Exhibit 7.03
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
THE SEVERAL INVESTORS LISTED ON SCHEDULE I HERETO
AND
MONEYGRAM INTERNATIONAL, INC.
DATED AS OF MARCH 25, 2008
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.....................................................................................1
Section 1.1. Certain Defined Terms.........................................................1
Section 1.2. Terms Generally...............................................................4
ARTICLE II REGISTRATION RIGHTS.............................................................................5
Section 2.1. Demand Registrations..........................................................5
Section 2.2. Piggyback Registrations.......................................................8
Section 2.3. Lock-Up Agreements............................................................9
Section 2.4. Registration Procedures......................................................10
Section 2.5. Rule 144.....................................................................15
Section 2.6. Certain Additional Agreements................................................15
Section 2.7. Indemnification..............................................................16
Section 2.8. Rule 144; Rule 144A..........................................................20
Section 2.9. Underwritten Registrations...................................................20
Section 2.10. Registration Expenses........................................................20
ARTICLE III MISCELLANEOUS..................................................................................21
Section 3.1. Other Activities; Nature of Holder Obligations...............................21
Section 3.2. Adjustments Affecting Registrable Securities.................................22
Section 3.3. Other Registration Rights Agreements.........................................22
Section 3.4. Conflicting Agreements.......................................................22
Section 3.5. Termination..................................................................22
Section 3.6. Amendment and Waiver.........................................................22
Section 3.7. Severability.................................................................22
Section 3.8. Entire Agreement.............................................................22
Section 3.9. Successors and Assigns.......................................................23
Section 3.10. Counterparts; Execution by Facsimile Signature...............................23
Section 3.11. Remedies.....................................................................23
Section 3.12. Notices......................................................................23
Section 3.13. Governing Law; Consent to Jurisdiction.......................................25
- i -
INDEX OF PRINCIPAL TERMS
DEFINED TERM PAGE(S)
------------ -------
Action......................................................... 1
Affiliate...................................................... 1
Agreement...................................................... 1
automatic shelf registration statement ........................ 15
Beneficially Own............................................... 2
Business Day................................................... 1
Common Stock................................................... 2
Company........................................................ Recitals
Company Indemnitees............................................ 18
Demand Notice.................................................. 5
Demand Registration............................................ 5
Demand Registration Statement.................................. 5
Exchange Act................................................... 2
Governmental Entity............................................ 2
GS Group Investor.............................................. 2
GS Investors................................................... 2
GS Representative.............................................. 2
Holder Indemnitees............................................. 17
Holders........................................................ 2
Holders' Representative........................................ 2
Holding Period................................................. 2
indemnified party.............................................. 18
indemnifying party............................................. 18
Investor....................................................... Recitals
Issuer Free Writing Prospectus................................. 2
Law............................................................ 2
Losses......................................................... 17
Other Securities............................................... 2
Partnership Distribution....................................... 5
Person......................................................... 2
Piggyback Notice............................................... 8
Piggyback Registration......................................... 8
Prospectus..................................................... 3
Purchase Agreement............................................. Recitals
Registrable Securities......................................... 3
Registration Statement......................................... 3
Rule 144....................................................... 3
Rule 144A...................................................... 3
SEC............................................................ 3
Securities Act................................................. 3
- ii -
Selling Holder................................................. 4
Series B Preferred Shares...................................... Recitals
Series D Preferred Shares...................................... 3
Subscription Agreement......................................... Recitals
Subsidiary..................................................... 4
THL Investors.................................................. 3
THL Representative............................................. 4
Transfer....................................................... 4
Transferee..................................................... 4
WKSI........................................................... 15
- iii -
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 25, 2008, by and among
MoneyGram International, Inc., a Delaware corporation (the "COMPANY"), and the
several investors listed on SCHEDULE I hereto (such investors are sometimes
referred to individually as an "INVESTOR" and collectively as the "INVESTORS").
WHEREAS, the Company, the THL Investors and the GS Investors (each as
defined below) have entered into the Amended and Restated Purchase Agreement,
dated as of March 17, 2008 (as amended, supplemented, restated or otherwise
modified from time to time, the "PURCHASE AGREEMENT"), pursuant to and subject
to the terms and conditions of which, among other things, the Company has agreed
to sell to the THL Investors and the GS Investors and the THL Investors and GS
Investors have agreed to purchase from the Company shares of the Company's
Series B Participating Convertible Preferred Stock and Series B-1 Preferred
Stock (collectively, the "SERIES B PREFERRED SHARES").
WHEREAS, the Company has issued to the GS Group Investor shares of the
Company's Series B-1 Participating Convertible Preferred Stock pursuant to that
certain Subscription Agreement, dated March 25, 2008, by and between the Company
and the GS Group Investor (the "SUBSCRIPTION AGREEMENT").
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to
provide to the THL Investors and the GS Investors certain rights as set forth
herein, and pursuant to the Subscription Agreement, the Company has agreed to
provide to the GS Group Investor certain rights as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"ACTION" means any legal, administrative, regulatory or other suit,
action, claim, audit, assessment, arbitration or other proceeding, investigation
or inquiry.
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person. For purposes of this definition, "control" when used with respect
to any Person, means the possession, directly or indirectly, of the power to
cause the direction of management and/or policies of such Person, whether
through the ownership of voting securities by contract or otherwise.
"AGREEMENT" means this Registration Rights Agreement as it may be
amended, supplemented, restated or modified from time to time.
1
"BENEFICIAL OWNERSHIP" by a Person of any securities includes ownership
by any Person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares (i) voting power which
includes the power to vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or to direct the
disposition, of such security; and shall otherwise be interpreted in accordance
with the term "beneficial ownership" as defined in Rule 13d-3 adopted by the SEC
under the Exchange Act. The term "BENEFICIALLY OWN" shall have a correlative
meaning.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or a day on
which banking institutions in New York, New York are authorized or obligated to
close.
"COMMON STOCK" means the common stock of the Company, par value $0.01
per share.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC from time to time
thereunder.
"GOVERNMENTAL ENTITY" shall mean any court, administrative agency or
commission or other governmental authority or instrumentality, whether federal,
state, local or foreign and any applicable industry self-regulatory
organization.
"GS INVESTORS" means the investors listed under the heading "GS
Investors" on Schedule I.
"GS REPRESENTATIVE" means Xxxxxxx Xxxxx or any or any other person
designated by the GS Investors and the GS Group Investor, in lieu of Xxxxxxx
Xxxxx, as GS Representative.
"HOLDERS" means any Investor and any permitted Transferee of
Registrable Securities.
"HOLDERS' REPRESENTATIVE" means Xxx Xxxxxxx or any or any other Holder
designated by Xxx Xxxxxxx, in lieu of Xxx Xxxxxxx, as the Holders'
Representative.
"HOLDING PERIOD" means the period from the date of this Agreement until
January 1, 2009.
"ISSUER FREE WRITING PROSPECTUS" means an issuer free writing
prospectus, as defined in Rule 433 under the Securities Act, relating to an
offer of the Registrable Securities.
"LAW" means any statute, law, code, ordinance, rule or regulation of
any Governmental Entity.
