Exhibit 4.1
MSN HOLDINGS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 26, 2001,
among the investors listed on Schedule I hereto (the "Investors") and MSN
Holdings, Inc., a Delaware corporation (the "Company").
R E C I T A L S
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WHEREAS, pursuant to the terms of the Agreement and Plan of
Merger, dated as of August 20, 2001 (the "Merger Agreement"), and the Voting,
Sale and Retention Agreement, dated as of August 20, 2001 (the "Voting
Agreement"), each among Warburg Pincus Private Equity VIII, L.P., a Delaware
limited partnership ("Warburg"), MSN Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of Warburg ("Acquisition"), the Company and certain
of the Company's principal stockholders, Acquisition will merge with and into
the Company with the Company as the surviving corporation (the "Merger");
WHEREAS, pursuant to the terms of a Subscription and Note
Purchase Agreement with the Company dated as of even date herewith (the
"Subscription Agreement"), certain of the Investors have agreed to purchase (i)
shares of Common Stock, par value $0.01 per share, of the Company (the "Common
Stock"), (ii) shares of Series I Convertible Preferred Stock, par value $0.01
per share, of the Company (the "Series I Preferred Stock" and, together with the
Common Stock, the "Shares") and (iii) senior unsecured promissory notes of the
Company;
WHEREAS, pursuant to the terms of the Merger Agreement and the
Voting Agreement certain of the Investors will receive Shares in exchange for
the surrender of equity securities owned upon consummation of the Merger;
WHEREAS, the shares of Series I Preferred Stock are
convertible into shares of Common Stock;
WHEREAS, the Company has agreed, as a condition precedent to
the Investors' obligations under the Merger Agreement and the Subscription
Agreement, to grant the Investors certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the
respective meaning set forth below:
COMMISSION: shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934,
as amended;
HOLDER: shall mean any holder of Registrable Securities;
INITIAL PUBLIC OFFERING: shall mean the initial public
offering of shares of Common Stock pursuant to a registration under the
Securities Act;
INITIATING HOLDER: shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities;
PERSON: shall mean an individual, partnership, joint-stock
company, corporation, trust or unincorporated organization, and a government or
agency or political subdivision thereof;
REGISTER, REGISTERED AND REGISTRATION: shall mean a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
REGISTRABLE SECURITIES: shall mean (A) shares of Common Stock
owned by any Investor on the date hereof, (B) any shares of Common Stock
issuable upon conversion of the shares of Series I Preferred Stock, (C) any
additional shares of Common Stock acquired by the Investors (other than shares
acquired upon the exercise of employee stock options) and (D) any stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Series I Preferred Stock or
Common Stock referred to in clause (A), (B) or (C);
REGISTRATION EXPENSES: shall mean all expenses incurred by the
Company in compliance with Section 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders in an amount not to exceed $15,000, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company);
SECURITY, SECURITIES: shall have the meaning set forth in
Section 2(1) of the Securities Act;
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SECURITIES ACT: shall mean the Securities Act of 1933, as
amended; and
SELLING EXPENSES: shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for each of the Holders other than fees and
expenses of one counsel for all the Holders in an amount not to exceed $15,000.
SECTION 2. REGISTRATION RIGHTS
(a) REQUESTED REGISTRATION.
(i) REQUEST FOR REGISTRATION. If the Company shall receive
from an Initiating Holder, at any time after the earlier of the third
anniversary of the date hereof and the date that is 181 days after the
date on which the Initial Public Offering closes, a written request
that the Company effect any registration with respect to all or a part
of the Registrable Securities, the Company will:
(1) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(2) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under the
Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
received by the Company within fifteen (15) days after written notice
from the Company is given under Section 2(a)(i)(1) above; provided that
the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):
(A) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process
in effecting such registration, qualification or compliance,
unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities
Act or applicable rules or regulations thereunder;
(B) After the Company has effected three (3) such
registrations pursuant to this Section 2(a) and such
registrations have been declared or ordered effective and the
sales of such Registrable Securities shall have closed;
(C) If the Registrable Securities requested by all Holders to
be registered pursuant to such request do not have an
anticipated aggregate
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public offering price (before any underwriting discounts and
commissions) of not less than $15,000,000;
(D) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of
filing of, and ending on the date six (6) months immediately
following the effective date of, any registration statement
pertaining to securities of the Company (other than a
registration of securities in a Commission Rule 145
transaction, with respect to an employee benefit plan or with
respect to the Company's first registered public offering of
its stock), provided that the Company is actively employing in
good faith all reasonable efforts to cause such registration
statement to become effective; PROVIDED, HOWEVER, that the
Company may only delay an offering pursuant to this Section
2(a)(i)(2)(D) for a period of not more than sixty (60) days,
if a filing of any other registration statement is not made
within that period and the Company may only exercise this
right once in any twelve (12) month period; or
(E) If the Company shall furnish to the Initiating Holders a
certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed in the
near future, in which case the Company's obligation to use its
best efforts to comply with this Section 2 shall be deferred
for a period not to exceed sixty (60) days from the date of
receipt of written request from the Initiating Holders;
PROVIDED, HOWEVER, that the Company shall not exercise such
right more than once in any twelve-month period.
