Exhibit 10.10
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
dated March 1, 2002, among THE
PROVIDENCE SERVICE CORPORATION,
a Delaware corporation (the
"Corporation"), and the INVESTORS
(as herein defined).
The Investors own or have the right to purchase or otherwise acquire
shares of the Common Stock (as hereinafter defined) of the Corporation. The
Corporation and the Investors deem it to be in their respective best interests
to set forth the rights of the Investors in connection with public offerings and
sales of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Corporation and the Investors hereby
agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
"Camelot Stockholders" shall have the meaning ascribed to such term in
the Stockholders' Agreement.
"Class A Common Stock" means the Class A Common Stock, $.001 par value
per share, of the Corporation.
"Class B Common Stock" means the Class B Common Stock, $.00l par value
per share, of the Corporation.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means collectively, the Class A Common Stock and the
Class B Common Stock.
"Eos I" means Eos Partners SBIC, L.P.
"Eos II" means Eos Partners SBIC II, L.P.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Xxxxxx Warrant Purchase Agreements" means the Warrant Purchase
Agreements, dated as of July 26, 2000 and as of the date hereof, by and between
the Corporation and Xxxxxx
Financial Leasing, Inc., as amended.
"Investors" means, collectively, the Persons set forth on Schedule I
and each additional Person who shall execute a counterpart signature page
hereto, and includes any successor to, or assignee or transferee of, any such
Person who or which agrees in writing to be treated as an Investor hereunder and
to be bound by the terms and comply with all applicable provisions hereof.
"Other Shares" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
"Petra/Harbinger Stockholders" shall have the meaning ascribed to such
term in the Stockholders' Agreement.
"Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Primary Shares" means at any time the authorized but unissued shares
of Common Stock and shares of Common Stock held by the Corporation in its
treasury.
"Registrable Shares" means Restricted Shares that constitute Common
Stock.
"Restricted Shares" means shares of Common Stock held or issuable upon
the conversion of shares of Series A Preferred, Series B Preferred, Series C
Preferred, Series D. Preferred, or any other options, warrants or other rights
to purchase any Common Stock held by the Investors. As to any particular
Restricted Shares, once issued, such Restricted Shares shall cease to be
Restricted Shares when (i) they have been registered under the Securities Act,
the registration statement in connection therewith has been declared effective
and they have been disposed of pursuant to such effective registration
statement, (ii) they are eligible to be sold or distributed pursuant to Rule 144
within any consecutive three month period (including, without limitation, Rule
144(k)) without volume limitations, or (iii) they shall have ceased to be
outstanding. For greater certainty, the Corporation shall not be required to
effect any registration of any shares of preferred stock, any warrants, options
or other rights to purchase Common Stock or any promissory notes or other
indebtedness and Investors holding shares of Series E Preferred Stock (or
warrants therefor) shall not have any rights under this Agreement with regard to
such shares of Series E Preferred Stock (or warrants therefor).
"Registration Date" means the date upon which the registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule 144A).
"Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and
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the rules and regulations of the Commission thereunder, all as the same shall be
in effect from time to time.
"Securities Purchase Agreements" means the Securities Purchase
Agreements dated November 26, 1997, October 14, 1998, and December 6, 1999,
respectively, among the Corporation, Eos I and Eos II.
"Series A Preferred" means the Series A Convertible Preferred Stock,
$.001 par value per share, of the Corporation, issued to Eos I pursuant to the
Securities Purchase Agreement dated November 26, 1997.
"Series B Preferred" means the Series B Convertible Preferred Stock,
$.001 par value per share, of the Corporation, issued to the Eos I pursuant to
the Securities Purchase Agreement dated October 14, 1998.
"Series C Preferred" means the Series C Convertible Preferred Stock,
$.001 par value per share, of the Corporation, issued to Los II pursuant to the
Securities Purchase Agreement dated December 6, 1999.
"Series D Preferred" means the Series D Convertible Preferred Stock,
$.001 par value per share, of the Corporation, issued to Eos II pursuant to the
Securities Purchase Agreement dated December 6, 1999.