"GS GROUP INVESTOR" means the investor listed under the heading "GS
Group Investor" on Schedule I.
"OTHER SECURITIES" means shares of equity securities of the Company
other than Registrable Securities.
"PERSON" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
2
subdivisions thereof or any group (within the meaning of Section 13(d)(3) of the
Exchange Act) comprised of two or more of the foregoing.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective Registration Statement in
reliance upon Rule 430A promulgated under the Securities Act), 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, any Issuer Free Writing Prospectus related thereto, and
all other amendments and supplements to such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" means (i) all shares of Common Stock acquired
by any Investor and its Affiliates on, and from and after, the date of this
Agreement, (ii) the Series B Preferred Shares, (iii) Series D Preferred Shares
issued upon conversion of Series B Preferred Shares, (iv) shares of Common Stock
issued upon conversion of Series B Preferred Shares or Series D Preferred
Shares, and (v) any securities issued directly or indirectly with respect to
such shares described in clauses (i), (ii), (iii) or (iv) because of stock
splits, stock dividends, reclassifications, recapitalizations, mergers,
consolidations, or similar events. As to any particular Registrable Securities,
once issued such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such Registration Statement or (ii) such
securities shall have been sold to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act.
"REGISTRATION STATEMENT" means any registration statement of the
Company under the Securities Act which permits the public offering of any of the
Registrable Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"RULE 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any successor rule that may be promulgated by the
SEC.
"RULE 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any successor rule that may be promulgated by
the SEC.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC from time to time thereunder.
"SELLING HOLDER" means each Holder of Registrable Securities included
in a registration pursuant to Article II.
3
"SERIES D PREFERRED SHARES" means the Series D Participating
Convertible Preferred Stock of the Company, par value $0.01 per share.
"SUBSIDIARY" of any Person shall mean those corporations and other
entities of which such Person owns or controls more than 50% of the outstanding
equity securities either directly or through an unbroken chain of entities as to
each of which more than 50% of the outstanding equity securities is owned
directly or indirectly by its parent; provided, however, that there shall not be
included any such entity to the extent that the equity securities of such entity
were acquired in satisfaction of a debt previously contracted in good faith or
are owned or controlled in a bona fide fiduciary capacity.
"THL INVESTORS" means the investors listed under the heading "THL
Investors" on Schedule I.
"THL REPRESENTATIVE" means Xxxxxx Xxxxxxx or any or any other person
designated by the THL Investors, in lieu of Xxxxxx Xxxxxxx, as THL
Representative.
"TRANSFER" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, or to enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, assignment, pledge, encumbrance, hypothecation or similar disposition.
"TRANSFEREE" means any of (i) the transferee of all or any portion of
the Registrable Securities held by any Investor or (ii) the subsequent
transferee of all or any portion of the Registrable Securities held by any
Transferee; provided, that no Transferee shall be entitled to any benefits of a
Transferee hereunder unless such Transferee executes and delivers to the Company
an instrument substantially in the form provided as Exhibit A attached hereto.
Section 1.2. Terms Generally. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation",
unless the context expressly provides otherwise. All references herein to
Sections, paragraphs, subparagraphs, clauses, Exhibits or Schedules shall be
deemed references to Sections, paragraphs, subparagraphs or clauses of, or
Exhibits or Schedules to this Agreement, unless the context requires otherwise.
Unless otherwise expressly defined, terms defined in this Agreement have the
same meanings when used in any Exhibit or Schedule hereto. Unless otherwise
specified, the words "this Agreement", "herein", "hereof", "hereto" and
"hereunder" and other words of similar import refer to this Agreement as a whole
(including the Schedules and Exhibits) and not to any particular provision of
this Agreement. The term "or" is not exclusive. The word "extent" in the phrase
"to the extent" shall mean the degree to which a subject or other thing extends,
and such phrase shall not mean simply "if". Unless expressly stated otherwise,
any Law defined or referred to herein means such Law as from time to time
amended, modified or supplemented, including by succession of comparable
successor Laws and references to all attachments thereto and instruments
incorporated therein. References to a Person are also to its permitted
successors and assigns. The table of contents and headings contained in this
4
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1. Demand Registrations.
(a) At any time and from time to time following the last day of the
Holding Period, the Holders' Representative shall have the right by delivering a
written notice to the Company (a "DEMAND NOTICE") to require the Company to,
pursuant to the terms of this Agreement, register under and in accordance with
the provisions of the Securities Act the number of Registrable Securities
Beneficially Owned by Holders and requested by such Demand Notice to be so
registered (a "DEMAND REGISTRATION"); provided, however, that in respect of four
out of the five Demand Registrations to which the Holders are entitled under
this Agreement, a Demand Notice may only be made if the amount of Registrable
Securities requested to be registered by the Holders' Representative is
reasonably expected to generate aggregate gross proceeds (prior to deducting
underwriting discounts and commissions and offering expenses) of at least $50
million. A Demand Notice shall also specify the expected method or methods of
disposition of the applicable Registrable Securities, including any distribution
to, and resale by, any partners of a Holder (a "PARTNER DISTRIBUTION"). As
promptly as practicable, but no later than 7 Business Days after receipt of a
Demand Notice, the Company shall give written notice of such Demand Notice to
all Holders of record of Registrable Securities.
(b) Following receipt of a Demand Notice, the Company shall use its
reasonable best efforts to file, as promptly as reasonably practicable, but not
later than 30 days after receipt by the Company of such Demand Notice (subject
to paragraph (f) of this Section 2.1), a Registration Statement (including,
without limitation, on Form S-3 (or any comparable or successor form or forms or
any similar short-form registration) by means of a shelf registration pursuant
to Rule 415 under the Securities Act, if so requested and the Company is then
eligible to use such a registration and if there is no then-currently effective
shelf registration statement on file with the SEC which would cover all the
Registrable Securities requested to be registered) (a "DEMAND REGISTRATION
STATEMENT") relating to the offer and sale of the Registrable Securities
requested to be included therein by the Holders' Representative and any other
Holder of Registrable Securities which shall have made a written request to the
Company for inclusion in such registration (which request shall specify the
maximum number of Registrable Securities intended to be disposed of by such
Selling Holder) within 20 days after the receipt of the Demand Notice (or 10
days if, at the request of the Holders' Representative, the Company states in
such written notice or gives telephonic notice to all Holders, with written
confirmation to follow promptly thereafter, that such registration will be on a
Form S-3), in accordance with the method or methods of disposition of the
applicable Registrable Securities elected by such Holders (including a Partner
Distribution), and the Company shall use its reasonable best efforts to cause
such Registration Statement to be declared effective under the Securities Act as
promptly as practicable after the filing thereof. The Company shall, at the
request of any Holder seeking to effect a Partner Distribution, use its
reasonable best efforts to file a Prospectus supplement or one or more
5
post-effective amendments and otherwise take action necessary to include therein
all disclosure and language deemed necessary or advisable by such Holder if such
disclosure or language was not included in the initial Registration Statement,
or revise such disclosure or language if deemed necessary or advisable by such
Holder, to effect such Partner Distribution; provided that no language shall be
included that the Company's counsel considers misleading, inaccurate or
otherwise inappropriate for inclusion in such document.