The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of Section
2(a)(ii) below, include other securities of the Company which are held
by Persons who, by virtue of agreements with the Company, are entitled
to include their securities in any such registration ("Other
Stockholders"). In the event any Holder requests a registration
pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners, the registration shall provide
for the resale by such partners, if requested by such Holder.
The registration rights set forth in this Section 2 may be
assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be bound by all obligations of this Agreement).
(ii) UNDERWRITING. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a).
If Other Stockholders request such inclusion, the Holders
shall offer to include the securities of such Other Stockholders in the
underwriting and may condition such offer
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on their acceptance of the further applicable provisions of this
Section 2. The Holders whose shares are to be included in such
registration and the Company shall (together with all Other
Stockholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form
with the representative of the underwriter or underwriters selected for
such underwriting by the Initiating Holders and reasonably acceptable
to the Company. Notwithstanding any other provision of this Section
2(a), if the representative advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the securities of the Company held by Other Stockholders
shall be excluded from such registration to the extent so required by
such limitation. If, after the exclusion of such shares, further
reductions are still required, the number of shares included in the
registration by each Holder shall be reduced on a pro rata basis (based
on the number of shares held by such Holder), by such minimum number of
shares as is necessary to comply with such request. No Registrable
Securities or any other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in
such registration. If any Other Stockholder who has requested inclusion
in such registration as provided above disapproves of the terms of the
underwriting, such Person may elect to withdraw therefrom by written
notice to the Company, the underwriter and the Initiating Holders. The
securities so withdrawn shall also be withdrawn from registration. If
the underwriter has not limited the number of Registrable Securities or
other securities to be underwritten, the Company and officers and
directors of the Company may include its or their securities for its or
their own account in such registration if the representative so agrees
and if the number of Registrable Securities and other securities which
would otherwise have been included in such registration and
underwriting will not thereby be limited.
(b) COMPANY REGISTRATION.
(i) After the closing of the Initial Public Offering, if the
Company shall determine to register any of its equity securities either
for its own account or for the account of Other Stockholders, other
than a registration relating solely to employee benefit plans, or a
registration relating solely to a Commission Rule 145 transaction, or a
registration on any registration form which does not permit secondary
sales or does not include substantially the same information as would
be required to be included in a registration statement covering the
sale of Registrable Securities, the Company will:
(1) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(2) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made by the Holders within fifteen
(15) days after receipt of the written notice from the Company
described in clause (i) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify all or a part of the Holders'
Registrable Securities. In the event any Holder requests
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inclusion in a registration pursuant to this Section 2(b) in connection
with a distribution of Registrable Securities to its partners, the
registration shall provide for the resale by such partners, if
requested by such Holder.