"Stockholders' Agreement" means the Amended and Restated Stockholders'
Agreement, dated as of the date hereof, among the Corporation and certain of its
stockholders, as the same may be amended, restated, supplemented or otherwise
modified.
Section 2. Required Registration. On any date after 180 days following
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the Registration Date, if the Corporation shall be requested by the holders
(other than Camelot Stockholders) of at least thirty percent (30%) (on a Common
Stock equivalent basis) of the Restricted Shares then outstanding to effect the
registration under the Securities Act of Registrable Shares, the Corporation
shall promptly use its best efforts to effect the registration under the
Securities Act of the Registrable Shares which the Corporation has been so
requested to register; provided, however, that the Corporation shall not be
obligated to effect any registration under the Securities Act except in
accordance with the following provisions:
(a) the Corporation shall not be obligated to use its best
efforts to file and cause to become effective (i) more than two
registration statements initiated pursuant to this Section 2 under
which a substantial portion of the Registrable Shares requested to be
included therein have been effectively sold thereunder, (ii) any
registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days or
(iii) any registration statement initiated pursuant to this Section 2
unless such registration statement relates to
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Registrable Shares having a minimum aggregate offering price of
$10,000,000 (based on the then current market price or fair value of
the Common Stock);
(b) the Corporation may delay the filing or effectiveness of
any registration statement for a period of up to 90 days after the
date of a request for registration pursuant to this Section 2 if at
the time of such request (i) the Corporation is engaged, or has fixed
plans to engage within 90 days of the time of such request, in a firm
commitment underwritten public offering of Primary Shares in which the
holders of Registrable Shares may include Registrable Shares pursuant
to Section 3 or (ii) the Corporation reasonably determines that such
registration and offering would interfere with any material
transaction involving the Corporation, as approved by the Board of
Directors, provided that the Corporation may only so delay the filing
or effectiveness of a registration statement once pursuant to clause
(i) above and once pursuant to clause (ii) above; and
(c) with respect to any registration pursuant to this
Section 2, the Corporation shall give notice of such registration to
the Investors who do not request registration hereunder and to the
holders of all Other Shares which are entitled to registration rights
and the Corporation may include in such registration any Primary
Shares or Other Shares; provided, however, that if the managing
underwriter advises the Corporation that the inclusion of all
Registrable Shares, Primary Shares and/or Other Shares proposed to be
included in such registration would interfere with the successful
marketing (including pricing) of the Registrable Shares proposed to be
included in such registration, then the number of Registrable Shares,
Primary Shares and/or Other Shares proposed to be included in such
registration shall be included in the following order:
(i) first, the Registrable Shares requested to be
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included in such registration pursuant to the demand right
above and the Registrable Securities (as defined in the
Xxxxxx Warrant Purchase Agreements) requested to be included
in such registration (or, if necessary, such Registrable
Shares and Registrable Securities among the holders thereof
based upon the number of Registrable Shares and Registrable
Securities requested to be registered by each such holder);
(ii) second, the Primary Shares; and
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(iii) third, the Other Shares that are entitled to
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registration rights and any Registrable Shares held by the
Camelot Stockholders and the Petra/Harbinger Stockholders
that are entitled to registration rights (or, if necessary,
such Registrable Shares and Other Shares pro rata among the
holders thereof based upon the number of such Registrable
Shares and Other Shares requested to be registered by each
such holder).
(d) If the method of disposition requested by the holders,
pursuant to this Section 2, is an underwritten public offering, the
majority of the holders of Registrable Shares to be included therein
shall have the right to designate the managing underwriter of such
offering, which underwriter shall be a top 15 investment bank as rated
by
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Securities Data Corp. at the time of the request.
(e) At any time before the registration statement covering
such Registrable Shares becomes effective, the holders of a majority
of such Registrable Shares, may request the Corporation to withdraw or
not to file the registration statement. In that event, if such request
of withdrawal shall not have been caused by, or made in response to,
the material adverse effect of an event on the business, properties,
condition, financial or otherwise, or operations of the Corporation,
such holders shall have used one of their demand registration rights
under this Section 2 and the Corporation shall no longer be obligated
to register Registrable Shares pursuant to the exercise of such one
registration right pursuant to this Section 2 unless the remaining
holders shall pay to the Corporation the expenses incurred by the
Corporation through the date of such request.
