Exhibit 10.5
Execution Version
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
GMH HOLDING COMPANY
CITIGROUP VENTURE CAPITAL EQUITY PARTNERS, L.P,
CVC EXECUTIVE FUND LLC
CVC/SSB EMPLOYEE FUND, L.P.,
COURT SQUARE CAPITAL LIMITED,
THE CVC CO-INVESTORS IDENTIFIED HEREIN,
AND
THE MANAGEMENT INVESTORS IDENTIFIED HEREIN
Dated as of January 7th, 2005
TABLE OF CONTENTS
PAGE
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1. Definitions .......................................................... 1
2. Registrable Securities ............................................... 3
3. Incidental Registration .............................................. 3
(a) Right to Include Common Stock .................................... 3
(b) Priority in Incidental Registrations ............................. 4
(c) Expenses ......................................................... 5
(d) Liability for Delay .............................................. 5
(e) Participation in Underwritten Registration ....................... 5
4. Demand Registration .................................................. 5
(a) Right to Demand Resistration ..................................... 5
(b) Number of Demand Registrations ................................... 6
(c) Priority on Demand Registration .................................. 6
(d) Expenses ......................................................... 6
5. Registration Procedures .............................................. 6
6 Indemnification ...................................................... 9
(a) Indemnification by the Company ................................... 9
(b) Indemnification by the Holders of Registrable Securities Which Are
Registered ....................................................... 10
(c) Conduct of Indemnification Proceedings ........................... 10
(d) Contribution ..................................................... 11
7. Hold-Back Agreements ................................................. 11
(a) Restrictions on Public Sale by Company and Holders of Registrable
Securities ....................................................... 11
(b) Certain Holders of Registrable Securities Excepted ............... 12
8. Underwritten Registration ............................................ 12
9. Miscellaneous ........................................................ 12
(a) Amendment and Modification ....................................... 12
(b) Additional Parties ............................................... 13
(c) Survival of Representations and Warranties ....................... 13
(d) Successors and Assigns; Entire Agreement ......................... 13
(e) Separability ..................................................... 13
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TABLE OF CONTENTS
(continued)
PAGE
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(f) Notices ............................................................. 13
(g) Governing Law ....................................................... 14
(h) Headings ............................................................ 15
(i) Counterparts ........................................................ 15
(j) Further Assurances .................................................. 15
(k) Termination ......................................................... 15
(l) Remedies ............................................................ 15
(m) Party No Longer Owning Securities ................................... 15
(n) No Effect on Employment ............................................. 15
(o) Pronouns ............................................................ 15
(p) Current Public Information .......................................... 15
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TABLE OF DEFINED TERMS
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Additional Party ........................................................ 13
Agreement ............................................................... 1
Commission .............................................................. 1
Common Stock ............................................................ 1
Company ................................................................. 0
Xxxxx Xxxxxx ............................................................ 1
CVC Co-Investors ........................................................ 1
Damages ................................................................. 1,9
Demand Notice ........................................................... 6
Demand Registration ..................................................... 1,5
Demand Registration Request ............................................. 5
Exchange Act ............................................................ 2
Fund .................................................................... 1
Fund Associate .......................................................... 2
Incidental Registration ................................................. 2,4
Initial Public Offering ................................................. 2
Inspector ............................................................... 8
Inspectors .............................................................. 8
Investor ................................................................ 1
Investors ............................................................... 1
Management Investors .................................................... 1
Nasdaq .................................................................. 8
Notice .................................................................. 4
Person .................................................................. 2
Prospectus .............................................................. 2
Records.................................................................. 8
Registrable Securities .................................................. 3
Registration Expenses ................................................... 2
Registration Statement................................................... 2
Securities Exchange Agreement............................................ 3
Securities Purchase and Holders Agreement ............................... 3
Special Registration Statement .......................................... 3
underwritten offering ................................................... 3
underwritten registration ............................................... 3
Unit Offering ........................................................... 3
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated January 7, 2005 (the
"Agreement"), by and among GMH HOLDING COMPANY, a Delaware corporation (the
"Company"), CITIGROUP VENTURE CAPITAL EQUITY PARTNERS, L.P., a Delaware limited
partnership, CVC EXECUTIVE FUND LLC, a Delaware limited liability company,
CVC/SSB EMPLOYEE FUND, L.P., a Delaware limited partnership (collectively, the
"Fund"), COURT SQUARE CAPITAL LIMITED, a Delaware corporation ("Court Square")
the other persons listed on the signature pages hereto as "CVC Co-Investors"
(such persons, the "CVC Co-Investors"), and the other individuals listed on the
signature pages hereto as "Management Investors" (such individuals, the
"Management Investors"). The Fund, Court Square, the CVC Co-Investors and the
Management Investors are sometimes referred to hereinafter individually as an
"Investor" and collectively as the "Investors."
