the Company shall bear all expenses incurred by each Holder or
otherwise in connection with such withdrawn Registration Statement.
4. HOLD-BACK AGREEMENTS
(a) BY HOLDERS OF REGISTRABLE SECURITIES
Upon the written request of the managing underwriter of any
Underwritten Offering of the Company's securities, a Holder of Registrable
Securities shall not sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Registrable Securities (other
than those included in such registration) without the prior written consent
of such managing underwriter for a period (not to exceed thirty (30) days
before the effective date and one hundred twenty (120) days thereafter) that
such managing underwriter reasonably determines is necessary in order to
effect the Underwritten Offering; provided that each of the officers and
directors of the Company shall have entered into substantially similar
holdback agreements with such managing underwriter covering at least the same
period.
(b) BY THE COMPANY AND OTHERS.
The Company agrees:
(1) not to effect any public or private sale or distribution of
its Equity Securities during the 30-day period prior to, and during the
60-day period after, the effective date of each Underwritten Offering made
pursuant to a Demand Registration or a Piggyback Registration, if so
requested in writing by the managing underwriter (except as part of such
Underwritten Offering, pursuant to registrations on Forms S-4 or S-8 or any
successor forms thereto or private issuances of Equity Securities as
consideration for any acquisition by the Company or a subsidiary of assets
or capital stock of any unaffiliated third party), and
(2) not to issue any Equity Securities other than for sale in a
registered public offering unless each of the Persons to which such
securities are issued has entered a written agreement binding on its
transferees not to effect any public sale or distribution of such
securities (except for employee stock options issued to Persons other than:
directors or officers; or shareholders owning five percent (5%) or more of
the Company's Equity Securities) during such period, including without
limitation a sale pursuant to Rule 144 under the Securities Act (except as
part of such Underwritten Registration, if and to the extent permitted
hereunder).
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5. REGISTRATION PROCEDURES
If and whenever the Company is required to register Registrable
Securities in a Demand Registration,, the Company will use all commercially
reasonable efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended plan of distribution
thereof. With respect to both Demand Registrations and Piggyback
Registrations (except as otherwise specifically provided), the Company will
as expeditiously as practicable:
(a) prepare and file with the SEC as soon as practicable a
Registration Statement with respect to such Registrable Securities and use
all commercially reasonable efforts to cause such Registration Statement to
become effective and remain continuously effective until the date that is the
earlier to occur of (i) the date six months from the date such Registration
Statement was declared effective, and (ii) the date the last of the
Registrable Securities covered by such Registration Statement have been sold,
provided that before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to Holders of
Registrable Securities covered by such Registration Statement and the
underwriters, if any, draft copies of all such documents proposed to be
filed, which documents will be subject to the review of such Investor and
underwriters, and the Company shall not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
Investor or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such supplements
to the Prospectus, as may be requested by any underwriter of Registrable
Securities or as may be required by the rules, regulations or instructions
applicable to the registration form used by the Company or by the Securities
Act or rules and regulations thereunder to keep the Registration Statement
effective until all Registrable Securities covered by such Registration
Statement are sold in accordance with the intended plan of distribution set
forth in such Registration Statement or supplement to the Prospectus;
(c) promptly notify the selling Holders of Registrable
Securities and the managing underwriter, if any, and (if requested by any
such Person) confirm such advice in writing,
(1) when the Prospectus or any supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement
or any post-effective amendment, when the same has become effective,
(2) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose,
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(4) if at any time the representations and warranties of the
Company contemplated by clause (1) of paragraph (o) below cease to be
accurate in all material respects,
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and
(6) of the existence of any fact which results in the
Registration Statement, the Prospectus or any document incorporated
therein by reference containing a Misstatement;
(d) make all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest practicable time;
(e) unless the Company objects in writing on reasonable grounds,
if requested by the managing underwriter or Investors holding more than 50%
of the Registrable Securities then outstanding (on behalf of themselves and
all permitted assignees who are Holders of Registrable Securities), as
promptly as practicable incorporate in a supplement or post-effective
amendment such information as the managing underwriter and the Investors
agree should be included therein relating to the sale of the Registrable
Securities, including, without limitation, information with respect to the
number of shares of Registrable Securities being sold to underwriters, the
purchase price being paid therefor by such underwriters and with respect to
any other terms of the Underwritten Offering of the Registrable Securities to
be sold in such offering; and make all required filings of such supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such supplement or post-effective amendment;
(f) only with respect to Demand Registrations, promptly prior to