Section 3. Piggyback Registration. If the Corporation at any time
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proposes for any reason to register Primary Shares or Other Shares under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give written
notice to the Investors of its intention to so register such Primary Shares or
Other Shares and, upon the written request, delivered to the Corporation within
30 days after delivery of any such notice by the Corporation, of the Investors
to include in such registration Registrable Shares (which request shall specify
the number of Registrable Shares proposed to be included in such registration),
the Corporation shall use its best efforts to cause all such Registrable Shares
to be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration; provided however, that if
the managing underwriter advises the Corporation that the inclusion of all
Registrable Shares requested to be included in such registration would interfere
with the successful marketing (including pricing) of the Primary Shares or Other
Shares proposed to be registered by the Corporation, then the number of Primary
Shares, Registrable Shares and Other Shares proposed to be included in such
registration shall be included in the following order:
(a) if the Corporation proposes to register Primary Shares:
(i) first, the Primary Shares; and
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(ii) second, the Registrable Shares and Other
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Shares requested to be included in such registration
(or, if necessary, such Registrable Shares and Other Shares
pro rata among the holders thereof based upon the number of
Registrable Shares and Other Shares requested to be
registered by each such holder); or
(b) if the Corporation proposes to register Other Shares
pursuant to a request for registration by the holders of such Other
Shares:
(i) first, the Other Shares held by the parties
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demanding such registration;
(ii) second, the Registrable Shares and Other
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Shares (other than shares
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registered pursuant to Section 3(b)(i) hereof) requested to
be registered by the holders hereof (or, if necessary, pro
rata among the holders thereof based on the number of
Registrable Shares and Other Shares requested to be
registered by such holders); and
(iii) third, the Primary Shares.
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Section 4. Registrations on Form S-3. Anything contained in Section 2
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to the contrary notwithstanding, at such time as the Corporation shall have
qualified for the use of Form S-3 promulgated under the Securities Act or any
successor form thereto, the holders of at least twenty-five percent (25%) of the
Registrable Shares then outstanding, shall have the right to request in writing
two registrations per twelve month period thereafter on Form S-3 or such
successor form of Registrable Shares, which request or requests shall (i)
specify `the number of Registrable Shares intended to be sold or disposed of and
the holders thereof, (ii) state the intended method of disposition of such
Registrable Shares and (iii) relate to Registrable Shares having anticipated net
proceeds of at least $3,000,000. A requested registration on Form S-3 or any
such successor form in compliance with this Section 4 shall not count as a
registration statement initiated pursuant to Section 2 but shall otherwise be
treated as a registration initiated pursuant to, and shall, except as otherwise
expressly provided in this Section 4, be subject to Section 2.
Section 5. Holdback Agreement. If the Corporation at any time shall
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register shares of Common Stock under the Securities Act (including any
registration pursuant to Sections 2, 3 or 4 hereof) for sale to the public, the
Investors shall not sell publicly, make any short sale of, grant any option for
the purchase of, or otherwise dispose publicly of, any Registrable Shares (other
than those shares of Common Stock included in such registration pursuant to
Sections 2, 3 or 4 hereof) without the prior written consent of the Corporation,
for a period designated by the Corporation in writing to the Investors, which
period shall begin not more than 10 days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall not last more than 90 days after the effective date of such registration
statement. The Corporation' shall obtain the agreement of any person permitted
to sell shares of stock in a registration to be bound by and to comply with this
Section 5 as if such person was an Investor hereunder.