(c) If any of the Registrable Securities registered pursuant to a
Demand Registration are to be sold in a firm commitment underwritten offering,
and the managing underwriter(s) of such underwritten offering advise the Holders
in writing that it is their good faith opinion that the total number or dollar
amount of Registrable Securities proposed to be sold in such offering, together
with any Other Securities proposed to be included by holders thereof which are
entitled to include securities in such Registration Statement, exceeds the total
number or dollar amount of such securities that can be sold without having an
adverse effect on the amount, price, timing or distribution of the Registrable
Securities to be so included together with all such Other Securities, then there
shall be included in such offering the number or dollar amount of Registrable
Securities and such Other Securities that in the opinion of such managing
underwriter(s) can be sold without so adversely affecting such offering, and
such number of Registrable Securities and Other Securities shall be allocated
for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such
demand offering was requested by an Investor or its Affiliates, pro rata (if
applicable), based on the number of Registrable Securities Beneficially Owned by
each such Holder;
(ii) second, the Registrable Securities for which inclusion in
such demand offering was requested by the other Holders, pro rata (if
applicable), based on the number of Registrable Securities Beneficially Owned by
each such Holder; and
(iii) third, among any holders of Other Securities, pro rata,
based on the number of Other Securities Beneficially Owned by each such holder.
(d) The Holders collectively shall be entitled to request no more than
five Demand Registrations on the Company, and in no event shall the Company be
required to effect more than one Demand Registration in any nine month period.
(e) In the event of a Demand Registration, the Company shall be
required to maintain the continuous effectiveness of the applicable Registration
Statement for a period of at least 180 days after the effective date thereof or
such shorter period in which all Registrable Securities included in such
Registration Statement have actually been sold; provided, however, that nothing
in this Section 2.1(e) is intended to limit the Company's obligations to
maintain the continuous effectiveness of Short Form Registrations in accordance
with the provisions of Section 2.1(i).
(f) The Company shall be entitled to postpone (but not more than once
in any six-month period), for a reasonable period of time not in excess of 75
days (and not for periods exceeding, in the aggregate, 100 days during any
twelve-month period), the filing or initial effectiveness of a Demand
Registration Statement if the Company delivers to the Holders' Representative a
certificate signed by both the Chief Executive Officer and Chief Financial
Officer of the Company certifying that, in the good faith judgment of the Board
of Directors of the Company, such registration, offering or use would reasonably
6
be expected to materially adversely affect or materially interfere with any bona
fide and reasonably imminent material financing of the Company or any reasonably
imminent material transaction under consideration by the Company or would
require the disclosure of information that has not been, and is not otherwise
required to be, disclosed to the public, the premature disclosure of which would
materially adversely affect the Company.
(g) The Holders' Representative shall have the right to notify the
Company that it has determined that the Registration Statement relating to a
Demand Registration be abandoned or withdrawn, in which event the Company shall
promptly abandon or withdraw such Registration Statement.
(h) No request for registration will count for the purposes of the
limitations in Section 2.1(c) if (A) the Holders' Representative determines in
good faith to withdraw the proposed registration prior to the effectiveness of
the Registration Statement relating to such request due to marketing conditions
or regulatory reasons relating to the Company, (B) the Registration Statement
relating to such request is not declared effective within 60 days of the date
such Registration Statement is first filed with the SEC (other than by reason of
the applicable Holders having refused to proceed or a misrepresentation or an
omission by the applicable Holders), (C) prior to the sale or distribution of at
least 90% of the Registrable Securities included in the applicable registration
relating to such request, such registration is adversely affected by any stop
order, injunction or other order or requirement of the SEC or other Governmental
Entity or court, or (D) the conditions to closing specified in any underwriting
agreement or purchase agreement entered into in connection with the registration
relating to such request are not satisfied (other than as a result of a material
default or breach thereunder by the one or more Holders). Notwithstanding
anything to the contrary, the Company will pay all expenses (in accordance with
Section 2.9) in connection with any request for registration pursuant to this
Agreement regardless of whether or not such request counts toward the limitation
set forth above.
(i) Subject to Section 2.5, in addition to the Demand Registrations
provided pursuant to this Section 2.1, at all times following the last day of
the Holding Period, the Company will use its reasonable best efforts to qualify
for registration on Form S-3 or any comparable or successor form or forms or any
similar short-form registration (including pursuant to Rule 415 under the
Securities Act) ("SHORT-FORM REGISTRATION") and such Short-Form Registration
shall promptly following the last day of the Holding Period be filed by the
Company and constitute a shelf registration statement providing for the
registration of, and the sale on a continuous or delayed basis of, the
Registrable Securities, pursuant to Rule 415 under the Securities Act, to permit
the distribution of the Registrable Securities in accordance with the methods of
distribution elected by the Holders. In no event shall the Company be obligated
to effect any shelf registration other than pursuant to a Short-Form
Registration. Upon filing a Short-Form Registration, the Company will use its
reasonable best efforts to keep such Short-Form Registration effective with the
SEC at all times (notwithstanding anything to the contrary in Section 2.1(d))
and to refile such Short-Form Registration upon its expiration, and to cooperate
in any shelf take-down by amending or supplementing the prospectus statement
related to such Short-Form Registration as may reasonably be requested by the
Holders' Representative or as otherwise required, until the Holders no longer
hold Registrable Securities.
7
Section 2.2. Piggyback Registrations. (a) If, at any time following the
last day of the Holding Period, the Company (other than pursuant to Section 2.1)
proposes or is required to file a registration statement under the Securities
Act with respect to an offering of Common Stock or other equity securities,
whether or not for sale for its own account (other than a registration statement
(i) on Form X-0, Xxxx X-0 or any successor forms thereto, (ii) filed solely in
connection with any employee benefit or dividend reinvestment plan or (iii)
pursuant to a Demand Registration in accordance with Section 2.1 hereof), in a
manner that would permit registration of Registrable Securities for sale to the
public under the Securities Act, then the Company shall give prompt written
notice of such proposed filing at least 30 days before the anticipated filing
date (the "PIGGYBACK NOTICE") to the Holders. The Piggyback Notice shall offer
the Holders the opportunity to include in such registration statement the number
of Registrable Securities as they may request (a "PIGGYBACK REGISTRATION").
Subject to Section 2.2(b) hereof, the Company shall use its reasonable best
efforts to include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received from any Holder
written requests for inclusion therein within 15 days following receipt of any
Piggyback Notice by such Holder, which request shall specify the maximum number
of Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof. The Holders shall be permitted to
withdraw all or part of the Registrable Securities from a Piggyback Registration
at any time at least 2 Business Days prior to the effective date of the
Registration Statement relating to such Piggyback Registration. The Company
shall be required to maintain the effectiveness of the Registration Statement
for a Piggyback Registration for a period of 180 days after the effective date
thereof or such shorter period in which all Registrable Securities included in
such Registration Statement have actually been sold. There is no limitation on
the number of Piggyback Registrations pursuant to this Section 2.2 which the
Company is obligated to effect. No Piggyback Registration shall count towards
registrations required under Section 2.1.