Terms
In order to induce the Investors to enter into the Securities Purchase
and Holders Agreement and the Securities Exchange Agreement (each as defined
below), the Company has agreed to provide the Registration Rights set forth in
this Agreement.
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means (i) shares of the Class A Common Stock, par value
$.001 per share, of the Company, including shares of Class A Common Stock
issuable upon the conversion of shares of Class B Common Stock, par value $.001
per share, of the Company, (ii) shares of Class L Common Stock, par value $.001
per share, of the Company, (iii) shares of the Class A Common Stock, par value
$.001 per share of the Company that are issued upon exercise of the Court Square
Warrant (as such term is defined in the Securities Purchase and Holders
Agreement), and (iv) any shares of capital stock of the Company issued or
issuable with respect to securities referred to in clauses (i) and (ii) above by
way of a stock dividend or distribution payable thereon or stock split, reverse
stock split, recapitalization, reclassification, reorganization, exchange,
subdivision or combination thereof.
"Damages" has the meaning set forth in Section 6(a) hereof.
"Demand Registration" has the meaning set forth is Section 4(a)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fund Associate" means any CVC Co-Investor and any Permitted
Transferee of the Fund.
"Incidental Registration" has the meaning set forth in Section 3(a)
hereof.
"Initial Public Offering" means the first issuance of Common Stock by
the Company in a Public Offering pursuant to a registration statement filed
with, and declared effective by, the Securities and Exchange Commission pursuant
to the Securities Act (other than (i) a Special Registration Statement or (ii) a
registration statement relating to a Unit Offering).
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"Registration Expenses" means the costs and expenses of all
registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to the terms hereof
(including all federal and state registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of the Company's independent public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
registration)) other than the costs and expenses of any Investors whose
Registrable Securities are to be registered pursuant to the terms hereof
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any accountants or other representatives retained by any
Investor, provided, however, that the term "Registration Expenses" shall include
the fees and expenses of one counsel for the holders of Registrable Securities
designated by the holder of a majority of Registrable Securities being
registered, or proposed to be registered, in any offering pursuant to the terms
hereof.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the terms
hereof, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Registrable Securities" has the meaning set forth in Section 2
hereof.
"Securities Exchange Agreement" means the Securities Exchange
Agreement, dated as of the date hereof, as amended or supplemented, among the
Company and the Management Investors.
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"Securities Purchase and Holders Agreement" means the Securities
Purchase and Holders Agreement, dated as of the date hereof, among the Company
and the Investors.
"Special Registration Statement" means (i) a registration statement on
Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's security holders, employees, directors, consultants or other
business associates or (ii) a registration statement registering a Unit
Offering.
"underwritten registration" or "underwritten offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Unit Offering" shall mean a Public Offering of a combination of debt
and equity securities of the Company in which not more than ten percent (10%) of
the gross proceeds received from the sale of such securities is attributed to
such equity securities.
All other capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Securities Purchase and Holders
Agreement.
