Exhibit 4.2
Execution Copy
AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this "Agreement"), is
made as of the 12th day of July, 2000, by and among COMPDENT CORPORATION, a
Delaware corporation (the "Company") certain original stockholders of the
Company (collectively the "Original Stockholders") listed on Schedule I hereto,
and certain new stockholders of the Company (collectively the "New
Stockholders," together with the Original Stockholders, the "Stockholders," each
a "Stockholder") listed on Schedule II hereto.
WHEREAS, the New Stockholders are on the date hereof acquiring, an
aggregate of 40,170.85 shares of the Series B Convertible Preferred Stock, $0.01
par value per share, of the Company (the "Series B Preferred Stock") and
3,503,170 shares of the common stock, $0.01 par value per share, of the Company
(the "Common Stock") from the Company pursuant to the terms of a Stock Purchase
Agreement dated the date hereof by and among the Company, the New Stockholders
and certain of the Original Stockholders (the "Stock Purchase Agreement").
WHEREAS, in connection with the Stock Purchase, the Original Stockholders
and the New Stockholders desire to amend and restate in its entirety that
certain Registration Rights Agreement, dated as of June 17, 1999 by and among
the Company, as successor to TAGTCR Acquisition, Inc., a Delaware corporation
("TAGTCR"), and the Original Stockholders in order to agree upon the terms upon
which their investment in the capital stock of the Company will be held,
transferred and voted.
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes, among others, of establishing the manner and terms
by which the Stockholder Shares may be registered.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time, upon the affirmative vote
of the Required Investor Groups, the holders of at least a majority of the Group
A Registrable Securities, the holders of at least a majority of the Group B
Registrable Securities and the holders of at least a majority of the Group C
Registrable Securities, acting together, may jointly request registration under
the Securities Act of all or part of their Registrable Securities on Form S-1 or
any similar long-form registration ("Long-Form Registrations") or, if available,
on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"). In addition, after such time as the Company has completed its
initial public offering of its Common Stock under the Securities Act, the
holders of at least a majority of the Group A Registrable Securities or the
holders of at least a majority of the Group B Registrable Securities or the
holders of at least a majority of the Group C Registrable Securities or the
holders of at least a majority of the Group D Registrable Securities or
the holders of at least a majority of the Group E Registrable Securities may
jointly or individually request registration under the Securities Act of all or
part of their Registrable Securities in a Long Form Registration or, if
available, in a Short Form Registration. All registrations requested pursuant to
this Section 1(a) are referred to herein as "Demand Registrations." Each request
for a Demand Registration shall specify the approximate number of Group A
Registrable Securities, Group B Registrable Securities, Group C Registrable
Securities, Group D Registrable Securities and Group E Registrable Securities
(as applicable) 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, subject to Section 1(d) below, will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Long-Form Registrations. Subject to Section 1(a) above, the
holders of a majority of the Group A Registrable Securities, the holders of a
majority of the Group B Registrable Securities and the holders of a majority of
the Group C Registrable Securities shall each be entitled to request unlimited
Long-Form Registrations in which the Company will pay all Registration Expenses
(as defined below in Section 5). Subject to Section 1(a) above, the holders of a
majority of the Group D Registrable Securities and the holders of a majority or
the Group E Registrable Securities shall each be entitled to request up to two
Long-Form Registrations. The Company will pay all the Registration Expenses in
connection with such Long-Form Registrations. All Long-Form Registrations shall
be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), the holders of a majority of
the Group A Registrable Securities, the holders of a majority of the Group B
Registrable Securities, the holders of a majority of the Group C Registrable
Securities, the holders of a majority of the Group D Registrable Securities and
the holders of a majority of the Group E Registrable Securities shall each be
entitled to request an unlimited number of Short-Form Registrations in which the
Company will pay all Registration Expenses. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended, the Company shall use its
best efforts to make Short-Form Registrations on Form S-3 available for the sale
of Registrable Securities. All Short-Form Registrations shall be underwritten
registrations, unless otherwise agreed to by the Company.