(b) If any of the securities to be registered pursuant to the
registration giving rise to the Holders' rights under this Section 2.2 are to be
sold in an underwritten offering, the Holders shall be permitted to include all
Registrable Securities requested to be included in such registration in such
offering on the same terms and conditions as any Other Securities included
therein; provided, however, that if such offering involves a firm commitment
underwritten offering and the managing underwriter(s) of such underwritten
offering advise the Company in writing that it is their good faith opinion that
the total amount of Registrable Securities requested to be so included, together
with all Other Securities that the Company and any other Persons having rights
to participate in such registration intend to include in such offering, exceeds
the total number or dollar amount of such securities that can be sold without
having an adverse effect on the price, timing or distribution of the Registrable
Securities to be so included together with all Other Securities, then there
shall be included in such firm commitment underwritten offering the number or
dollar amount of Registrable Securities and such Other Securities that in the
opinion of such managing underwriter(s) can be sold without so adversely
affecting such offering, and such number of Registrable Securities and Other
Securities shall be allocated for inclusion as follows:
(i) first, all Other Securities being sold by the Company or by
any Person (other than a Holder) exercising a contractual right to demand
registration;
8
(ii) second, all Registrable Securities requested to be included
by the Holders, pro rata (if applicable), based on the number of Registrable
Securities Beneficially Owned by each such Holder; and
(iii) third, among any other holders of Other Securities
requesting such registration, pro rata, based on the number of Other Securities
Beneficially Owned by each such holder of Other Securities.
(c) The Company shall, at the request of any Holder seeking to effect a
Partner Distribution, use its reasonable best efforts to file any Prospectus
supplement or post-effective amendments and otherwise take any action necessary
to include therein all disclosure and language deemed necessary or advisable by
such Holder if such disclosure or language was not included in the initial
registration statement, or revise such disclosure or language if deemed
necessary or advisable by such Holder, to effect such Partner Distribution;
provided that no language shall be included that the Company's counsel considers
misleading, inaccurate or otherwise inappropriate for inclusion in such
document.
Section 2.3. Lock-Up Agreements.
(a) Each Holder agrees, in connection with any underwritten offering
made pursuant to a Registration Statement filed pursuant to this Article II in
which such Holder has elected to include Registrable Securities, if requested
(pursuant to a written notice) by the managing underwriter(s) not to effect any
public sale or distribution of any common equity securities of the Company (or
securities convertible into or exchangeable or exercisable for such common
equity securities) (except as part of such underwritten offering) during the
period commencing not earlier than 7 days prior to and continuing for not more
than 90 days (or such shorter period as the managing underwriter(s) may permit)
after the effective date of the related Registration Statement (or a Prospectus
supplement if the offering is made pursuant to a "shelf" registration) pursuant
to which such underwritten offering shall be made; provided, that such Holders
shall only be so bound so long as and to the extent that each other stockholder
having registration rights with respect to the securities of the Company is
similarly bound, and provided further that a request under this Section 2.3(a)
shall not be effective more than once in any twelve-month period.
(b) With respect to each underwritten offering of Registrable
Securities covered by a registration pursuant to Section 2.1, the Company agrees
not to effect any public sale or distribution, or to file any registration
statement (other than (x) any such registration statement required under Section
2.1 or (y) a registration statement (i) on Form X-0, Xxxx X-0 or any successor
forms thereto or (ii) filed solely in connection with any employee benefit or
dividend reinvestment plan) covering any of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the period commencing not earlier than 7 days prior to and continuing for
not more than 90 days (or such shorter period as the managing underwriter(s) may
permit) after the effective date of the related registration statement (or a
Prospectus supplement if the offering is made pursuant to a "shelf"
registration) pursuant to which such underwritten offering of Registrable
Securities shall be made, in each case, as may be requested by the managing
underwriter for such offering; provided that a request under this Section 2.3(b)
shall not be effective more than once in any twelve-month period.
9
Section 2.4. Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Article II, the
Company shall effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall cooperate in the sale of the
securities and shall, as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on such form which shall be available for the sale of
the Registrable Securities by the Holders or the Company in accordance with the
intended method or methods of distribution thereof (including a Partner
Distribution), and use its reasonable best efforts to cause such Registration
Statement to become effective and to remain effective as provided herein;
provided, however, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto (including documents that would be
incorporated or deemed to be incorporated therein by reference), the Company
shall furnish or otherwise make available to the Selling Holders, their counsel
and the managing underwriter(s), if any, copies of all such documents proposed
to be filed (including all exhibits thereto), which documents will be subject to
the reasonable review and comment of such counsel, and such other documents
reasonably requested by such counsel, including any comment letter from the SEC,
and, if requested by such counsel, provide such counsel reasonable opportunity
to participate in the preparation of such Registration Statement and each
Prospectus included therein and such other opportunities to conduct a reasonable
investigation within the meaning of the Securities Act, including reasonable
access to the Company's books and records, officers, accountants and other
advisors. The Company shall not file any such Registration Statement or
Prospectus or any amendments or supplements thereto (including such documents
that, upon filing, would be incorporated or deemed to be incorporated by
reference therein) with respect to any registration pursuant to Section 2.1 or
2.2 to which the Holders' Representative, its counsel, or the managing
underwriter(s), if any, shall reasonably object, in writing, on a timely basis,
unless, in the opinion of the Company, such filing is necessary to comply with
applicable Law.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective during the period provided herein
and comply in all material respects with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement, and cause the related Prospectus to be supplemented by any Prospectus
supplement or Issuer Free Writing Prospectus as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of the
securities covered by such Registration Statement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any,
promptly, and (if requested by any such Person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement, Issuer Free Writing
Prospectus or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other Governmental Entity for
amendments or supplements to a Registration Statement or related Prospectus or
Issuer Free Writing Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
10
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time the representations and warranties of the Company contained
in any agreement (including any underwriting agreement contemplated by Section
2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, and (vi) of the existence of any fact of which the Company becomes
aware that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference or any Issuer Free Writing Prospectus related thereto untrue in any
material respect or that requires the making of any changes in such Registration
Statement, Prospectus, documents or Issuer Free Writing Prospectus so that, in
the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading, and that in
the case of any Prospectus or Issuer Free Writing Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction at the reasonably
earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders
of a majority of the Registrable Securities being sold in connection with an
underwritten offering, promptly include in a Prospectus supplement,
post-effective amendment or Issuer Free Writing Prospectus such information as
the managing underwriter(s), if any, or such Holders may reasonably request in
order to permit the intended method of distribution of such securities and make
all required filings of such Prospectus supplement, such post-effective
amendment or Issuer Free Writing Prospectus as soon as practicable after the
Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing
underwriter, if any, without charge, such number of conformed copies of the
Registration Statement and each post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits, unless
requested in writing by such Holder, counsel or managing underwriter(s)), and
such other documents, as such Holders or such managing underwriter(s) may
reasonably request, and upon request a copy of any and all transmittal letters
or other correspondence to or received from, the SEC or any other Governmental
Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if
any, without charge, as many copies of the Prospectus or Prospectuses (including
each form of Prospectus and any Issuer Free Writing Prospectus related to any
such Prospectuses) and each amendment or supplement thereto as such Persons may
reasonably request in connection with the distribution of the Registrable
Securities; and the Company, subject to the last paragraph of this Section 2.4,
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Selling Holders and the managing underwriter(s), if any,
11
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus and any such amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the Selling
Holders, the managing underwriter(s), if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or "Blue Sky" laws of such jurisdictions within the United
States as any seller or managing underwriter(s) reasonably requests in writing
and to keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and to take any other action that may be necessary or advisable to
enable such Selling Holders to consummate the disposition of such Registrable
Securities in such jurisdiction; provided, however, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates (not
bearing any legends) representing Registrable Securities to be sold after
receiving written representations from each Selling Holder that the Registrable
Securities represented by the certificates so delivered by such Selling Holder
will be transferred in accordance with the Registration Statement, and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriter(s), if any, or the Selling Holders may request
at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other Governmental Entities within the United States, except as may be required
solely as a consequence of the nature of such Selling Holder's business, in
which case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals, as may be
necessary to enable the seller or sellers thereof or the managing
underwriter(s), if any, to consummate the disposition of such Registrable
Securities.