Section 6. Preparation and Filing. If and whenever the Corporation is
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under an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Corporation
shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 90 days or until all of such Registrable Shares have
been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement
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that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration
statement or prospectus, to one counsel selected by the Investors (the
"Investors' Counsel"), copies of all such documents proposed to be
filed (it being understood that such five-business-day period need not
apply to successive drafts of the same document proposed to be filed
so long as such successive drafts are supplied to the Investors'
Counsel in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 90 days or until all of
such Registrable Shares have been disposed of (if earlier) and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of such Registrable Shares;
(d) notify in writing the Investors' Counsel promptly (i) of
the receipt by the Corporation of any notification with respect to any
comments by the Commission with respect to such registration statement
or prospectus or any amendment or supplement thereto or any request by
the Commission for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the receipt by
the Corporation of any notification with respect to the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that
purpose and (iii) of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of
such Registrable Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the Investors reasonably request and do any and
all other acts and things which may be reasonably necessary or
advisable to enable the Investors to consummate the disposition in
such jurisdictions of the Registrable Shares owned by the Investors;
provided, however, that the Corporation will not be required to
qualify generally to do business, subject itself to general taxation
or consent to general service of process in any jurisdiction where it
would not otherwise be required to do so but for this paragraph (e) or
to provide any material undertaking or make any changes in its By-laws
or Certificate of Incorporation which the Board of Directors
determines to be contrary to the best interests of the Corporation;
(f) furnish to the Investors holding such Registrable Shares
such number of copies of a summary prospectus, if any, or other
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such
Investors may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with
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or approved by such other governmental agencies or authorities as may
be necessary by virtue of the business and operations of the
Corporation to enable the Investors holding such Registrable Shares to
consummate the disposition of such Registrable Shares;
(h) notify the Investors holding such Registrable Shares on
a timely basis at any time when a prospectus relating to such
Registrable Shares is required to be delivered under the Securities
Act within the appropriate period mentioned in subparagraph (a) of
this Section 6, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of the Investors, prepare and furnish to
such Investors a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the offerees of such shares, such prospectus
shall not include an untrue statement of a material fact Or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(i) subject to the execution of confidentiality agreements
in form and substance satisfactory to the Corporation, make available
upon reasonable notice and during normal business hours, for
inspection by the Investors holding such Registrable Shares, any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by the Investors or underwriter (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Corporation (collectively,
the "Records"), as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all
information (together with the Records, the "Information") reasonably
requested by any such Inspector in connection with such registration
statement. Any of the Information which the Corporation determines in
good faith to be confidential, and of which determination the
Inspectors are so notified, shall not be disclosed by the Inspectors
unless (i) the disclosure of such Information is necessary to avoid or
correct a misstatement or omission in the registration statement, (ii)
the release of such Information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or (iii) such
Information has been made generally available to the public; the
Investors agree that they will, upon learning that disclosure of such
Information is sought in a court of competent jurisdiction, give
notice to the Corporation and allow the Corporation, at the
Corporation's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form
and at customary times and covering matters of the type customarily
covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an
opinion or opinions in
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customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Corporation) for such Registrable
Shares;
(m) issue to any underwriter to which the Investors holding
such Registrable Shares may sell shares in such offering, certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for inclusion on the
automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD"), or such other national securities exchange
as the holders of a majority of such Registrable Shares shall
reasonably request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary
to effect the registration of such Registrable Shares contemplated
hereby.
Each holder of the Registrable Shares, upon receipt of any notice from
the Corporation of any event of the kind described in Section 6(h) hereof, shall
forthwith discontinue disposition of the Registrable Shares pursuant to the
registration statement covering such Registrable Shares until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(h) hereof, and, if so directed by the Corporation, such holder shall
deliver to the Corporation all copies, other than permanent file copies then in
such holder's possession, of the prospectus covering such Registrable Shares at
the time of receipt of such notice.
Section 7. Expenses. All expenses (other than underwriting discounts
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and commissions relating to the Registrable Shares, as provided in the last
sentence of this Section 7) incurred by the Corporation in complying with
Section 6, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Corporation's counsel and accountants and reasonable fees and
expenses of the Investors' Counsel, shall be paid by the Corporation; provided,
however, that all underwriting discounts and selling commissions applicable to
the Registrable Shares and Other Shares shall be borne by the holders selling
such Registrable Shares and Other Shares, in proportion to the number of
Registrable Shares and Other Shares sold by each such holder.