(d) Priority on Demand Registrations. The Company will not include 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 therein without adversely
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affecting the marketability of the offering, the Company will include in such
registration (i) first, the number of Registrable Securities requested to be
included in such registration which in the opinion of such underwriters can be
sold without adverse effect, pro rata among the respective holders thereof on
the basis of the number of Registrable Securities owned by each such holder and
(ii) second, other securities requested to be included in such Demand
Registration, pro rata among the holders of such securities on the basis of the
number of such securities owned by each such holder.
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. The Company may postpone for
up to six months (from the date of the request) the filing or the effectiveness
of a registration statement for a Demand Registration if the Company's board of
directors reasonably and in good faith believes 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 engage in any acquisition
of assets (other than in the ordinary course of business) or any stock purchase,
merger, consolidation, tender offer or similar transaction; provided, however,
that in such event, the holders of Registrable Securities initially requesting
such Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall be treated as if it had
never been made in the first instance, and the Company will pay all Registration
Expenses in connection with such registration. The Company may delay a Demand
Registration hereunder only once in any 12-month period.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld or
delayed.
(g) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Persons the right to request that the Company
register any equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for any such securities, without the prior
written consent of the Required Investor Groups; provided, however that the
Company will not grant any rights to register any equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
any such securities, which are senior to the rights held by the TCW/Crescent
Investors without the prior written consent of the TCW/Crescent Investors.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its equity securities under the Securities Act (other than pursuant to a
Demand Registration (which is addressed in Section 1 above rather than this
Section 2) or a registration on Form S-4 or S-8 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"), whether or not for sale for
its own account, the Company will give prompt written notice to all holders of
Registrable Securities of its intention to
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effect such a registration and, subject to Sections 2(c) and 2(d) below, will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice; provided that with respect to any
Piggyback Registration, the Required Investor Groups, shall have the right to
exclude all (but not less than all) of the Registrable Securities from such
Piggyback Registration.
(b) Piggyback Expenses. In all Piggyback Registrations, the
Registration Expenses of the holders of Registrable Securities will be paid by
the Company.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders thereof on the basis of the number of Registrable Securities
owned by each such holder, and (iii) third, other securities requested to be
included in such registration pro rata among the holders of such securities on
the basis of the number of such other securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (it being understood that secondary registrations on behalf of
holders of Registrable Securities are addressed in Section 1 above rather than
in this Section 2(d)), and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company will
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
Registrable Securities owned by each such requesting holder, and (iii) third,
other securities requested to be included in such registration pro rata among
the holders of such other securities on the basis of the number of such
securities owned by each such holder.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of the investment banker(s) and manager(s)
for the offering must be approved by the holders of a majority of the
Registrable Securities included in such Piggyback Registration, which approval
shall not be unreasonably withheld.
(f) Withdrawal by Company. If, at any time after giving notice of its
intention to register any of its securities as set forth in Section 2(a) and
before the effective date of such registration statement filed in connection
with such registration, the Company shall determine, for
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any reason, not to register such securities, the Company may, at its sole
discretion, give written notice of such determination to each holder of
Registrable Securities and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection therewith
as provided herein).