(k) Upon the occurrence of any event contemplated by Section
2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference or an Issuer Free Writing Prospectus related thereto, or
file any other required document so that, as thereafter delivered to the Selling
Holders, such Prospectus will not contain 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, in light of the circumstances under which they were
made, not misleading.
(l) Prior to the effective date of the Registration Statement relating
to the Registrable Securities, provide a CUSIP number for the Registrable
Securities.
12
(m) Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such Registration Statement from and
after a date not later than the effective date of such Registration Statement.
(n) Use its reasonable best efforts to cause all shares of Registrable
Securities covered by such Registration Statement to be authorized to be listed
on each national securities exchange, if any, on which similar securities issued
by the Company are then listed.
(o) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and take
all such other actions reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith or by the managing
underwriter(s), if any, to expedite or facilitate the disposition of such
Registrable Securities, and in connection therewith, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, (i) make such representations and warranties to the
Selling Holders and the managing underwriter(s), if any, with respect to the
business of the Company and its subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers in underwritten offerings, and, if true, confirm the same if and
when requested, (ii) use its reasonable best efforts to furnish to the Selling
Holders of such Registrable Securities opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriter(s), if any, and counsels
to the Selling Holders of the Registrable Securities), addressed to each Selling
Holder of Registrable Securities and each of the managing underwriter(s), if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such counsel and managing underwriter(s), (iii) use its reasonable best efforts
to obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any Subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement) who have certified the financial statements included in such
Registration Statement, addressed to each Selling Holder of Registrable
Securities (unless such accountants shall be prohibited from so addressing such
letters by applicable standards of the accounting profession) and each of the
managing underwriter(s), if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
substantially to the effect set forth in Section 2.7 hereof with respect to all
parties to be indemnified pursuant to said Section except as otherwise agreed by
the Holders of a majority of the Registrable Securities being sold in connection
therewith and the managing underwriter(s) and (v) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith, their counsel and the
managing underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company. The above shall be done at each
closing under such underwriting or similar agreement, or as and to the extent
required thereunder.
13
(p) Upon execution of a customary confidentiality agreement, make
available for inspection by a representative of the Selling Holders, the
managing underwriter(s), if any, and any attorneys or accountants retained by
such Selling Holders or managing underwriter(s), at the offices where normally
kept, during reasonable business hours, financial and other records, pertinent
corporate documents and properties of the Company and its Subsidiaries, and
cause the officers, directors and employees of the Company and its Subsidiaries
to supply all information in each case reasonably requested by any such
representative, managing underwriter(s), attorney or accountant in connection
with such Registration Statement.
(q) Cause its officers to use their reasonable best efforts to support
the marketing of the Registrable Securities covered by the Registration
Statement (including, without limitation, by participation in "road shows")
taking into account the Company's business needs.
(r) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and any applicable national
securities exchange, and make available to its security holders, as soon as
reasonably practicable (but not more than 18 months) after the effective date of
the Registration Statement, an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act.
(s) Take all reasonable action to ensure that any Issuer Free Writing
Prospectus utilized in connection with any registration covered by Section 2.1
or 2.2 complies in all material respects with the Securities Act, is filed in
accordance with the Securities Act to the extent required thereby, is retained
in accordance with the Securities Act to the extent required thereby and, when
taken together with the related Prospectus, Prospectus supplement and related
documents, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(t) Use its reasonable best efforts to take all other steps necessary
to effect the registration of Registrable Securities contemplated hereby.
To the extent the Company is a well-known seasoned issuer (as
defined in Rule 405 under the Securities Act) (a "WKSI") at the time any Demand
Registration request is submitted to the Company, and such Demand Registration
request requests that the Company file an automatic shelf registration statement
(as defined in Rule 405 under the Securities Act) (an "AUTOMATIC SHELF
REGISTRATION STATEMENT") on Form S-3, the Company shall file an automatic shelf
registration statement which covers those Registrable Securities which are
requested to be registered. The Company shall use its reasonable best efforts to
remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under
the Securities Act)) during the period during which such automatic shelf
registration statement is required to remain effective. If the Company does not
pay the filing fee covering the Registrable Securities at the time the automatic
shelf registration statement is filed, the Company agrees to pay such fee at
such time or times as the Registrable Securities are to be sold. Subject to
Section 2.5, if the automatic shelf registration statement has been outstanding
for at least three years, at the end of the third year the Company shall, upon
written request by the Holders' Representative, refile a new automatic shelf
registration statement covering the Registrable Securities, if there are any
remaining Registrable Securities covered thereunder. If at any time when the
Company is required to re-evaluate its WKSI status the Company determines that
14
it is not a WKSI, the Company shall use its reasonable best efforts to refile
the shelf registration statement on Form S-3 and, if such form is not available,
Form S-1 and keep such registration statement effective during the period during
which such registration statement is required to be kept effective.
If the Company files any shelf registration statement for the
benefit of the holders of any of its securities other than the Holders, the
Company agrees that it shall use its reasonable best efforts to include in such
registration statement such disclosures as may be required by Rule 430B under
the Securities Act (referring to the unnamed selling security holders in a
generic manner by identifying the initial offering of the securities to the
Holders) in order to ensure that the Holders may be added to such shelf
registration statement at a later time through the filing of a Prospectus
supplement rather than a post-effective amendment.
The Company may require each Selling Holder to furnish to the Company
in writing such information required in connection with such registration
regarding such Selling Holder and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request in writing
and the Company may exclude from such registration the Registrable Securities of
any Selling Holder who unreasonably fails to furnish such information within a
reasonable time after receiving such request.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
2.4(c)(ii), (c)(iii), or (c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 2.4(k) hereof, or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus; provided, however, that the Company shall extend
the time periods under Section 2.1 and Section 2.2 with respect to the length of
time that the effectiveness of a Registration Statement must be maintained by
the amount of time the Holder is required to discontinue disposition of such
securities.