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Section 8. Indemnification.
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(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless the holders of
Registrable Shares, each underwriter, broker or any other person
acting on behalf of the holders of Registrable Shares and each other
person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to
which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or allegedly untrue statement of a
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of
any Registrable Shares, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading or, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or any violation by the Corporation of the
Securities Act or state securities or blue sky laws applicable to the
Corporation and relating to action or inaction required of the
Corporation in connection with such registration or qualification
under such state securities or blue sky laws; and shall reimburse the
holders of Registrable Shares, such underwriter, such broker or such
other person acting on behalf of the holders of Registrable Shares and
each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Corporation shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action
(including any legal or other expenses incurred) arises out of or is
based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment, supplement or
document incident to registration or qualification of any Registrable
Shares in reliance upon and in conformity with written information
furnished to the Corporation through an instrument duly executed by
the holders of Registrable Shares or their counsel or underwriter
specifically for use in the preparation thereof; provided further,
however, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement,
allegedly untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the final
prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of any Investor,
underwriter, broker or other person acting on behalf of holders of the
Restricted Shares from whom the person asserting any loss, claim,
damage, liability or expense purchased the Restricted Shares which are
the subject thereof, if a copy of such final prospectus had been made
available to such person and such Investor, underwriter, broker or
other person acting on behalf of holders of the Registrable Shares and
such final prospectus was not delivered to such
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person with or prior to the written confirmation of the sale of such
Registrable Shares to such person.
(b) In connection with any registration of Registrable
Shares under the Securities Act pursuant to this Agreement, each
holder of Registrable Shares shall severally and not jointly indemnify
and hold harmless (in the same manner and to the same extent as set
forth in the preceding paragraph of this Section 8) the Corporation,
each director of the Corporation, each officer of the Corporation who
shall sign such registration statement, each underwriter, broker or
other person acting on behalf of the holders of Registrable Shares and
each person who controls any of the foregoing persons within the
meaning of the Securities Act with respect to any statement or
omission from such registration statement, any preliminary prospectus
or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares,
if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Corporation or
such underwriter specifically for use in connection with the
preparation of such registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document; provided,
however, that the maximum amount of liability in respect of such
indemnification shall be limited, in the case of each seller of
Registrable Shares, to an amount equal to the net proceeds actually
received by such seller from the sale of Registrable Shares effected
pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 8, such indemnified party will,
if a claim in respect thereof is made against an indemnifying party,
give written notice to the latter of the commencement of such action.
In case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof;
provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or
conflict with those available to the indemnifying party, or that such
claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section
8, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such
indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees
and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement
provided in this Section 8.
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(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability
or action referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such
loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the `one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
Section 9. Underwriting Agreement. Notwithstanding the provisions of
----------------------
Sections 5, 6, 7 and 8, to the extent that the Investors shall enter into an
underwriting or similar agreement, which agreement contains provisions covering
one or more issues addressed in such Sections, the provisions contained in such
agreement addressing such issue or issues shall control; provided, however, that
any such agreement to which the Corporation is not a party shall not be binding
upon the Corporation.
Section 10. Information by Holder. The Investors shall furnish to the
---------------------
Corporation such written information regarding the Investors and the
distribution proposed by the Investors as the Corporation may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
Section 11. Exchange Act Compliance. From the Registration Date or
-----------------------
such earlier date as a registration statement filed by the Corporation pursuant
to the Exchange Act relating to any class of the Corporation's securities shall
have become effective, the Corporation shall comply with all of the reporting
requirements of the Exchange Act applicable to it (whether or not it shall be
required to do so, but specifically excluding Section 14 of the Exchange Act if
not then applicable to the Corporation) and shall comply with all other public
information reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The Corporation shall
cooperate with the Investors in supplying such information as may be necessary
for the Investors to complete and file any information reporting forms presently
or hereafter required by the Commission as a condition to the availability of
Rule 144.