(ii) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part
of the written notice given pursuant to Section 2(b)(i)(1). In such
event, the right of each of the Holders to registration pursuant to
this Section 2(b) shall be conditioned upon such Holders' participation
in such underwriting and the inclusion of such Holders' Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter
or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the
representative determines that marketing factors require a limitation
on the number of shares to be underwritten, the representative may
(subject to the allocation priority set forth below) limit the number
of Registrable Securities to be included in the registration and
underwriting to not less than twenty five percent (25%) of the shares
included therein (based on the number of shares). The Company shall so
advise all holders of securities requesting registration, and the
number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following
manner: The securities of the Company held by officers, directors and
Other Stockholders of the Company (other than Registrable Securities
and other than securities held by holders who by contractual right
demanded such registration ("Demanding Holders")) shall be excluded
from such registration and underwriting to the extent required by such
limitation, and, if a limitation on the number of shares is still
required, the number of shares that may be included in the registration
and underwriting by each of the Holders and Demanding Holders shall be
reduced, on a pro rata basis (based on the number of shares held by
such Holder), by such minimum number of shares as is necessary to
comply with such limitation. If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(c) FORM S-3. Following the Initial Public Offering, the
Company shall use its best efforts to qualify for registration on Form S-3 for
secondary sales. After the Company has qualified for the use of Form S-3, the
Holders shall have the right to request three (3) registrations on Form S-3
(such requests shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended method of disposition
of shares by such holders), PROVIDED that the Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to this
Section 2(c):
(i) Unless the Holder or Holders requesting registration
propose to dispose of shares of Registrable Securities having an
aggregate price to the public (before deduction of Selling Expenses) of
more than $5,000,000;
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(ii) Within 180 days of the effective date of the most recent
registration pursuant to this Section 2(c) in which securities held by
the requesting Holder could have been included for sale or
distribution;
(iii) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act or applicable rules or
regulations thereunder;
(iv) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on the date six (6) months immediately following the
effective date of, any registration statement pertaining to securities
of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that
the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective; PROVIDED,
HOWEVER, that the Company may only delay an offering pursuant to this
Section 2(c)(iv) for a period of not more than sixty (60) days, if a
filing of any other registration statement is not made within that
period and the Company may only exercise this right once in any twelve
(12) month period; or
(v) If the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to
the Company or its stockholders for a registration statement to be
filed in the near future, in which case the Company's obligation to use
its best efforts to comply with this Section 2(c) shall be deferred for
a period not to exceed sixty (60) days from the date of receipt of
written request from the Holders; PROVIDED, HOWEVER, that the Company
shall not exercise such right more than once in any twelve-month
period.
The Company shall give written notice to all Holders of the
receipt of a request for registration pursuant to this Section 2(c)and
shall provide a reasonable opportunity for other Holders to participate
in the registration, provided that if the registration is for an
underwritten offering, the terms of Section 2(a)(ii) shall apply to all
participants in such offering. Subject to the foregoing, the Company
will use its best efforts to effect promptly the registration of all
shares of Registrable Securities on Form S-3 to the extent requested by
the Holder or Holders thereof for purposes of disposition. In the event
any Holder requests a registration pursuant to this Section 2(c) in
connection with a distribution of Registrable Securities to its
partners, the registration shall provide for the resale by such
partners, if requested by such Holder.
(d) EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 2 shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered.
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(e) REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one
hundred twenty (120) days or until the Holders (or in the case of a
distribution to the partners of such Holder, such partners), as
applicable, have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
PROVIDED, HOWEVER, that (A) such 120-day period shall be extended for a
period of time equal to the period during which the Holders or
partners, as applicable, refrain from selling any securities included
in such registration in accordance with provisions in Section 2(i)
hereof; and (B) in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous
or delayed basis, such 120-day period shall be extended until all such
Registrable Securities are sold, provided that Commission Rule 415, or
any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules
under the Securities Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective
amendment which (y) includes any prospectus required by Section 10(a)
of the Securities Act or (z) reflects facts or events representing a
material or fundamental change in the information set forth in the
registration statement, the incorporation by reference of information
required to be included in (y) and (z) above to be contained in
periodic reports filed pursuant to Section 12 or 15(d) of the Exchange
Act in the registration statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to
time may reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is
required to be delivered under the Securities Act 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 the light of the circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being
sold through underwriters or, if such securities are not being sold
through underwriters, on the date that the registration statement with
respect to such securities becomes effective, (1) an opinion, dated as
of such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating in
such registration, addressed to the underwriters, if any, and to the
Holders participating in such registration and (2) a letter, dated as
of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
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offering and reasonably satisfactory to a majority in interest of the
Holders participating in such registration, addressed to the
underwriters, if any, and if permitted by applicable accounting
standards, to the Holders participating in such registration.
(f) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, as
applicable, each of the Holders' respective officers, directors and
partners, and each Person controlling each of the Holders, with respect
to each registration which is effected pursuant to this Section 2, and
each underwriter, if any, and each Person who controls any underwriter,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any 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 any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and
will reimburse each of the Holders, each of the Holder's respective
officers, directors and partners, and each Person controlling each of
the Holders, each such underwriter and each Person who controls any
such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim,
loss, damage, liability or action, provided that the Company will not
be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the
Company by the Holders or underwriter and stated to be specifically for
use therein.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each
Person who controls the Company or such underwriter, each Other
Stockholder and each of their officers, directors, and partners, and
each Person controlling such Other Stockholder against all claims,
losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any such registration statement,
prospectus, offering circular or other document made by such Holder, or
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements by
such Holder therein not misleading, and will reimburse the Company and
such Other Stockholders, directors, officers, partners, Persons,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular
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or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein; provided, however, that the obligations
of each of the Holders hereunder shall be limited to an amount equal to
the net proceeds to such Holder of securities sold as contemplated
herein.