the filing of any document which is to be incorporated by reference into the
Registration Statement or the Prospectus (after initial filing of the
Registration Statement) provide copies of such document to counsel to the
Investors (on behalf of themselves and all permitted assignees who are
Holders of Registrable Securities) and to the managing underwriter, if any,
and make the Company's representatives available for discussion of such
document and make such changes in such document prior to the filing thereof
as counsel for the Investors or underwriters may reasonably request;
(g) furnish to each selling Holder of Registrable Securities and
the managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(h) deliver to TC Group, L.L.C. or Carlyle Investment Management,
L.L.C., as appropriate (on behalf of each selling Holder of Registrable
Securities) and the underwriters, if any, without charge, as many copies of
each Prospectus (and each preliminary prospectus) as such Persons may
reasonably request (the Company hereby consenting to the use of each such
Prospectus (or preliminary prospectus) by each of the selling Holders of
Registrable Securities
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and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus (or preliminary
prospectus));
(i) prior to any public offering of Registrable Securities, use
all commercially reasonable efforts to register or qualify or cooperate with
the selling Holders of Registrable Securities, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
of such Registrable Securities for offer and sale under the securities or
blue sky laws of such jurisdictions as such Investor or underwriters may
designate in writing and do anything else necessary or advisable to enable
from a legal perspective the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process in any such jurisdiction where
it is not then so subject;
(j) cooperate with the selling Holders of Registrable Securities
and the managing underwriter, if any, to facilitate the timely preparation
and delivery of certificates not bearing any restrictive legends representing
the Registrable Securities to be sold and cause such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriter may request at least three business days prior to any sale of
Registrable Securities to the underwriters;
(k) use all commercially reasonable efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(l) if the Registration Statement or the Prospectus contains a
Misstatement, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities, the
Prospectus will not contain a Misstatement;
(m) use all commercially reasonable efforts to cause all
Registrable Securities covered by the Registration Statement to be listed on
any national securities exchange on which the Company's securities are listed
or authorized for quotation on Nasdaq, if requested by the Investors (on
behalf of themselves and all permitted assignees who are Holders of
Registrable Securities) or the managing underwriter, if any; provided,
however, that the payment of any required listing or other fee shall always
be deemed to be "commercially reasonable" for purposes of this Section 5(m);
(n) provide a CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement;
(o) enter into such agreements (including an underwriting
agreement) and do anything else reasonably necessary or advisable in order to
expedite or facilitate the disposition
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of such Registrable Securities, and in such connection, whether or not the
registration is an Underwritten Registration:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to holders and
underwriters, respectively, in similar Underwritten Offerings;
(2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriter, if any, and the
Investor (on behalf of itself and all permitted assignees who are
Holders of Registrable Securities)) addressed to each selling Holder and
the underwriter, if any, covering the matters customarily covered in
opinions delivered to holders and underwriters, respectively, in similar
Underwritten Offerings and such other matters as may be reasonably
requested by such Investor or underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling Holders of Registrable Securities and the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by holders and
underwriters, respectively, in connection with similar Underwritten
Offerings;
(4) if an underwriting agreement is entered into, cause the same to
include customary indemnification and contribution provisions and
procedures with respect to such underwriters; and
(5) deliver such documents and certificates as may be reasonably
requested by the Investor (on behalf of itself and all permitted
assignees who are Holders of Registrable Securities) and the managing
underwriter, if any, to evidence compliance with clause (1) above and
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent otherwise reasonably requested by the
Investor (on behalf of itself and all permitted assignees who are Holders of
Registrable Securities);
(p) make available for inspection by representatives of TC Group,
L.L.C. or Carlyle Investment Management, L.L.C., as appropriate (on behalf of
themselves and all permitted assignees who are Holders of Registrable
Securities), any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney or accountant retained by the
sellers or any such underwriter, all financial and other records and
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller or underwriter in connection with the
Registration; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept
confidential by such Persons
12
unless disclosure of such records, information or documents is required by
court or administrative order; and
(q) otherwise use all commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC relating to such
Registration, and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act,
no later than forty-five (45) days after the end of any 12-month period (or
ninety (90) days, if such period is a fiscal year) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters
in an Underwritten Offering, or, if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement,
which statements shall cover said 12-month period.