2. Registrable Securities. The securities entitled to the benefits set
forth herein are the Registrable Securities. As used herein, "Registrable
Securities" means the shares of Common Stock that are issued (or issuable) and
outstanding on the date hereof and are held by an Investor and the shares of
Common Stock that become issued (or issuable) and outstanding after the date
hereof and are acquired by an Investor; provided, however, that each share of
Common Stock shall cease to be a Registrable Security when (i) it has been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering it; (ii) it is distributed to the
public pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act; or (iii) it has otherwise been transferred and a new certificate
or other evidence of ownership for it not bearing or requiring a legend as set
forth in Section 3.2 of the Securities Purchase and Holders Agreement (or other
legend of similar import) and not subject to any stop transfer order has been
delivered by or on behalf of the Company and no other restriction on transfer
exists under the Securities Act.
3. Incidental Registration.
(a) Right to Include Common Stock. If at any time or from time to time
following the date the Company has registered its Common Stock pursuant to
Section 12 of the Exchange Act the Company at any time proposes to register any
of its Common Stock under the Securities Act (other than on a Special
Registration Statement) whether or not for sale for its own account, it will
each such time, as promptly as practicable following the date of filing with the
U.S. Securities and Exchange Commission or other applicable regulatory authority
of a registration statement or similar document with respect to such
registration, give written notice (the "Notice") to all holders of Registrable
Securities of its intention to issue its Common Stock under the Securities Act
on, and of such holders' rights under this Section 3. Upon the written request
of any such holders of Registrable Securities made within 15 days of the date of
the
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Notice (which request shall specify the aggregate number of the Registrable
Securities to be registered and will also specify the intended method of
disposition thereof), the Company will effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof (an "Incidental Registration"), to
the extent required to permit the public disposition (in accordance with such
intended methods thereof) of the Registrable Securities to be so registered;
provided, however, that (i) if, at any time after giving written notice of its
intention to register shares of Common Stock and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register the Company's Common
Stock, the Company shall 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); (ii) if a registration requested pursuant to this Section
3 shall involve an underwritten public offering, any holder of Registrable
Securities requesting to be included in such registration may elect, in writing
at least 30 days prior to the effective date of the registration statement filed
in connection with such registration, not to register such securities in
connection with such registration; and (iii) if, at any time after the 180-day
or shorter period specified in Section 3(b), the sale of the securities has not
been completed, the Company may withdraw from the registration on a pro rata
basis (based on the number of Registrable Securities requested by each holder of
Registrable Securities to be so registered) the Registrable Securities which the
Company has been requested to register and which have not been sold.
(b) Priority in Incidental Registrations. If a registration
pursuant to Section 3(a) involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the total
number of shares of Common Stock to be included in such registration, including
the Registrable Securities requested to be included pursuant to this Section 3,
exceeds the maximum number of shares of Common Stock specified by the managing
underwriter that may be distributed without adversely affecting the price,
timing or distribution of such shares of Common Stock, then the Company shall
include in such registration only such maximum number of Registrable Securities
which, in the reasonable opinion of such underwriter or underwriters, can be
sold in the following order of priority: (i) first, all of the shares of Common
Stock that the Company proposes to sell for its own account, if any, (ii)
second, all of the shares of Common Stock being registered by holder(s) of
Registrable Securities pursuant to a Demand Registration (as hereinafter
defined), and (iii) third, the Registrable Securities of the holder(s) of
Registrable Securities requested to be included in such Incidental Registration.
To the extent that shares of Common Stock to be included in the Incidental
Registration must be allocated among the holders(s) of Registrable Securities
pursuant to clause (iii) above, such shares shall be allocated pro rata among
the holders(s) of Registrable Securities based on the number of shares of Common
Stock that such holders(s) of Registrable Securities shall have requested to be
included therein. Notwithstanding the foregoing, if an Incidental Registration
is an underwritten offering, the managing underwriter or underwriters may select
shares for inclusion, or exclude shares completely, in such Incidental
Registration on a basis other than a pro rata basis if, in the reasonable
opinion of such underwriter or
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underwriters, selection on such other basis, or inclusion of such shares, would
be material to the success of the offering.