Section 2.5. Rule 144. Notwithstanding anything in this Agreement to
the contrary, the Company shall not be required to file or refile any
registration statement pursuant to the provisions of Section 2.1(i), or refile
any automatic shelf registration statement pursuant to Section 2.4(t), if the
Company and the Holders' Representative shall receive a written opinion from
counsel reasonably satisfactory to the Company and the Holders' Representative
that the Holders can sell their Registrable Securities freely under Rule 144
without (x) any limitations on the amount of Registrable Securities which may be
sold by the Holders or (y) any other requirement imposed by Rule 144 (including,
without limitation, the requirement relating to the availability of current
public information with respect to the Company).
Section 2.6. Certain Additional Agreements. If any Registration
Statement or comparable statement under state "blue sky" laws refers to any
Holder by name or otherwise as the Holder of any securities of the Company, then
such Holder shall have the right to require (a) the insertion therein of
language, in form and substance satisfactory to such Holder and the Company, 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
15
Company's securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company, or (b) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel, required
by the Securities Act or any similar federal statute or any state "blue sky" or
securities law then in force, the deletion of the reference to such Holder;
provided, however, that if any Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company and if in such
Holder's sole and exclusive judgment, such Holder 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
reasonably satisfactory to such Holder and the Company 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 will 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 statute or any state "blue sky" or securities law then in force,
the deletion of the reference to such Holder; provided that with respect to this
clause (ii), if reasonably requested by the Company, 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.
Section 2.7. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless, to the fullest extent permitted by Law, each Selling Holder whose
Registrable Securities are covered by a Registration Statement or Prospectus,
the officers, directors, partners (limited and general), members, managers,
shareholders, accountants, attorneys, agents and employees of each of them, each
Person who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) each such Selling Holder and the officers,
directors, partners (limited and general), members, managers, shareholders,
accountants, attorneys, agents and employees of each such controlling Person,
each underwriter (including any Holder that is deemed to be an underwriter
pursuant to any SEC comments or policies), if any, and each Person who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) such underwriter (collectively, "HOLDER INDEMNITEES"), from and
against any and all losses, claims, damages, liabilities, expenses (including,
without limitation, costs of preparation and reasonable attorneys' fees and any
other reasonable fees or expenses incurred by such party in connection with any
investigation or Action), judgments, fines, penalties, charges and amounts paid
in settlement (collectively, "LOSSES"), as incurred, arising out of or based
upon (i) any untrue statement (or alleged untrue statement) of a material fact
contained in any applicable Registration Statement or any other offering
circular, amendment of or supplement to any of the foregoing or other document
incident to any such registration, qualification, or compliance, or 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, (ii) any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary or final Prospectus, any document incorporated by reference
therein or any Issuer Free Writing Prospectus, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
16
circumstances under which they were made, not misleading, and (iii) any
violation by the Company of any Law applicable in connection with any such
registration, qualification, or compliance; provided, that the Company will not
be liable to a Selling Holder or underwriter, as the case may be, in any such
case to the extent that any such Loss arises out of or is based on any untrue
statement or omission by such Selling Holder or underwriter, as the case may be,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such Registration Statement (or in
any preliminary or final Prospectus contained therein, any document incorporated
by reference therein or Issuer Free Writing Prospectus related thereto),
offering circular, amendment of or supplement to any of the foregoing or other
document in reliance upon and in conformity with written information furnished
to the Company by such Selling Holder or underwriter specifically for inclusion
in such document; and provided, further, that the Company will not be liable to
any Person who participates as an underwriter in any underwritten offering or
sale of Registrable Securities, or to any Person who is a selling Holder in any
non-underwritten offering or sale of Registrable Securities, or any other
Person, if any, who controls such underwriter or selling Holder within the
meaning of the Securities Act, under the indemnity agreement in this Section 2.7
with respect to any preliminary Prospectus or the final Prospectus (including
any amended or supplemented preliminary or final Prospectus), as the case may
be, to the extent that any such loss, claim, damage or liability of such
underwriter, selling Holder or controlling Person results from the fact that
such underwriter or selling Holder sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final Prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies thereof
to such underwriter or selling Holder and such final Prospectus, as then amended
or supplemented, has corrected any such misstatement or omission. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Holder Indemnitee or any other Holder and shall survive the
transfer of such securities. The foregoing indemnity agreement is in addition to
any liability that the Company may otherwise have to each Holder Indemnitee.
(b) Indemnification by Selling Holders. In connection with any
Registration Statement in which a Selling Holder is participating by registering
Registrable Securities, such Selling Holder agrees, severally and not jointly
with any other Person, to indemnify and hold harmless, to the fullest extent
permitted by Law, the Company, the officers and directors of the Company, and
each Person who controls (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) the Company, and each underwriter, if any,
and each Person who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) such underwriter (collectively, "COMPANY
INDEMNITEES"), from and against all Losses, as incurred, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such Registration Statement (or in any preliminary or final
Prospectus contained therein, any document incorporated by reference therein or
Issuer Free Writing Prospectus related thereto) or any other offering circular
or any amendment of or supplement to any of the foregoing or any other document
incident to such registration, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a final or preliminary Prospectus, in light
of the circumstances under which they were made) not misleading, in each case
solely to the extent that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement (or in any
preliminary or final Prospectus contained therein, any document incorporated by
17
reference therein or Issuer Free Writing Prospectus related thereto), offering
circular, or any amendment of or supplement to any of the foregoing or other
document in reliance upon and in conformity with written information furnished
to the Company by such Selling Holder expressly for inclusion in such document.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of its directors,
officers or controlling Persons. The Company may require as a condition to its
including Registrable Securities in any Registration Statement filed hereunder
that the holder thereof acknowledge its agreement to be bound by the provisions
of this Agreement (including Section 2.7) applicable to it.
(c) Conduct of Indemnification Proceedings. If any Person shall be
entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such indemnified party
shall give prompt notice to the party from which such indemnity is sought (the
"INDEMNIFYING PARTY") of any claim or of the commencement of any Action with
respect to which such indemnified party seeks indemnification or contribution
pursuant hereto; provided, however, that the delay or failure to so notify the
indemnifying party shall not relieve the indemnifying party from any obligation
or liability except to the extent that the indemnifying party has been actually
prejudiced by such delay or failure. The indemnifying party shall have the
right, exercisable by giving written notice to an indemnified party promptly
after the receipt of written notice from such indemnified party of such claim or
Action, to assume, at the indemnifying party's expense, the defense of any such
Action, with counsel reasonably satisfactory to such indemnified party;
provided, however, that an indemnified party shall have the right to employ
separate counsel in any such Action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless: (i) the indemnifying party agrees to pay such fees and
expenses; (ii) the indemnifying party fails promptly to assume, or in the event
of a conflict of interest cannot assume, the defense of such Action or fails to
employ counsel reasonably satisfactory to such indemnified party, in which case
the indemnified party shall also have the right to employ counsel and to assume
the defense of such Action; or (iii) in the indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such Action; provided, further, however, that
the indemnifying party shall not, in connection with any one such Action or
separate but substantially similar or related Actions in the same jurisdiction,
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one firm of attorneys (together with appropriate
local counsel) at any time for all of the indemnified parties, or for fees and
expenses that are not reasonable. Whether or not such defense is assumed by the
indemnifying party, such indemnified party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld or delayed). The indemnifying party shall not consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by all claimants or plaintiffs to such
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such claim or
litigation.