6. REGISTRATION EXPENSES
(a) DEMAND REGISTRATIONS.
The Company shall bear all Registration Expenses incurred in
connection with any Demand Registrations and of any Registrations which do
not become or are not maintained effective in accordance with the
requirements specified in Section 5(a) other than any Registration terminated
prior to effectiveness at the request of, or primarily as a result of, the
actions of Holders whose Registrable Securities are included in such
registration. Notwithstanding the foregoing, the Underwriters' Commissions
incurred in connection with a Demand Registration that becomes effective
shall be shared by the Holders of the Registrable Securities whose
Registrable Securities are included in such Registration and the Holders of
the GE Registrable Securities whose GE Registrable Securities are included in
such Registration, pro rata, in accordance with the aggregate amount of
Registrable Securities and GE Registrable Securities sold by such Holders.
(b) PIGGYBACK REGISTRATIONS.
The Company shall bear all Registration Expenses incurred in
connection with any Piggyback Registrations, except that each Holder of the
Registrable Securities whose Registrable Securities are included in such
Registration shall pay its pro rata share of the Underwriters' Commissions
incurred in such Registration, in accordance with the amount of Registrable
Securities sold by all such Holders.
(c) COMPANY EXPENSES.
The Company also will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with any listing of the
securities to be registered on a securities exchange, and the fees and
expenses of any Person, including special experts, retained by the Company.
13
7. INDEMNIFICATION
(a) INDEMNIFICATION BY COMPANY.
The Company agrees to indemnify and hold harmless each Indemnified
Holder from and against all Claims arising out of or based upon any
Misstatement or alleged Misstatement, except insofar as such Misstatement or
alleged Misstatement was based upon information furnished in writing to the
Company by such Indemnified Holder expressly for use in the document
containing such Misstatement or alleged Misstatement. This indemnity shall
not be exclusive and shall be in addition to any liability which the Company
may otherwise have.
The foregoing notwithstanding, the Company shall not be liable to
the extent that any such Claim arises out of or is based upon a Misstatement
or alleged Misstatement made in any preliminary prospectus if (i) such
Indemnified Holder failed to send or deliver a copy of the Prospectus with or
prior to the delivery of written confirmation of the sale of Registrable
Securities giving rise to such Claim and (ii) the Prospectus would have
corrected such untrue statement or omission.
In addition, the Company shall not be liable to the extent that any
such Claim arises out of or is based upon a Misstatement or alleged
Misstatement in a Prospectus, (x) if such Misstatement or alleged
Misstatement is corrected in an amendment or supplement to such Prospectus
and (y) having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such Indemnified
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale to the person who
purchased a Registrable Security from such Indemnified Holder and who is
asserting such Claim.
The Company shall also provide customary indemnifications to
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in a distribution covered by a
Registration Statement, their officers and directors and each Person who
controls such Persons (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act).
(b) INDEMNIFICATION PROCEDURES.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Holder in respect of which indemnity may be sought from the Company, such
Indemnified Holder shall promptly notify the Company in writing, and the
Company may assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Holder and the payment of all
expenses.
Such Indemnified Holder shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of such
Indemnified Holder unless (i) the Company has agreed to pay such fees and
expenses, (ii) the Company shall have failed to assume the defense of such
action or proceeding or has failed to employ counsel reasonably satisfactory
to such Indemnified
14
Holder in any such action or proceeding, or (iii) the named parties to any
such action or proceeding (including any impleaded parties) include both such
Indemnified Holder and the Company, and such Indemnified Holder shall have
been advised in writing by counsel that there may be one or more legal
defenses available to such Indemnified Holder that are different from or
additional to those available to the Company.