(g) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company will 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-4 or 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 six months has elapsed from the effective date of
such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities, options or rights convertible into
or exchangeable or exercisable for such securities, during the seven days prior
to and the 180-day period beginning on the effective date of any underwritten
public offering of the Company's equity securities (including Demand and
Piggyback Registrations) (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten public offering of the Company's equity securities (including
Demand and Piggyback Registrations) (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree and (ii) to cause each holder of its Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, purchased or
otherwise acquired 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 any such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof and pursuant thereto the Company will as expeditiously as
possible:
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(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 thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will 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 will be subject to review
of such counsel);
(b) 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 either (i) not less than six months (subject
to extension pursuant to Section 7(b)) 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, or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement during such period have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement (but in any event not before
the expiration of any longer period required under the Securities Act), and to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until such time as all
of such securities have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection or (ii) subject itself to taxation in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery 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 the light of the
circumstances under
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which they were made, and, at the request of any such seller, the Company will
prepare and furnish to 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 will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading in the 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 a securities exchange or the
National Association of Securities Dealers (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 "national market system security" of The Nasdaq
Stock Market within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure The Nasdaq Stock Market's authorization
for such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split,
combination of shares, recapitalization or reorganization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate and business documents and properties of the Company, and cause the
Company's officers, directors, employees, agents, representatives, and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 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,
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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 securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters, which letter shall be addressed to the
underwriters; and use its reasonable best efforts to cause such cold comfort
letter to also be addressed to the holders of such Registrable Securities; and
(o) obtain an opinion from the Company's outside counsel in customary
form and covering such matters of the type customarily covered by such opinions,
which opinion shall be addressed to the underwriters and the holders of such
Registrable Securities.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if such holder, in
its sole and exclusive judgment, is or might be deemed to be an underwriter or a
controlling person of the Company, such holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such holder and presented to the Company in writing, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby, and that such holding does not imply that such
holder shall assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to such holder by name or otherwise is
not required by the Securities Act or any similar federal or state statute then
in force, the deletion of the reference to such holder; provided that, with
respect to this clause (ii), such holder shall furnish to the Company an opinion
of counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish the Company
such information regarding such seller and the distribution of such securities
as the Company may from time to time reasonably request in writing.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), will be borne as provided in this
Agreement, except that the Company 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 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,
if none are so listed, on a securities exchange or the NASD automated quotation
system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of each seller's securities to be so
registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the full
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 any and all losses, claims,
damages, liabilities, joint or several, together with reasonable costs and
expenses (including reasonable attorney's fees), to which such indemnified party
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of, are based upon, are
caused by, or result from (i) any untrue or alleged untrue statement of material
fact contained (A) in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or (B) in any
application or other document or communication (in this Section 6 collectively
called an "application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such registration
statement 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
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them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of,
is based upon, is caused by, or results from 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 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 any underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the full extent permitted by law, will indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective directors, officers, agents and employees and each other Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, joint or several, together with reasonable
costs and expenses (including reasonable attorney's fees), to which such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of,
are based upon, are caused by, or result from (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or 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; provided, however, that
the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such
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defense is assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnifying party shall not, except with the approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a release from all liability
in respect to such claim or litigation without any payment or consideration
provided by such indemnified party.
(e) If the indemnification provided for in this Section 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any losses, claims, damages or liabilities
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, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect 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 hand from the sale of Registrable Securities pursuant to
the registered offering of securities as to which indemnity is sought or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other hand in connection with
the registration statement on the other in connection with the statement or
omissions which resulted in such losses, claims, damages or liabilities, 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 hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) to the Company bear to the total net
proceeds from the offering (before deducting expenses) to the sellers of
Registrable Securities and any other sellers participating in the registration
statement. The relative fault of the Company on the one hand and of the sellers
of Registrable Securities and any other sellers participating in the
registration statement on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged omission to state a material
fact relates to information supplied by the Company or by the sellers of
Registrable Securities or other sellers participating in the registration
statement and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) The Company and the sellers of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this Section 6
were determined by pro rata allocation
11
(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 the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no seller of Registrable
Securities shall be required to contribute any amount in excess of the net
proceeds received by such seller from the sale of Registrable Securities covered
by the registration statement filed pursuant hereto. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(g) The indemnification and contribution by any such party 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 will
survive the transfer of securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(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 forthwith
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 such 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 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).
12
8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will file all reports required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
9. Definitions.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise, and if such Person is a partnership,
"Affiliate" shall also mean each general partner and limited partner of such
Person. Without limiting the generality of the foregoing, (i) each investment
fund managed by Golder, Thoma, Cressey, Rauner, Inc. or any successor thereto
shall be deemed to be an Affiliate of each of the initial holders of the GTCR
Shares, (ii) each investment fund managed by TA Associates, Inc. or any
successor thereto shall be deemed to be an Affiliate of each of the initial
holders of the TA Shares and (iii) each investment fund managed by Xxxxxxxx
Management IV. L.P. or any successor thereto shall be deemed to be an Affiliate
of each of the initial holders of the Fleet Shares.