(iii) Each party entitled to indemnification under this
Section 2(f) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of counsel
shall be at the expense of the Indemnifying Party), and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or
the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f)
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense 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,
liability, claim, damage or expense, 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.
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(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement
shall be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage arising out of a statement made in or
omitted from a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b)
(the "Final Prospectus"), such indemnity or contribution agreement
shall not inure to the benefit of any underwriter or Holder if a copy
of the Final Prospectus was furnished to the underwriter and was not
furnished to the Person asserting the loss, liability, claim or damage
at or prior to the time such action is required by the Securities Act.
(g) INFORMATION BY THE HOLDERS.
(i) Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company
may reasonably request in writing and as shall be reasonably required
in connection with any registration, qualification or compliance
referred to in this Section 2.
(ii) In the event that, either immediately prior to or
subsequent to the effectiveness of any registration statement, any
Holder shall distribute Registrable Securities to its partners, such
Holder shall so advise the Company and provide such information as
shall be necessary to permit an amendment to such registration
statement to provide information with respect to such partners, as
selling securityholders. Promptly following receipt of such
information, the Company shall file an appropriate amendment to such
registration statement reflecting the information so provided. Any
incremental expense to the Company resulting from such amendment shall
be borne by such Holder.
(h) RULE 144 REPORTING.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times from and after ninety (90) days following the
effective date of the first registration under the Securities Act filed
by the Company for an offering of its securities to the general public;
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(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at
any time from and after ninety (90) days following the effective date
of the first registration statement filed by the Company for an
offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) "MARKET STAND-OFF" AGREEMENT. Each of the Holders agrees,
if requested by the Company and an underwriter of equity securities of the
Company, not to sell or otherwise transfer or dispose of any Registrable
Securities held by such Holder during the 180-day period following the effective
date of a registration statement of the Company filed under the Securities Act,
provided that:
(i) such agreement only applies to the Initial Public
Offering; and
(ii) all officers and directors of the Company enter into
similar agreements.
If requested by the underwriters, the Holders shall execute a
separate agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 180-day period. The provisions of this Section
2(i) shall be binding upon any transferee who acquires Registrable Securities.
(j) TERMINATION. The registration rights set forth in this
Section 2 shall not be available to any Holder if, (i) in the opinion of counsel
to the Company, all of the Registrable Securities then owned by such Holder
could be sold in any 90-day period pursuant to Rule 144 (without giving effect
to the provisions of Rule 144(k)) or (ii) all of the Registrable Securities held
by such Holder have been sold in a registration pursuant to the Securities Act
or pursuant to Rule 144.
SECTION 3. MISCELLANEOUS
(a) DIRECTLY OR INDIRECTLY. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(b) 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 entirely within such State.
-12-
(c) SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(d) NOTICES.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by
overnight courier or by registered or certified mail, postage prepaid:
(1) if to the Company, to 000 Xxxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Chief Executive
Officer, (facsimile: (000) 000-0000), or at such other address as it
may have furnished in writing to the Holders, with a copy to Steel
Xxxxxx & Xxxxx LLP, 1900 Xxxxxxxx Point West, 000 Xxxxx Xxxxxxx Xxxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (facsimile: (000) 000-0000), Attention:
Xxx X. Xxxxx, Esq. or at such other address as the Company may have
furnished to the Holders pursuant to this subsection.