If such Indemnified Holder notifies the Company in writing that it
elects to employ separate counsel at the expense of the Company as permitted
by the provisions of the preceding paragraph, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Holder. The foregoing notwithstanding, the Company shall not be
liable for the reasonable fee and expenses of more than one separate firm of
attorneys at any time for such Indemnified Holder and any other Indemnified
Holders (which firm shall be designated in writing by such Indemnified
Holders) in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances.
The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff
in any such action or proceeding, the Company agrees to indemnify and hold
harmless such Indemnified Holders from and against any loss or liability by
reason of such settlement or judgment.
(c) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES.
Each Holder of Registrable Securities agrees to indemnity and hold
harmless the Company, its directors and officers and each Person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Holder, but only with respect to
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement, Prospectus or preliminary
prospectus. In no event, however, shall the liability hereunder of any
selling Holder of Registrable Securities be greater than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
In case any action or proceeding shall be brought against the
Company or its directors or officers or any such controlling person, in
respect of which indemnity may be sought against a Holder of Registrable
Securities, such Holder shall have the rights and duties given the Company
and the Company or its directors or officers or such controlling person shall
have the rights and duties given to each Holder by Sections 7(a) and 7(b)
above.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent
as provided above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration
Statement.
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(d) CONTRIBUTION.
If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) or Section 7(c) above
(other than by reason of exceptions provided in those Sections) in respect of
any Claims referred to in such Sections, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
Claims in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Holder on the other in connection with
the statements or omissions which resulted in such Claims as well as any
other relevant equitable considerations. The amount paid or payable by a
party as a result of the Claims referred to above shall be deemed to include,
subject to the limitations set forth in Section 7(b), any legal or other fees
or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The relative fault of the Company on the one hand and of the Holder
on the other shall be determined by reference to, among other things, whether
the Misstatement or alleged Misstatement relates to information supplied by
the Company or by the Holder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such Misstatement
or alleged Misstatement.
The Company and each Holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), an Indemnified
Holder shall not be required to contribute any amount in excess of the amount
by which (i) the total price at which the securities that were sold by such
Indemnified Holder and distributed to the public were offered to the public
exceeds (ii) the amount of any damages which such Indemnified Holder has
otherwise been required to pay by reason of such Misstatement.
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.
8. EXCHANGE ACT REPORTING REQUIREMENTS
From and after the date hereof, the Company shall (whether or not
it shall then be required to do so) timely file such information, documents
and reports as the Commission may require or prescribe under Section 13 or
15(d) (whichever is applicable) of the Exchange Act. In addition, the
Company shall use all commercially reasonable efforts to file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the
Securities Act (or any successor provision) and the use of Form S-3.
16
From and after the date hereof, the Company shall forthwith upon
reasonable request furnish any Holder of Registrable Securities (i) a written
statement by the Company that it has complied with such reporting
requirements, (ii) a copy of the most recent annual or quarterly report of
the Company, and (iii) such other reports and documents filed by the Company
with the Commission as such Holder may reasonably request in availing itself
of an exemption for the sale of Registrable Securities without registration
under the Securities Act pursuant to Rule 144 thereunder.
The purpose of the foregoing requirements are (a) to enable any
such Holder to comply with the current public information requirements
contained in paragraph (c) of Rule 144 under the Securities Act (or any
successor provision) and (b) to qualify the Company for the use of
Registration Statements on Form S-3.
9. REQUIREMENTS FOR PARTICIPATION IN UNDERWRITTEN OFFERINGS
No Person may participate in any Underwritten Offering pursuant to
a Registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements
10. SUSPENSION OF SALES
Upon receipt of written notice from the Company that (i) a
Registration Statement or Prospectus contains a Misstatement, or (ii) in the
reasonable determination of the Company, there exists circumstances not yet
disclosed to the public which would be required to be disclosed in such
Registration Statement and the disclosure of which would be materially
harmful to the Company, each Holder of Registrable Securities shall forthwith
discontinue disposition of Registrable Securities until such Holder has
received copies of the supplemented or amended Prospectus required by Section
5(l) hereof, or until such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed, and, if so directed by the Company,
such Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. The Company shall use all commercially reasonable
efforts to minimize the length of such suspension of sales, provided, that
the Company may require the suspension of sales for a period of ninety (90)
days in the event that the disclosure of any circumstances, in the reasonable
determination of the Company would be harmful in any material respect to the
Company. In no event, however, shall the aggregate period of time that the
Company postpones the filing or declaration of effectiveness of any
Registration Statement pursuant to Section 5, or suspends sales of
Registrable Securities pursuant to Section 10 under any Registration
Statement, taken together with all such other periods with respect to such
Registrations Statement exceed, in the aggregate, ninety (90) days.