(c) Expenses. The Company will pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 3.
(d) Liability for Delay. The Company shall not be held
responsible for any delay in the filing or processing of a registration
statement which includes any Registrable Securities due to requests by holders
of Registrable Securities pursuant to this Section 3 nor for any delay in
requesting the effectiveness of such registration statement.
(e) Participation in Underwritten Registrations. No holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such holder (i) agrees to sell his or its Common Stock on the
basis provided in any underwriting arrangements approved by the persons who have
selected the underwriter and (ii) accurately completes in a timely manner and
executes all questionnaires, powers of attorney, escrow agreements, underwriting
agreements and other documents customarily required under the terms of such
underwriting arrangements.
4. Demand Registration.
(a) Right to Demand Registration. Subject to Section 4(b) below,
the Fund, any Fund Associate (so long as such Fund Associate holds at least 10%
of the Common Stock) and Court Square (so long as Court Square holds at least 1%
of the Common Stock, assuming full exercise of the warrant issued to Court
Square by the Company as of the date hereof) shall be entitled to make a written
request ("Demand Registration Request") to the Company for registration with the
Commission under and in accordance with the provisions of the Securities Act of
all or part of the Registrable Securities owned by it (a "Demand Registration")
(which Demand Registration Request shall specify the intended number of
Registrable Securities to be disposed of by such holder and the intended method
of disposition thereof); provided, however, that (i) the Company may, if the
Board of Directors so determines in the exercise of its reasonable judgment that
due to a pending or contemplated acquisition or disposition or public offering
it would be inadvisable to effect such Demand Registration at such time, defer
such Demand Registration for a single period not to exceed 90 days, and (ii) if
the Company elects not to effect the Demand Registration pursuant to the terms
of this sentence, no Demand Registration shall be deemed to have occurred for
purposes hereof. Promptly after receipt of the Demand Registration Request, the
Company will serve written notice (the "Demand Notice") of such Demand
Registration Request to all holders of Registrable Securities and, subject to
paragraph (c) below, the Company will include in such registration all
Registrable Securities of such holders with respect to which the Company has
received written requests for inclusion therein from such holders within fifteen
(15) business days after the receipt by the applicable holder of the Demand
Notice. All requests made pursuant to this paragraph 4(a) will specify the
aggregate number of the Registrable Securities to be registered and will also
specify the intended methods of disposition thereof.
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(b) Number of Demand Registrations. The Fund and any Fund
Associate shall be entitled to make one or more Demand Registration Requests at
any time. Court Square shall be entitled to make one, and not more than one,
Demand Registration Request anytime after 90 days after the Company's Initial
Public Offering, during the term of this Agreement. A Demand Registration shall
not be counted as a Demand Registration hereunder until such Demand Registration
has been declared effective and maintained continuously effective for a period
of at least six months or such shorter period when all Registrable Securities
included therein have been sold in accordance with such Demand Registration.