(d) Contribution.
(i) If the indemnification provided for in this Section 2.7 is
unavailable to an indemnified party in respect of any Losses (other than in
accordance with its terms), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
18
payable by such indemnified party as a result of such Losses, in such proportion
as is appropriate to reflect the relative fault of the indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, 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 taken by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
(iii) 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.
(iv) The obligation of any Selling Holder obliged to make
contribution pursuant to this Section 2.7(d) shall be several and not joint.
(e) Additional Provisions.
(i) Notwithstanding anything to the contrary contained in this
Agreement, an indemnifying party that is a Holder shall not be required to
indemnify or contribute any amount in excess of the amount by which the net
proceeds from the sale of the Registrable Securities sold by such Holder in the
applicable offering exceeds the amount of any damages that such Holder has
otherwise been required to pay pursuant to Section 2.7(b).
(ii) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director, manager, partner or
controlling Person of such indemnified party and shall survive the Transfer of
securities.
(iii) The indemnification and contribution required by this
Section 2.7 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or Loss
is incurred.
(iv) To the extent that any of the Selling Holders is, or would
be expected to be, deemed to be an underwriter of Registrable Securities
pursuant to any SEC comments or policies or any court of law or otherwise, the
Company agrees that (i) the indemnification and contribution provisions
contained in this Section 2.7 shall be applicable to the benefit of the Selling
Holders in their role as deemed underwriter in addition to their capacity as a
Selling Holder (so long as the amount for which any other Selling Holder is or
becomes responsible does not exceed the amount for which such Selling Holder
would be responsible if the Selling Holder were not deemed to be an underwriter
of Registrable Securities) and (ii) the Selling Holders and their
19
representatives shall be entitled to conduct the due diligence which they would
normally conduct in connection with an offering of securities registered under
the Securities Act, including receipt of customary opinions and comfort letters.
Section 2.8. Rule 144; Rule 144A. The Company covenants that it will
timely file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 or Rule 144A under the Securities
Act or any similar rules or regulations hereafter adopted by the SEC), and it
will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 or Rule 144A or Regulation S under
the Securities Act, as such rules may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements and, if not, the specifics
thereof.
Section 2.9. Underwritten Registrations. (a) If any offering of
Registrable Securities pursuant to any Demand Registration or shelf registration
is an underwritten offering, the Holders' Representative shall have the right to
select the investment banker or investment bankers and managers to administer
the offering, subject to approval by the Company, not to be unreasonably
withheld or delayed, which investment banker or investment bankers and managers
may be an Affiliate of any of the Investors. The Company shall have the right to
select the investment banker or investment bankers and managers to administer
any incidental or Piggyback Registration.
(b) No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell the Registrable Securities or
Other Securities it desires to have covered by the registration on the basis
provided in any underwriting arrangements in customary form (including pursuant
to the terms of any over-allotment or "green shoe" option requested by the
managing underwriter, provided that no such person will be required to sell more
than the number of Registrable Securities that such Person 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 required under the terms of such underwriting arrangements,
provided that such Person (other than the Company) shall not be required to make
any representations or warranties other than those related to title and
ownership of shares and as to the accuracy and completeness of statements made
in a Registration Statement, Prospectus, offering circular, or other document in
reliance upon and in conformity with written information furnished to the
Company or the managing underwriter(s) by such Person and provided further, that
such Person's (other than the Company's) liability in respect of such
representations and warranties shall not exceed such Person's net proceeds from
the offering.
Section 2.10. Registration Expenses. The Company shall pay all
reasonable documented expenses incident to the Company's performance of or
compliance with its obligations under this Article II, including, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the SEC,
20
all applicable securities exchanges and/or the National Association of
Securities Dealers, Inc. and (B) of compliance with securities or Blue Sky laws
including any fees and disbursements of counsel for the underwriter(s) in
connection with Blue Sky qualifications of the Registrable Securities pursuant
to Section 2.4(h)), (ii) printing expenses (including expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriter(s), if any, or by the
Holders of a majority of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone and delivery expenses of the Company,
(iv) fees and disbursements of counsel for the Company, (v) expenses of the
Company incurred in connection with any road show, and (vi) fees and
disbursements of all independent certified public accountants (including,
without limitation, the expenses of any "cold comfort" letters required by this
Agreement) and any other Persons, including special experts retained by the
Company. For the avoidance of doubt, the Company shall pay the fees and
disbursements of one firm of counsel for the Holders in connection with each
registration under Article II, but the Company shall not pay any underwriting
discounts attributable to sales by Holders of Registrable Securities. In
addition, the Company shall bear all of its internal expenses (including all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange on which similar securities issued by the Company are
then listed and rating agency fees and the fees and expenses of any Person,
including special experts, retained by the Company.
ARTICLE III
MISCELLANEOUS
Section 3.1. Other Activities; Nature of Holder Obligations. (a)
Notwithstanding anything in this Agreement, none of the provisions of this
Agreement shall in any way limit an Investor or any of its Affiliates from
engaging in any brokerage, investment advisory, financial advisory, anti-raid
advisory, principaling, merger advisory, financing, asset management, trading,
market making, arbitrage, investment activity and other similar activities
conducted in the ordinary course of their business. Notwithstanding anything
herein to the contrary, the restrictions contained in this Agreement shall not
apply to Common Stock or any other equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
acquired by an Investor or any of its Affiliates following the effective date of
the first Registration Statement of the Company covering Common Stock (or other
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities) to be sold on behalf of the
Company in an underwritten public offering.
(b) Nature of Holders' Obligations. The obligations of each Holder
under this Agreement are several and not joint with the obligations of any other
Holder, and no Holder shall be responsible in any way for the performance of the
obligations of any other Holder under this Agreement. Nothing contained herein,
and no action taken by any Holder pursuant hereto or in connection herewith,
shall be deemed to constitute the Holders as a partnership, a joint venture or
any other kind of entity, or create a presumption that the Holders are in any
way acting in concert or as a group with respect to such obligations or any of
the transactions contemplated by this Agreement.
21
Section 3.2. Adjustments Affecting Registrable Securities. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of any Holder of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement.
Section 3.3. Other Registration Rights Agreements. Until after the
third Demand Registration, the Company shall not enter into any agreement with
respect to any equity securities that grants or provides holders of such
securities with registration rights that have terms more favorable than the
registration rights granted to Holders of the Registrable Securities in this
Agreement unless similar rights are granted to Holders of Registrable
Securities.
Section 3.4. Conflicting Agreements. Each party represents and warrants
that it has not granted and is not a party to any proxy, voting trust or other
agreement that is inconsistent with or conflicts with any provision of this
Agreement.
Section 3.5. Termination. This Agreement shall terminate upon the later
of such time as there are no Registrable Securities and the fifteenth
anniversary of the Closing, except for the provisions of Sections 2.7, 2.8, 2.10
and this Article III, which shall survive such termination.