"Common Stock" means the Company's Common Stock, par value $.01 per
share, and any capital stock of any class of the Company hereafter authorized
which is not limited to a fixed sum or percentage of par or stated value in
respect to the rights of the holders thereof to participate in dividends or in
the distribution of assets upon any liquidation, dissolution or winding up of
the Company.
"Convertible Preferred Stock" means the Company's Series A Convertible
Preferred Stock together with the Company's Series B Convertible Preferred
Stock.
"Distribution Event" means with respect to the GTCR Investors on the
one hand or the TA Investors on the other hand or the Fleet Investors on the
other hand, a ratable distribution by such Person to their limited partners,
shareholders and members (as applicable) of at least 80% of the Registrable
Securities held by them on the date hereof.
"Fleet Investors" means Fleet Private Equity Co., Inc., Fleet Equity
Partners VI, L.P., Xxxxxxxx Partners IV, L.P., Xxxxxxx Plaza Partners II, LLC
and their Affiliates.
"Fleet Shares" means any capital stock, warrants, options or other
right which constitute Stockholder Shares, as defined in the Amended and
Restated Stockholders Agreement,
13
hereunder and which were initially issued to any Fleet Investor. References in
this Agreement to "a majority of the Fleet Investors" shall be deemed to be
references to a majority of the Fleet Shares that are Common Stockholder Shares,
as defined in the Amended and Restated Stockholders Agreement, calculated on a
fully-diluted basis.
"GICAbbott Investors" means Wolverine Investment Pte Ltd and Xxxxxx
Capital 1330 Investors I, L.P.
"Group A Investors" means (i) at any time prior to the occurrence of a
Distribution Event for the GTCR Investors, the GTCR Investors; (ii) at any time
after a Distribution Event for the GTCR Investors and before the occurrence of a
Distribution Event for the TA Investors and the Fleet Investors, the TA
Investors and the Fleet Investors; (iii) at any time after a Distribution Event
for both the GTCR Investors and the Fleet Investors, but prior to a Distribution
Event for the TA Investors, the TA Investors; (iv) at any time after a
Distribution Event for both the GTCR Investors and the TA Investors, but prior
to a Distribution Event for the Fleet Investors, the Fleet Investors; and (v) at
any time after the occurrence of a Distribution Event for all of the GTCR
Investors, the TA Investors and the Fleet Investors, the GICAbbott Investors.
"Group A Registrable Securities" means (i) any Common Stock originally
issued to any Group A Investors, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Group A Investor; and
(iii) any Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Group A Registrable Securities,
such securities shall cease to be Group A Registrable Securities when they 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) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Group A Registrable
Securities, and the Group A Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Group A Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Group A Registrable Securities hereunder.
"Group B Investors" means (i) at any time prior to the occurrence of a
Distribution Event for the TA Investors, the TA Investors; (ii) at any time
after a Distribution Event for the TA Investors and before the occurrence of a
Distribution Event for the GTCR Investors and the Fleet Investors, the GTCR
Investors and the Fleet Investors; (iii) at any time after a Distribution Event
for both the TA Investors and the Fleet Investors, but prior to a Distribution
Event for the GTCR Investors, the GTCR Investors; (iv) at any time after the
Distribution Event for both the GTCR Investors and the TA Investors, but prior
to a Distribution Event for the Fleet Investors, the Fleet
14
Investors; and (v) at any time after the occurrence of a Distribution Event for
all of the GTCR Investors, the TA Investors and the Fleet Investors, the
GICAbbott Investors.
"Group B Registrable Securities" means (i) any Common Stock originally
issued to any Group B Investors, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Group B Investors; and
(iii) any Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Group B Registrable Securities,
such securities shall cease to be Group B Registrable Securities when they 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) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Group B Registrable
Securities, and the Group B Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Group B Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Group B Registrable Securities hereunder.