(c) Priority on Demand Registration. If any of the Registrable
Securities proposed to be registered pursuant to a Demand Registration are to be
sold in a firm commitment underwritten offering and the managing underwriter or
underwriters of a Demand Registration advise the Company and the holders of such
Registrable Securities in writing that in its or their reasonable opinion the
number of shares of Common Stock proposed to be sold in such Demand Registration
exceeds the maximum number of shares specified by the managing underwriter that
may be distributed without adversely affecting the price, timing or distribution
of the Common Stock, the Company shall include in such registration only such
maximum number of Registrable Securities which, in the reasonable opinion of
such underwriter or underwriters can be sold in the following order of priority:
(i) first, the Registrable Securities requested to be included in such Demand
Registration held by the party requesting such Demand Registration; (ii) second,
shares of Common Stock requested to be included in such Demand Registration held
by holders granted Demand Registration rights pursuant to the terms hereof other
than the holder requesting the relevant Demand Registration, provided that such
amount shall be allocated among such other holders on a pro rata basis based
upon their respective percentage of ownership of the total number of shares of
Common Stock then outstanding, (iii) third, shares of Common Stock to be offered
by the Company in such Demand Registration; and (iv) fourth, shares of Common
Stock requested to be included in such Demand Registration held by all other
holders of Common Stock, provided that such amount shall be allocated among such
other holders on a pro rata basis based upon their respective percentage of
ownership of the total number of shares of Common Stock then outstanding.
(d) Expenses. The Company will pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 4.
5. Registration Procedures. If and whenever the Company is required to
effect or cause the registration of any Registrable Securities under the
Securities Act as provided herein, the Company will, as expeditiously as
possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities, and use its best efforts to cause
such registration statement to become effective; provided, however, that the
Company may discontinue any registration of its securities which is being
effected pursuant to Sections 3 or 4 herein at any time prior to the effective
date of the registration statement relating thereto, provided, however, that any
such discontinuance is conducted in accordance with all other applicable
provisions hereof;
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(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 180 days or such shorter period which will terminate
when all Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each such amendment and
supplement thereof (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall request, and do any and
all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or subject itself to general taxation in any jurisdiction
where it is not then so subject;
(e) immediately notify each seller of any Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act within the appropriate period
mentioned in clause (b) of this Section 5, of the Company becoming aware that
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and within ten
days prepare and furnish to all sellers a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) if such Registrable Securities are not already listed or
quoted and if such listing is then permitted under the rules of an exchange on
which the Common Stock is then listed or under the rules of the Nasdaq National
Market ("Nasdaq"), use its best efforts to list such Registrable Securities on
any securities exchange on which the Common Stock is then listed or Nasdaq, and
provide an independent transfer agent and registrar for such Registrable
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Securities covered by such registration statement not later than the effective
date of such registration statement;
(g) furnish to each seller of Registrable Securities covered by
such registration statement a signed counterpart, addressed to such seller (and
the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration involves
an underwritten public offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in form and substance to the
sellers of not less than 50% of such Registrable Securities (and the managing
underwriter, if any); and
(ii) a "comfort" letter, dated the effective date of such
registration statement (or, if such registration involves an underwritten public
offering, dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have certified the Company's
financial statements included in such registration statement, covering such
matters with respect to such registration statement as are customarily covered
in accountants' letters delivered to the underwriters in underwritten offerings
of securities as may reasonably be requested by the sellers of not less than 50%
of such Registrable Securities (and the managing underwriter, if any); and
(h) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (individually, an "Inspector" and
collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility (collectively, the "Records"), and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement; provided, however, that any Records that are
designated by the Company in writing as confidential shall be kept confidential
by the Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such registration statement or
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or by any regulatory authority
having jurisdiction. Each Investor agrees that non-public information obtained
by it as a result of such Inspections shall be deemed confidential and
acknowledges its obligations under the Federal securities laws not to trade any
securities of the Company on the basis of material non-public information.
The Company may require each seller of Registrable Securities as
to which any registration is being effected promptly to furnish to the Company
such information regarding the distribution of such Registrable Securities as
may be legally required. Such information shall be furnished in writing and
shall state that it is being furnished for use in the registration statement.
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Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in clause (e) of this Section
5, such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5, and, if so directed by
the Company, such holder will 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 the Company's notice. In the event the Company shall give any such
notice, the period mentioned in clause (b) of this Section 5 shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (e) of this Section 5 and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5.