17
11. FUTURE REGISTRATION RIGHTS AGREEMENTS
Except for an underwriting agreement between the Company and one or
more professional underwriters of securities, the Company shall not agree to
register any Equity Securities under the Securities Act unless such agreement
specifically provides that:
(a) the Holder of such Equity Securities may not participate in any
Demand Registration without the consent of the Investors unless:
(i) the offering of the Registrable Securities is to be a Firm
Commitment Underwritten Offering and the managing underwriter concludes
that the public offering or sale of such Equity Securities would not
interfere with the successful marketing of all Registrable Securities
requested to be sold and
(ii) the Holders of Registrable Securities shall have the right
to participate, to the extent they may request, in any Registration
Statement initiated under a Demand Registration right exercised by
Investors holding more than 50% of the Registrable Securities then
outstanding, except that if the managing underwriter of a public
offering made pursuant to such a Demand Registration limits the number
of shares of Common Stock to be sold, the participation of the Holders
of the Registrable Securities and the Holders of all other Common Stock
(other than the Equity Securities held by such Holder of Equity
Securities) shall be determined as set forth in Section 3 hereof.
(b) the Holder of such Equity Securities may not participate in
any Piggyback Registration if the sale of Registrable Securities is to be
underwritten unless, if the managing underwriter limits the total number of
shares to be sold, the Holders of such Equity Securities and the Holders of
Registrable Securities are entitled to participate in such underwritten
distribution based on the order of priority set forth in Section 3 hereof, and
(c) all Equity Securities excluded from any Registration as a
result of the foregoing limitations may not be publicly offered or sold for a
period (not to exceed at least thirty (30) days prior to the effective date
and sixty (60) days thereafter) that the managing underwriter reasonably
determines is necessary in order to effect the underwritten public offering
of Registrable Securities registered pursuant to this Agreement.
12. TRANSFER OF REGISTRATION RIGHTS
The rights of Holders of Registrable Securities hereunder may be
transferred as permitted in the Purchase Agreement. The Company shall be
given written notice by the Holder at the time of any such transfer permitted
by the Purchase Agreement stating the name and address of the transferee,
including a writing by such transferee to the effect that such transferee
agrees to by bound by the terms hereof and identifying the securities with
respect to which the rights hereunder are being transferred.
18
13. MISCELLANEOUS
(a) REMEDIES.
Each Holder of Registrable Securities, in addition to being
entitled to exercise all rights provided herein, in the Purchase Agreement
and granted by law, including recovery of damages, shall be entitled to
specific performance of its rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS.
The Company shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
Other than as disclosed on Schedule A attached hereto, the Company
has not previously entered into any agreement with respect to its securities
granting any "piggy back" registration rights to any Person. The Company
represents and warrants to the Investors that, except as set forth in this
Agreement and the GE Registration Rights Agreement, as of the date hereof,
there are no outstanding "demand" registration rights with respect to the
Company's securities. The rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities under any
such agreements.
(c) AMENDMENTS AND WAIVERS.
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of General Electric Company, a New
York corporation (but such consent of General Electric Company shall only be
necessary if, at the time such consent is sought, GE owns GE Registrable
Securities) and of Investors holding more than 50% of the Registrable
Securities then outstanding (on behalf of themselves and all permitted
assignees who are Holders of Registrable Securities). The foregoing
notwithstanding, a waiver or consent to departure from the provisions hereof
that relates exclusively to the rights of Holders of shares of Registrable
Securities whose shares are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders
of shares of Registrable Securities may be given by the Holders of a majority
of the shares of Registrable Securities being sold.