"Group C Investors" means (i) at any time prior to the occurrence of a
Distribution Event for the Fleet Investors, the Fleet Investors; (ii) at any
time after a Distribution Event for the Fleet Investors and before the
occurrence of a Distribution Event for the GTCR Investors and the TA Investors,
the GTCR Investors and the TA Investors; (iii) at any time after a Distribution
Event for both the Fleet Investors and the TA Investors, but prior to a
Distribution Event for the GTCR Investors, the GTCR Investors; (iv) at any time
after the Distribution Event for both the Fleet Investors and the GTCR
Investors, but prior to a Distribution Event for the TA Investors, the TA
Investors; and (v) at any time after the occurrence of a Distribution Event for
all of the Fleet Investors and the GTCR Investors and the Fleet Investors, the
GICAbbott Investors.
"Group C Registrable Securities" means (i) any Common Stock originally
issued to any Group C Investors, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Group C Investor; and
(iii) any Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Group C Registrable Securities,
such securities shall cease to be Group C Registrable Securities when they 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) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Group C Registrable
Securities, and the Group C Registrable Securities shall be deemed to be in
15
existence, whenever such Person has the right to acquire directly or indirectly
such Group C Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Group C Registrable Securities hereunder.
"Group D Investors" means the TCW/Crescent Investors.
"Group D Registrable Securities" means (i) any Common Stock originally
issued to any Group D Investors, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Group D Investor or
exercise of the Warrant; and (iii) any Common Stock issued or issuable directly
or indirectly with respect to the securities referred to in clauses (i) and (ii)
above upon exercise, conversion or exchange or by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Group D Registrable
Securities, such securities shall cease to be Group D Registrable Securities
when they 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) or repurchased by the Company or any Subsidiary. For
purposes of this Agreement, a Person shall be deemed to be a holder of Group D
Registrable Securities, and the Group D Registrable Securities shall be deemed
to be in existence, whenever such Person has the right to acquire directly or
indirectly such Group D Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Group A Registrable Securities hereunder.
"Group E Investors" means the Bank of America, N. A., Banc of America
Securities LLC and their Affiliates.
"Group E Registrable Securities" means (i) any Common Stock originally
issued to any Group E Investors, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Group E Investor; and
(iii) any Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Group E Registrable Securities,
such securities shall cease to be Group E Registrable Securities when they 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) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Group E Registrable
Securities, and the Group E Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Group E Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or
16
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of Group E
Registrable Securities hereunder.
"GTCR Investors" means Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P.,
GTCR Associates V, and their Affiliates.
"GTCR Shares" means any capital stock, warrants, options or other
rights which constitute Stockholder Shares, as defined in the Amended and
Restated Stockholders Agreement, hereunder and which were initially issued to
any GTCR Investor. References in this Agreement to "a majority of the GTCR
Investors" shall be deemed to be references to a majority of the GTCR Shares
that are Common Stockholder Shares, as defined in the Amended and Restated
Stockholders Agreement, calculated on a fully-diluted basis.
"Other Investor" means any Stockholder other than the Group A
Investors, the Group B Investors, the Group C Investors, the Group D Investors,
or the Group E Investors.
"Other Registrable Securities" means (i) any Common Stock originally
issued to any Other Investor, (ii) any Common Stock issued upon conversion of
any Convertible Preferred Stock originally issued to any Other Investor; and
(iii) any Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) and (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Other Registrable Securities, such
securities shall cease to be Other Registrable Securities when they 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) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Other Registrable
Securities, and the Other Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Other Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Other Registrable Securities hereunder.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means, collectively, the Group A Registrable
Securities, the Group B Registrable Securities, Group C Registrable Securities,
Group D Registrable Securities, Group E Registrable Securities and the Other
Registrable Securities.
17
"Required Investor Groups" means two of the following three groups:
the holders of at least a majority of the Group A Registrable Securities, the
holders of at least a majority of the Group B Registrable Securities and the
holders of at least a majority of the Group C Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Series A Convertible Preferred Stock" means the Company's Series A
Convertible Preferred Stock, par value $.01 per share.
"Series B Convertible Preferred Stock" means the Company's Series B
Convertible Preferred Stock, par value $.01 per share.
"Subsidiary" or "Subsidiaries" means, with respect to any Person, any
corporation, limited liability company, partnership, association, or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof,
or (ii) if a limited liability company, partnership, association, or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or entity or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a
majority ownership interest in a limited liability company, partnership,
association, or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association, or
other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association, or other business entity.