Section 3.6. Amendment and Waiver. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or any Holder unless such modification, amendment
or waiver is approved in writing by the Company, the THL Representative, and the
GS Representative; provided that the written consent of the Company and the
Investors shall be sufficient in order to effect a modification, amendment or
waiver of any provision of this Agreement which (i) affects only the rights of
the Company or the Investors or (ii) does not adversely affect the rights of any
party hereto other than the Investors. Any party hereto may waive any right of
such party hereunder by an instrument in writing signed by such party and
delivered to the other parties. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
Section 3.7. Severability. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
Section 3.8. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement, the Purchase Agreement, and the Subscription Agreement,
together with the several agreements and other documents and instruments
referred to herein or therein or annexed hereto or thereto, embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, that may have related
to the subject matter hereof in any way.
22
Section 3.9. Successors and Assigns. Neither this Agreement nor any
right or obligation hereunder is assignable in whole or in part by any party
without the prior written consent of the other party hereto, provided that an
Investor may transfer its rights and obligations hereunder (in whole or in part)
to any Transferee (and any Transferee may transfer such rights and obligations
to any subsequent Transferee) without the prior written consent of the Company.
Any such assignment shall be effective upon receipt by the Company of (x)
written notice from the transferring Holder stating the name and address of any
Transferee and identifying the number of shares of Registrable Securities with
respect to which the rights under this Agreement are being transferred and the
nature of the rights so transferred and (y) a written agreement in substantially
the form attached as Exhibit A hereto from such Transferee to be bound by the
applicable terms of this Agreement. Any such transfer shall be without prejudice
to Section 3.3. Any action taken by Holders' Representative shall not become
void or ineffective as a result of a subsequent change in the identity of the
Holders' Representative.
Section 3.10. Counterparts; Execution by Facsimile Signature. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument. This
Agreement may be executed by facsimile signature(s).
Section 3.11. Remedies. (a) Each party hereto acknowledges that
monetary damages would not be an adequate remedy in the event that any of the
covenants or agreements in this Agreement is not performed in accordance with
its terms, and it is therefore agreed that, in addition to and without limiting
any other remedy or right it may have, the non-breaching party will have the
right to an injunction, temporary restraining order or other equitable relief in
any court of competent jurisdiction enjoining any such breach or threatened
breach and enforcing specifically the terms and provisions hereof. Each party
hereto agrees not to oppose the granting of such relief in the event a court
determines that such a breach has occurred, and to waive any requirement for the
securing or posting of any bond in connection with such remedy.
(b) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 3.12. Notices. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed facsimile if
sent during normal business hours of the recipient, if not, then on the next
Business Day or (iii) one Business Day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the addresses set
forth below or such other address or facsimile number as a party may from time
to time specify by notice to the other parties hereto:
If to the Company:
MoneyGram International Inc.
0000 Xxxxx Xxxxxx Xxxxx, XX 8020
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
23
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
If to any Investor set forth on Schedule I hereto under the heading
"THL Investors", to it:
c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx
with copies (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Xxxxxx Xxxx
Fax: (000) 000-0000
If to any Investor set forth on Schedule I hereto under the heading "GS
Investors", to it:
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Xxxxx Xxxx
Fax: (000) 000-0000
24
Section 3.13. Governing Law; Consent to Jurisdiction. (a) This
Agreement shall be governed in all respects by the laws of the State of New
York.
(b) Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal or state court located in the Borough of
Manhattan in the City of New York, New York in the event any dispute arises out
of this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any Action relating to this Agreement in
any court other than a Federal or state court located in the Borough of
Manhattan in the City of New York, New York.
(c) Each of the parties hereto hereby irrevocably and unconditionally
waives trial by jury in any legal Action or proceeding in relation to this
Agreement and for any counterclaim therein.
25
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
MONEYGRAM INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
26
XXXXXX X. XXX EQUITY FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC,
its general partner
By: XXXXXX X. XXX PARTNERS, L.P.,
its sole member
By: XXXXXX X. XXX ADVISORS, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX X. XXX PARALLEL FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC
its general partner
By: XXXXXX X. XXX PARTNERS, L.P.,
its sole member
By: XXXXXX X. XXX ADVISORS, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX X. XXX PARALLEL (DT) FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC
its general partner
By: XXXXXX X. XXX PARTNERS, L.P.,
its sole member
By: XXXXXX X. XXX ADVISORS, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
[Signature Page to Registration Rights Agreement]
GS CAPITAL PARTNERS VI FUND, L.P.
By: GSCP VI Advisors, L.L.C., its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
By: GSCP VI Offshore Advisors, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI GMBH & CO. KG
By: GS Advisors VI, L.L.C.,
its Managing Limited Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI PARALLEL, L.P.
By: GS Advisors VI, L.L.C., its General Partner
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
[Signature Page to Registration Rights Agreement]
GSMP V ONSHORE US, LTD.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
GSMP V OFFSHORE US, LTD.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
GSMP V INSTITUTIONAL US, LTD.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director and Vice President
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Attorney-in-Fact
[Signature Page to Registration Rights Agreement]
SCHEDULE I
THL INVESTORS:
XXXXXX X. XXX EQUITY FUND VI, L.P.
XXXXXX X. XXX PARALLEL FUND VI, L.P.
XXXXXX X. XXX PARALLEL (DT) FUND VI, L.P.
GS INVESTORS:
GS CAPITAL PARTNERS VI FUND, L.P.
GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
GS CAPITAL PARTNERS VI GmbH & Co. KG
GS CAPITAL PARTNERS VI PARALLEL, L.P.
GSMP V ONSHORE US, LTD.
GSMP V OFFSHORE US, LTD.
GSMP V INSTITUTIONAL US, LTD.
GS GROUP INVESTOR:
THE XXXXXXX XXXXX GROUP, INC.
[EXHIBIT A]
[Company]
[Address]
Attention: General Counsel
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement, dated as of
[Date] (the "Agreement"). Capitalized terms used and not otherwise defined
herein are used herein as defined in the Agreement. The undersigned
("TRANSFEREE") hereby: (i) acknowledges receipt of a copy of the Agreement; (ii)
notifies the Company that, on [Date], Transferee acquired from [insert name of
assigning Holder] (pursuant to a private transfer that was exempt from the
registration requirements under the Securities Act) [describe the Registrable
Securities that were transferred] (the "TRANSFERRED SECURITIES") and an
assignment of such transferor's rights under the Agreement with respect and to
the Transferred Securities, and the Transferee has assumed from such transferor
the liability of the transferor in respect of any and all obligations under the
Agreement related to the Transferred Securities; and (iii) agrees to be bound by
all terms of the Agreement with respect to the Transferred Securities applicable
to a Holder of such Transferred Securities as if the Transferee was an original
signatory to the Agreement. Notices to the Transferee for purposes of the
Agreement may be addressed to: [-], [-], Attn: [-], Fax: [-]. This document
shall be governed by, and construed in accordance with, the laws of the State of
New York, applicable to contracts executed in and to be performed entirely
within that State.
[Transferee]
[By:]
------------------------
Name:
[Title:]
cc: [Transferor]