(d) NOTICES.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, facsimile, or air courier guaranteeing overnight delivery:
19
(i) if to a Holder of Registrable Securities who is an Investor
or a Carlyle Affiliate ( as such term is defined in the Purchase
Agreement), at the address of the Purchaser (as such term is defined in the
Purchase Agreement) set forth in Section 9.4 of the Purchase Agreement,
with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxxxx Xxxxxx, X.X.,
Xxxxx 000, Xxxxxxxxxx, X.X. 00000, Facsimile: (000) 000-0000, Attention:
Xxxx X. Xxxxx, Esq.;
(ii) if to a Holder of Registrable Securities who is not an
Investor or a Carlyle Affiliate (as such term is defined in the Purchase
Agreement), at the most current address given by the Holder to the Company
in accordance with the provisions hereof, which address initially is the
address of the Purchaser (as such term is defined in the Purchase
Agreement) set forth in the Purchase Agreement, with a copy to Xxxxxx, Xxxx
& Xxxxxxxx LLP, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.
00000, Facsimile: (000) 000-0000, Attention: Xxxx X. Xxxxx, Esq.; and
(iii) if to the Company, initially at its address set forth
in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions hereof, with a copy to
XxXxxxxxx, Will & Xxxxx, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, XX 00000,
Facsimile: 310.277.4730, Attn: Xxxx X. Xxxxxxxxx, Esq., and Arent, Fox,
Kintner, Xxxxxxx & Xxxx, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, Facsimile: 202.857.6395, Attn: Xxxxxx X. XxXxxxxx,
Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery. The Company shall promptly provide a list of the most current
addresses of the Holders of Registrable Securities given to it in accordance
with the provisions hereof to any such Holder for the purpose of enabling such
Holder to communicate with other Holders in connection with this Agreement.
(e) SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties.
(f) COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) HEADINGS.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
20
(h) GOVERNING LAW.
This Agreement shall be construed, interpreted and the rights of the
parties determined in accordance with the internal laws of the State of New
York, without regard to the conflict of law principles thereof; except with
respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
(i) SEVERABILITY.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) FORMS.
All references in this Agreement to particular forms of Registration
Statements are intended to include all successor forms which are intended to
replace, or to apply to similar transactions as, the forms herein referenced.
(k) ENTIRE AGREEMENT.
This Agreement and the Purchase Agreement are intended by the parties
as the final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein or therein with respect to the registration rights granted by the Company
with respect to the securities sold pursuant to the Purchase Agreement. This
Agreement and the Purchase Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
(l) GE REGISTRATION RIGHTS AGREEMENT.
If Holders elect to join in a request for Demand Registration pursuant
to Section 2(d) of the GE Registration Rights Agreement, then such registration
of Holders' shares shall, with respect to the terms and conditions of this
Agreement, be treated as if such registration were a Demand Registration
pursuant to Section 2 of this Agreement; PROVIDED, HOWEVER, that such
registration of Holders' shares pursuant to Section 2(d) of the GE Registration
Rights Agreement shall not: (i) count as one of the two Demand Registrations
available to Holders pursuant to this Agreement, or (ii) be subject in any way
whatsoever to the $5 million threshold of Section 2(b) of this Agreement.
[signature page follows]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
INSIGHT HEALTH SERVICES CORP.,
a Delaware corporation
By: ___________________________
Name: __________________________
Title: _________________________
CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
CARLYLE PARTNERS III, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
CARLYLE INTERNATIONAL PARTNERS II, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
22
CARLYLE INTERNATIONAL PARTNERS III, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
C/S INTERNATIONAL PARTNERS,
a Cayman Islands general partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
STATE BOARD OF ADMINISTRATION OF
FLORIDA,
a separate account maintained pursuant to an
Investment Management Agreement dated as of
September 6, 1996 between the State Board of
Administration of Florida, Carlyle Investment
Group, L.P. and Carlyle Investment
Management, L.L.C.
By: Carlyle Investment Management, L.L.C.,
as Investment Manager
By: ___________________________
Name: __________________________
Title: _________________________
23
CARLYLE INVESTMENT GROUP, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
CARLYLE-INSIGHT INTERNATIONAL
PARTNERS, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
CARLYLE-INSIGHT PARTNERS, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., as the General Partner
By: ___________________________
Name: __________________________
Title: Managing Director
24