"TA Investors" means TA/Advent VIII L.P., Advent Atlantic and Pacific
III L.P., TA Executives Fund LLC, TA Investors LLC, and their Affiliates
"TA Shares" means any capital stock, warrants, options or other rights
which constitute Stockholder Shares, as defined in the Amended and Restated
Stockholders Agreement, hereunder and which were initially issued to any TA
Investor. References in this Agreement to "a majority of the TA Investors" shall
be deemed to be references to a majority of the TA Shares that
18
are Common Stockholder Shares, as defined in the Amended and Restated
Stockholders Agreement, calculated on a fully-diluted basis.
"TCW/Crescent Investors" means, collectively, TCW/Crescent Mezzanine
Partners II, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust
II, a Delaware business trust, TCW Leveraged Income Trust, L.P., a Delaware
limited partnership, TCW Leveraged Income Trust II, L.P., a Delaware limited
partnership, and TCW Leveraged Income Trust IV, L.P., a Delaware limited
partnership, any of their Affiliates or any holder of Stockholder Shares for
whom Trust Company of the West or any Affiliate of Trust Company of the West
acts as an account manager.
"Warrant" means, collectively, the warrants of the Company issued to
the TCW/Crescent Investors pursuant to that certain Securities Purchase
Agreement dated as of the date hereof by and among the Company, American Prepaid
Professional Services, Inc., and the Subsidiary Guarators named therein and the
Purchasers listed on the signature pages thereto, and that certain Warrant
Agreement dated as of the date hereof by and between the Company and the
Purchasers listed on the signature pages thereto.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to either Company's 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 will not
will take any action, or permit any change to occur, with respect to the
Company's securities which would materially and 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, without limitation, effecting a stock split, combination of shares,
or other recapitalization).
(c) Additional Stockholders. In connection with the issuance of any
additional equity securities of the Company to any Person, the Company may
permit such Person to become a party to this Agreement and succeed to all of the
rights and obligations of a "Stockholder" under this Agreement by obtaining the
consent of the holders of a majority of the Registrable Securities and an
executed counterpart signature page to this Agreement, and, upon such execution,
such Person shall for all purposes be a "Stockholder" party to this Agreement.
(d) Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment, or waiver of any provision of this Agreement will 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; provided,
however, that in the event that such amendment or waiver (i) is with respect to
19
any provision of this Agreement which contains rights which are unique to a
single holder or group of holders of Registrable Securities or (ii) would
materially and adversely affect a single holder or group of holders of
Registrable Securities in a manner substantially different than any other
holders of Registrable Securities, then such amendment or waiver will require
the consent of such holder of Registrable Securities or a majority of the
Registrable Securities held by such group of holders materially and adversely
affected. Notwithstanding the foregoing, if an amendment or modification of this
Agreement serves merely to add a party hereto, then such amendment or
modification will be effective against the Company and the holders of
Registrable Securities if such amendment or modification is approved in writing
by the Company, the holders of at least a majority of the Registrable
Securities, and such new party hereto. Notwithstanding anything to the contrary
set forth in this Section 10(d), no modification, amendment or waiver of any
provision of this Agreement which would materially and adversely affect the
Fleet Investors in a different manner than the TA Investors or the GTCR
Investors shall be effective unless such modification, amendment or waiver shall
have been approved in writing by the Fleet Investors. The failure of any party
to enforce any of the provisions of this Agreement will in no way be construed
as a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(e) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(f) Entire Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts 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.
(g) Successors and Assigns. Except as expressly otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and the Stockholders and any
subsequent holders of Registrable Securities and the respective successors and
assigns of each of them.