6. Indemnification.
(a) Indemnification by the Company. The Company hereby agrees to
indemnify and hold harmless each holder of Registrable Securities which shall
have been registered under the Securities Act, and such holder's officers,
directors and agents and each other Person, if any, who controls such holder
within the meaning of the Securities Act and each other Person (including
underwriters) who participates in the offering of such Registrable Securities
against any losses, claims, damages, liabilities, reasonable attorneys' fees,
costs or expenses (collectively, the "Damages"), joint or several, to which such
holder or controlling Person or participating Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact made by the Company or its agents
contained in any registration statement under which such Registrable Securities
are registered under the Securities Act, in any preliminary prospectus or final
prospectus contained therein, or in any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder of Registrable
Securities or such controlling Person or participating Person in connection with
investigating or defending any such Damages or proceeding; provided, however,
that the Company will not be liable in any such case to the extent that any such
Damages arise out of or are based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
said preliminary or final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
holder or such controlling or participating Person, as the case may be,
specifically for inclusion in any such document; or (ii) an untrue statement or
alleged untrue statement, omission or alleged omission in a prospectus if such
untrue statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the prospectus which amendment or
supplement is delivered to such holder in a timely manner and such holder
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thereafter fails to deliver such prospectus as so amended or supplemented prior
to or concurrently with the sale of such Registrable Securities to the Person
asserting such Damages.
(b) Indemnification by the Holders of Registrable Securities
Which Are Registered. It shall be a condition of the Company's obligations
herein to effect any registration under the Securities Act that there shall have
been delivered to the Company an agreement or agreements duly executed by each
holder of Registrable Securities to be so registered, whereby such holder agrees
to indemnify and hold harmless the Company, its directors, officers and agents
and each other Person, if any, which controls the Company within the meaning of
the Securities Act against any Damages, joint or several, to which the Company,
or such other Person or such Person controlling the Company may become subject
under the Securities Act or otherwise, but only to the extent that such Damages
(or proceedings in respect thereof) arise out of or are based upon any untrue
statements or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such
Registrable Securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein or in any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which, in each such
case, has been made in or omitted from such registration statement, said
preliminary or final prospectus or said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by
such holder of Registrable Securities specifically for inclusion in such
document. 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 furnished in writing by such Persons
specifically for inclusion in any prospectus or registration statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of the commencement of any action or proceeding involving a
claim referred to in the preceding Sections 6(a) and 6(b); and (ii) unless the
indemnified party has been advised by its counsel that a conflict of interest
exists between such indemnified and indemnifying parties with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). No indemnifying party will consent
to the 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 such
indemnified party of a release from all liability in respect of such claim or
litigation; provided, however, that no indemnifying party will consent to the
entry of any judgment or enter into any settlement (other than for the payment
of money only) without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party
-10-
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 such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided
for in the preceding Sections 6(a) or 6(b) is unavailable to an indemnified
party in respect of any Damages referred to therein, the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Damages in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the indemnifying
party, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action; provided, however, that in no event shall the liability of
any selling holder of Registrable Securities hereunder be greater in amount than
the difference between the dollar amount of the proceeds received by such holder
upon the sale of the Registrable Securities giving rise to such contribution
obligation and all amounts previously contributed by such holder with respect to
such Damages. 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 fraudulent misrepresentation.
7. Hold-Back Agreements
(a) Restrictions on Public Sale by Company and Holders of
Registrable Securities. The Company and each holder of Registrable Securities
whose Registrable Securities are eligible for inclusion in a Registration
Statement filed pursuant to Sections 3 or 4, if requested by the managing
underwriter or underwriters in an underwritten offering of any Registrable
Securities, agrees not to, directly or indirectly (except with respect to the
Company in connection with a Special Registration Statement), (i) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any Registrable Securities
(including, without limitation, Registrable Securities that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and Registrable Securities
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Registrable Securities, or (ii) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such Registrable
Securities, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Registrable Securities or other securities, in
cash or otherwise, during the 10-day period prior to, and for a period of 90
days after (or such longer period, not to exceed 180 days, which may be required
by the managing underwriter or underwriters, or such shorter period as
-11-
the managing underwriter or underwriters may agree), the effective date of the
Registration Statement, to the extent timely notified in writing by the managing
underwriter, or, with respect to each such holder of Registrable Securities, the
Company. Additionally, the Company agrees to use reasonable efforts to cause
each holder of Common Stock purchased from the Company at any time after the
date of the Agreement (other than in a registered public offering) to agree to
the provisions of this Section 7(a).