(2) if to the Holders, at the address or facsimile number
listed on Schedule I hereto, or at such other address or facsimile
number as may have been furnished the Company in writing, with a copy
to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(facsimile: (000) 000-0000), Attention: Xxxxxx X. Xxxxxxx, Esq. or if
such other address as any Holder may have furnished to the company and
the other Holders pursuant to this subsection.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed
by overnight courier, on the first business day following the date of
such mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(e) REPRODUCTION OF DOCUMENTS. This Agreement and all
documents relating thereto, including, without limitation, any consents, waivers
and modifications which may hereafter be executed may be reproduced by the
Holders by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and the Holders may destroy any original
document so reproduced. The parties hereto agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Holders in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(g) ENTIRE AGREEMENT; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understandings among such
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parties. This Agreement may be amended, and the observance of any term of this
Agreement may be waived, with (and only with) the written consent of the Company
and the Holders holding at least 75% of the then outstanding Registrable
Securities; provided, however, that if any amendment or waiver would adversely
affect the rights or duties of one or more of the Holders (the "Adversely
Affected Holders") in a way that is different from its effect on such rights or
duties of other Holders, such amendment or waiver shall not be effective as to
any Adversely Affected Holders, unless consented to in writing by a majority in
interest of the Adversely Affected Holders; provided, further, that the
provisions of this Section 3(g) and Section 2(j) may be amended or waived with
(and only with) the unanimous written consent of the Investors. Each Holder
shall be bound by any amendment or waiver effected in accordance with this
Section, whether or not such Holder has consented to such amendment or waiver.
Upon the effectuation of each such amendment or waiver, the Company shall
promptly give written notice thereof to the Holders who have not previously
consented thereto in writing.
(h) SEVERABILITY. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(i) COUNTERPARTS. This Agreement may be executed in two or
more counterparts (including by facsimile), each of which shall be deemed an
original and all of which together shall be considered one and the same
agreement.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
MSN HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxx
Title: President
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
NAVIS PARTNERS V, L.P.
By: Navis Management V, L.P.,
its General Partner
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
By: Xxxxx X. Xxxxxxxx
Its: Managing Director
XXXXXXX PLAZA PARTNERS III, LLC
By: Navis Management V, L.P.,
its Manager
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
By: Xxxxx X. Xxxxxxxx
Its: Managing Director
FLEET VENTURE RESOURCES, INC.
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
By: Xxxxx X. Xxxxxxxx
Under Power of Attorney dated 8/4/00
[Signature Page to Registration Rights Agreement]
FLEET EQUITY PARTNERS VI, L.P.
By: Silverado IV Corp.,
a General Partner
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
By: Xxxxx X. Xxxxxxxx
Vice President
XXXXXXXX PARTNERS IV, L.P.
By: Xxxxxxxx Management IV, L.P.,
its General Partner
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
By: Xxxxx X. Xxxxxxxx
Principal
XXXXXXX PLAZA PARTNERS II, LLC
By: Xxxxxxxx Management IV, L.P.,
its Manager
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Principal
XXXXX XXXXXXX HEALTHCARE FUND II, L.P.
By: Xxxxx Xxxxxxx Healthcare Management, L.P.,
General Partner
By: Xxxxx Xxxxxxx Ventures, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
[Signature Page to Registration Rights Agreement]
XXXXX XXXXXXX HEALTHCARE FUND III, L.P.
By: Xxxxx Xxxxxxx Healthcare Management, L.P.,
General Partner
By: Piper Ventures Capital, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
SSP INVESTMENT PARTNERS, L.P.
By: Xxxxxx X. Xxxxxx, Xx.
General Partner
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: General Partner
GENERAL ELECTRIC PENSION TRUST
By: GE Asset Management Incorporated,
its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx, Xx.
---------------------------------------
Xxxxxx Xxxxxx, Xx.
/s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxx
OMENA INVESTMENTS LIMITED PARTNERSHIP
By: Xxxxxx X. Xxxxxx, Xx.
[Signature Page to Registration Rights Agreement]
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
OMENA HOLDINGS LIMITED PARTNERSHIP
By: Omena Holdings, Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
RJA MANAGEMENT LIMITED PARTNERSHIP
By: RJA Management, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
RJA HOLDINGS LIMITED PARTNERSHIP
By: RJA Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
PGD HOLDINGS LIMITED PARTNERSHIP
By: PGD Holdings, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
PGD INVESTMENTS LIMITED PARTNERSHIP
By: PGD Investments, Inc., its General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
KSL HOLDINGS LIMITED PARTNERSHIP
By:KSL Holdings, Inc., its General Partner
By: /s/ Xxxxx X. Little
-----------------------------------
Name: Xxxxx X. Little
Title: President
KSL INVESTMENTS LIMITED PARTNERSHIP
By: KSL Investments, Inc., its General Partner
By: /s/ Xxxxx X. Little
-----------------------------------
Name: Xxxxx X. Little
Title: President
[Signature Page to Registration Rights Agreement]