(h) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(i) Remedies. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically to recover damages by reason of any
breach of any provision of this
20
Agreement and to exercise all other rights existing in their favor. 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 hereto may
in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
(j) Notices. Any notice provided for in this Agreement shall be in
writing and shall be either (i) personally delivered, (ii) sent by registered or
certified mail (return receipt requested and postage prepaid), (iii) sent by
reputable overnight courier service (charges prepaid), or (iv) sent by
facsimile, in each case, to the Company at the address set forth below and to
any other recipient at the address indicated on the Notices Schedule attached
hereto, or if such recipient is not listed on the Notices Schedule attached
hereto, at the address indicated by the Company's records. Any Person may change
its address for purposes of this Agreement by providing prior notice of such
change to the other parties hereto in accordance with this Section. Notices will
be deemed to have been given hereunder (i) when delivered personally, (ii) three
days after being mailed, (iii) one day after deposit with a reputable overnight
courier service, or (iv) in the cases of notices sent by facsimile, when receipt
is acknowledged. The Company's address is:
CompDent Corporation
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with copies to:
Fleet Equity Partners
00 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
21
TCW/Crescent Investors
x/x XXX/Xxxxxxxx Xxxxxxxxx, X.X.X.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Bank of America, N.A.
Leveraged Finance
NC1-007-07-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx or Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
McGuire, Woods, Battle & Xxxxxx LPP
Bank of America Corporate Center, 29th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxx Xxxxxx
Facsimile: (000) 000-0000
Gardere & Xxxxx, L.L.P.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
TA Associates, Inc.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxx, P.C.
Facsimile: (000) 000-0000
22
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Facsimile: (000) 000-0000
(k) Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to any choice of law or other conflict of law provision or rule (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
(l) No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
(m) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief executive office is located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
(i) Construction. Whenever the context requires, each term stated in
either the singular or the plural shall include the singular and the plural, and
pronouns stated in either the masculine, the feminine or the neuter gender shall
include the masculine, feminine and neuter. All references to Sections and
Paragraphs refer to sections and paragraphs of this Agreement. The use of the
word "including" in this Agreement shall be by way of example rather than
limitation.
(n) Board Approval. Whenever this Agreement calls for or refers to the
consent or approval of any matter by any holder of Registrable Securities, such
consent or approval shall be deemed given by such holder if each of such
holder's designees on the Company's board of directors (the "Board") has, in his
capacity as a director of the Company, given his consent or approval with
respect to such matter at a duly convened meeting of the Board or pursuant to an
effective unanimous written consent of the Board, unless, with respect to any
given matter, such holder notifies the Company in writing that the consent or
approval at the Board level by such holder's designees on the Board does not
constitute the consent or approval by such holder itself.
(o) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
23
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement on the day and year first above written.
COMPDENT CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Its Chairman & Chief Executive Officer
GOLDER, THOMA, XXXXXXX, XXXXXX FUND V,
L.P.
By: GTCR V, L.P., its General Partner
By: Golder, Thoma, Cressey, Rauner,
Inc., its General Partner
By: /s/ Xxxxxx Xxxxx
------------------------------------
Its: Principal
GTCR ASSOCIATES V
By: Golder, Thoma, Cressey, Rauner,
Inc., its Managing General Partner
By: /s/ Xxxxxx Xxxxx
------------------------------------
Its: Principal
NMS CAPITAL, L.P.
By: NMS Capital Management LLC, its
General Partner
By [illegible]
-------------------------------------
Its
------------------------------------
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
TA/ADVENT VIII L.P.
By: TA Associates, Inc., its General
Partner
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Its Managing Director
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates, Inc., its General
Partner
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Its Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Its Managing Director
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Its Managing Director
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
FLEET PRIVATE EQUITY CO., INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
FLEET EQUITY PARTNERS VII, L.P.
By: Fleet Growth Resources, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
XXXXXXX PLAZA PARTNERS II, LLC
By: Xxxxxxxx Management IV, L.P.,
Manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Principal
XXXXXXXX PARTNERS IV, L.P.
By: Xxxxxxxx Management IV, L.P.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Principal
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx XxxXxxxxxx
------------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxx Xxxxxxx XxxXxxxxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------- ---------------------------------------
Wiley X. Xxxxxx Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------- ---------------------------------------
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------------------- ---------------------------------------
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------- ---------------------------------------
Xxxxx X. Xxxxx Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxx
------------------------------------- ---------------------------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxx
------------------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxx
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
THE XXXXXXXX FUND
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Its Xxxxxxxx Xxxxxxx, Chairman
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxxx Xxxxxxxxx
XXXXXX CAPITAL 1330 INVESTORS I, L.P.