(b) Certain Holders of Registrable Securities Excepted. The
provisions of Section 7(a) shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such holder shall
undertake, in its request to participate in any such underwritten offering, not
to effect any public sale or distribution of Registrable Securities (except as
part of such underwritten registration) during such period unless it has
provided 45 days prior written notice of such sale or distribution to the
managing underwriter or underwriter.
8. Underwritten Registration
If any of the Registrable Securities covered by any Incidental
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Company and, in the case of a Demand Registration,
approved by the Fund.
Notwithstanding anything herein to the contrary, no Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwritten arrangements approved by the Persons entitled hereunder to approve
such arrangement and (b) accurately completes and executes all questionnaires,
powers of attorney, indemnities, custody agreements, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) Court Square,
(iii) the holders of a majority of the Common Stock held by the Fund and any
Fund Associates (so long as the Fund and the Fund Associates own in the
aggregate the lesser of (A) ten percent (10%) of the outstanding Common Stock on
a fully diluted basis or (B) the number of shares of Common Stock held as of the
Closing), (iv) the holders of a majority of the outstanding Common Stock on a
fully diluted basis (including shares of Common Stock owned by the Fund and the
Fund Associates) and (v) with respect to any term herein that directly and
adversely affects only the Management Investors, the holders of a majority of
the Common Stock held by the Management Investors if such amendment would
materially adversely affect such Management Investors. No course of dealing
between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any person under or by reason of this Agreement.
-12-
(b) Additional Parties. The Board of Directors of the Company
shall be entitled, but not obligated, with the consent of the Fund, to allow any
purchaser or acquirer of equity securities (or securities or rights convertible
or exercisable into equity securities), of the same type and class of the
Registrable Securities, to execute a counterpart to this Agreement and become a
party hereto (each, an "Additional Party"), in which case the equity securities
issued or issuable to any such Additional Party shall be deemed to be
"Registrable Securities" subject to the terms and conditions hereof and such
Additional Party shall be deemed to be a holder of "Registrable Securities" for
purposes hereof. Except as set forth in this Section 9(b), the Company will not
grant to any other persons any registration rights.
(c) Survival of Representations and Warranties. All
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement and the
Closing Date and the consummation of the transactions contemplated hereby,
regardless of any investigation made by an Investor or on its, his or her
behalf.
(d) Successors and Assigns; Entire Agreement. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understanding among the parties as to the subject matter hereof
and merges and supersedes all prior discussions and understandings of any and
every nature among them.
(e) Separability. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
(f) Notices. All notices provided for or permitted hereunder
shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery to the
other party at the following addresses (or at such other address as shall be
given in writing by any party to the others):
If to the Company to:
GMH Holding Company
c/o Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
With a required copy to:
-00-
Xxxxxxx XXX
0000 Xxxx Xxxxxxxx Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Fund or any of the CVC Co-Investors, to:
Citicorp Venture Capital Equity Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
If to Court Square, to:
Court Square Capital Limited
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Jr.
Facsimile: (000) 000-0000
With a required copy (which shall not constitute Notice) to:
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Attention: Xxxx Xxxx, Esq.
Facsimile: (000)000-0000
If to the Management Investors or any of them, to their addresses as
listed in the signature pages hereto.
All such notices shall be deemed to have been duly given: when
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 transmission confirmation is received during normal business
hours, if telecopied; and on the next business day, if timely delivered to an
air courier guaranteeing overnight delivery.