Section 12. No Conflict of Rights. The Corporation shall not, after
---------------------
the date hereof, grant any registration rights which conflict with or impair the
registration rights granted hereby.
12
Section 13. Termination. This Agreement shall terminate and be of no
-----------
further force or effect when there, shall no longer be any Registrable Shares
outstanding.
Section 14. Successors and Assigns. This Agreement shall bind and
----------------------
inure to the benefit of the Corporation and the Investors and, subject to
Section 15, the respective successors and assigns of the Corporation and the
Investors.
Section 15. Assignment. Each Investor may assign its rights hereunder
----------
to any purchaser or transferee of Registrable Shares; provided, however, that
such purchaser or transferee shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as an Investor whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement as if such purchaser or transferee was originally included in the
definition of an Investor herein and had originally been a party hereto.
Section 16. Entire Agreement. This Agreement, the Securities Purchase
----------------
Agreements, and the Stockholders' Agreement, and the other writings referred to
herein or therein or delivered pursuant hereto or thereto, contain the entire
agreement among the Investors and the Company with respect to the subject matter
hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
Section 17. Notices. All notices, requests, consents and other
-------
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation, to:
The Providence Service Corporation
000 Xxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx XxXxxxxx;
with a copy to:
X'Xxxxxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
13
Attention: flan S. Nissan, Esq.; and
(ii) if to the Investors, to their respective addresses set
forth on Schedule I hereto.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
Section 18. Modifications; Amendments; Waivers. The terms and
----------------------------------
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Corporation and
Investors holding in excess of 50% or more of the Restricted Shares; provided,
however, that (i) any such modification, amendment or waiver that would
materially adversely affect the Petra/Harbinger Stockholders, as a class, or the
Camelot Stockholders, as a class, without similarly affecting the rights
hereunder of all Stockholders, shall not be effective without the prior written
consent of 50% or more of the Restricted Shares held by the Petra/Harbinger
Stockholders or Camelot Stockholders, as the case may be.
Section 19. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement. Facsimile counterpart signatures to this Agreement
shall be acceptable.
Section 20. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
Section 21. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement on the date first written above.
THE PROVIDENCE SERVICE
CORPORATION
By: /s/ Xxxxxxxx XxXxxxxx
------------------------
Name: Xxxxxxxx XxXxxxxx
Title: CEO
14
EOS PARTNERS SBIC II, L.P.
By: EOS SBIC GENERAL II, L.P.,
its General Partner
By: EOS SBIC II, INC.,
its General Partner
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Chairman
EOS PARTNERS SBIC, L.P.
By: EOS SBIC GENERAL, L.P.,
its General Partner
By: EOS SBIC, INC.,
its General Partner
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Chairman
PETRA MEZZANINE FUND, L.P.
By: PETRA PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxx X. X'Xxxxx, III
--------------------------
Name: Xxxxxx X. X'Xxxxx, III
Title: Managing Member
15
HARBINGER MEZZANINE PARTNERS, L.P.
By: HARBINGER MEZZANINE GP, LLC,
its General Partner
By: Harbinger Mezzanine Manager, Inc.,
its Manager
By: /s/ Xxxxx Xxx
------------------------
Name: Xxxxx Xxx
Title: Director
/s/ Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx, JTWROS
-----------------------------------------------
Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx, JTWROS
/s/ Xxxxx Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
XXXXXXXX FAMILY TRUST
u/a June 26, 1996
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Trustee
/s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X Xxxxxxxx
XXXXX XXXXXXX FAMILY TRUST
Dated November 17, 1995
/s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
16
XXXXX X. XXXXXX FAMILY TRUST
Dated November 23, 1987, as amended
/s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
XXXXXXX X. XXXXXX FAMILY TRUST
Dated November 23, 1987, as ended
/s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
/s/ Xxxx X. Xxxxxxx
------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx XxxXxxxxxx
------------------------
Xxxx XxxXxxxxxx
/s/ Xxxxxxx X. XxXxxxxxxx
-------------------------
Xxxxxxx X. XxXxxxxxxx
17