By [illegible]
-------------------------------------
Its
------------------------------------
WOLVERINE INVESTMENT PTE. LTD.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Its Director
GE FINANCIAL ASSURANCE HOLDINGS, INC.
By [illegible]
-------------------------------------
Its
------------------------------------
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.,
as general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Limited,
as General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P.
By: TCW Advisors (Bermuda), Limited,
as General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company,
as its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
By: TCW (XXXX XX), L.L.C.
as General Partner
By: TCW Asset Management Company
as its Managing Member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT]
0000 XXXXXXXX XXXXX FUND
By: [illegible]
------------------------------------
Its Manager
GPH CB PARTNERS
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Partner
LEASE PLAN NORTH AMERICA, INC.
By: [illegible]
------------------------------------
Senior Vice President
SCHEDULE I
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P.
GTR Associates V
TA/Advent VIII L.P.
Advent Atlantic and Pacific III L.P.
TA Executives Fund LLC
TA Investors LLC
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
NMS Capital, L.P.
The Xxxxxxxx Fund
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx Capital 1330 Investors I, L.P.
GE Financial Assurance Holdings, Inc.
Xxxxxxx X. Xxxxxx
Wiley X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx XxxXxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxx
SCHEDULE II
Fleet Private Equity Co., Inc.
Fleet Equity Partners VII, X.X.
Xxxxxxx Plaza Partners II, LLC
Xxxxxxxx Partners IV, L.P.
0000 Xxxxxxxx Xxxxx Fund
GPH CB Partners
Lease Plan North America, Inc.
Wolverine Investment Pte. Ltd.
TCW/Crescent Mezzanine Partners II, L.P.
TCW/Crescent Mezzanine Trust II
TCW Leveraged Income Trust, L.P.
TCW Leveraged Income Trust II, L.P.
TCW Leveraged Income Trust IV, L.P.
NOTICE SCHEDULE
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P.,
GTCR Associates V
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
TA/Advent VIII L.P.,
Advent Atlantic and Pacific III L.P.,
TA Executives Fund LLC, or
TA Investors LLC
x/x XX Xxxxxxxxxx, Xxx.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Facsimile: (000) 000-0000
NMS Capital, L.P.
c/o Bank of America
000 X. XxXxxxx
Xxxxxxx, XX 00000
Attention: Xxx XxXxxxxxx
Xxxxx X. Xxxxx or Xxxxxxx X. Xxxxx
c/o CompDent Corporation
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
GE Financial Assurance Holdings, Inc.
000 Xxxx Xxxxx Xxxx, Xxxxxxxx X
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Xxxxxx Capital 1330 Investors I, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Wolverine Investment Pte. Ltd.
000 Xxxxxxxxx Xxxxx Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
with a copy to:
Wolverine Investment Ptd Ltd
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
and:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fleet Private Equity Co., Inc.
Fleet Equity Partners VII, X.X.
Xxxxxxxx Partners IV, X.X.
Xxxxxxx Plaza Partners
c/x Xxxxxxxx Management IV, L.P.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Kuznecki, Jr.
Facsimile: (000) 000-0000
TCW/Crescent Mezzanine Partners II, L.P.
TCW/Crescent Mezzanine Trust II
TCW Leveraged Income Trust, L.P.
TCW Leveraged Income Trust II, L.P.
TCW Leveraged Income Trust IV, L.P.
c/o TCW/Mezzanine, L.L.C.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxxx
Wiley X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx Xxxxxxx XxxXxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Spelions
Xxxxxx X. Xxxx
Xxxxx X. Xxxxx
c/o CompDent Corporation
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
The Xxxxxxx Fund
c/o Xxxx Xxxxx
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxxx Fund
GPH CB Partners
c/o Xxxxxxx X. Xxxxxx
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Lease Plan North America
c/o Xxxxxxx Xxxxxx
LaSalle Bank
000 Xxxxx XxXxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