(g) Governing Law. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of the State of Delaware, without giving effect to principles
of conflicts of law.
-14-
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
(i) Counterparts. This Agreement may be executed in two or more
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 instrument.
(j) Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(k) Termination. Unless sooner terminated in accordance with its
terms, this Agreement shall terminate on the fifteenth (15th) anniversary of the
Closing Date, provided that the indemnification rights and obligations set forth
in Section 6 hereof shall survive the termination of this Agreement.
(l) Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its, his or her obligations under this Agreement,
any party injured or to be injured by such breach, in addition to being entitled
to exercise all lights granted by law, including recovery of damages, will be
entitled to specific performance of its, his or her rights under this Agreement.
The parties agree that the provisions of this Agreement shall be specifically
enforceable) it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
(m) Party No Longer Owning Securities. If a party hereto ceases
to own any Common Stock or securities convertible into Common Stock, such party
will no longer be deemed to be an Investor or Management Investor for purposes
of this Agreement, provided that the indemnification rights and obligations set
forth in Section 6 hereof shall survive any such cessation of ownership.
(n) No Effect on Employment. Nothing herein contained shall
confer on any Management Investor the right to remain in the employ of the
Company or any of its subsidiaries or Affiliates.
(o) Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
(p) Current Public Information. At all times after the Company
has filed a registration statement with the Commission pursuant to the
requirements of either the Securities Act or the Exchange Act, and as long as
the Investors shall hold any Registrable Securities, the Company will file all
reports required to be filed by it under the Securities Act and
-15-
the Exchange Act and the rules and regulations adopted by the 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 under
the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the Commission.
-16-
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement the day and year first above written.
GMH HOLDING COMPANY
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title:
---------------------------------
CITIGROUP VENTURE CAPITAL EQUITY
PARTNERS, L.P.
By: CVC PARTNERS, LLC,
its General Partner
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title:
---------------------------------
CVC EXECUTIVE FUND LLC
By: CITIGROUP VENTURE CAPITAL GP
HOLDINGS, LTD., its Managing Member
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title:
---------------------------------
CVC/SSB EMPLOYEE FUND, L.P.
By: CVC PARTNERS, LLC,
its General Partner
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title:
---------------------------------
COURT SQUARE CAPITAL LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title:
---------------------------------
CVC CO-INVESTORS:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxxxxx Xxxxxx
----------------------------------------
Xxxxxxxxxxx Xxxxxx
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxx X. Xxxxxx
----------------------------------------
Xxx X. Xxxxxx
/s/ Xxxx X. Xxx
----------------------------------------
Xxxx X. Xxx
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
ALCHEMY, L.P.
BY: (Illigible)
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
XX PARTNERS LP
BY: /s/ Xxxx X. Xxxxxx XX
------------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Authorized Signatory and General
Partner
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
\
THE NATASHA FOUNDATION
By: /s/ Illegible
------------------------------------
Name:
----------------------------------
Title: VP
/s/ Xxxxx xxx Xxxxxxx
----------------------------------------
Xxxxx xxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
ABG INVESTMENT MANAGEMENT, LLC
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Managing Member
MANAGEMENT INVESTORS:
/s/ Xxx XxXxxxxx
----------------------------------------
Xxx XxXxxxxx
Address: 000 Xxxx Xxx Xxx #0X
Xxx Xxxx, Xx 00000
Telephone No.:
-------------------------
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx XX 000000
Telephone No.: 770- 000- 0000
/s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxxx XX 00000
Telephone No.: 678 - 442 - 0859
/s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx XX 00000
Telephone No.: 678 - 000-0000
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
Address: 00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx XX 00000
Telephone No.: 770- 000- 0000
/s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
Address: 0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Telephone No.: 000- 000-0000
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Telephone No.: 770- 934 - 7574
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
-2-
