Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
December 21, 1995
To the Purchasers named
at the foot hereof
Dear Sirs:
This will confirm that in consideration of the purchase (i) by you on the
date hereof of an aggregate 19,999,000 shares of Common Stock (as such term is
defined herein) of GKN Holdings, Inc., a Delaware corporation (the "Company"),
pursuant to the Securities Purchase Agreement dated as of the date hereof among
the Company and you (the "Purchase Agreement"), and (ii) by WCAS Information
Partners, L.P. of 1,000 shares of Common Stock in connection with the
organization of the Company, and as an inducement to you to consummate the
transactions contemplated by the Purchase Agreement, the Company hereby
covenants and agrees with each of you, and with each subsequent holder of
Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. As used herein, the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock of the Company, as
constituted as of the date of this Agreement, subject to adjustment
pursuant to the provisions of Section 10 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 8 hereof. "Restricted Stock" shall mean any shares of capital
stock of the Company, the certificates for which are required to bear the
legend set forth in Section 2 hereof.
"Securities Act" shall mean the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8
hereof.
2. Restrictive Legend. Each certificate representing the Common
Stock and each certificate issued upon exchange or transfer of
the Common Stock other than in a public sale or as otherwise
permitted by the last paragraph of paragraph 3 hereof shall be
stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT
ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of
any Restricted Stock (other than under the circumstances
described in Section 4, 5 or 6 hereof), the holder thereof
shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the
manner of the proposed transfer and, if requested by the
Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company (it being agreed that
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be
satisfactory) to the effect that the proposed transfer of the
Restricted Stock may be effected without registration under
the Securities Act, whereupon the holder of such Restricted
Stock shall be entitled to transfer such Restricted Stock in
accordance with the terms of its notice; provided, however,
that no such opinion or other documentation shall be required
if such notice shall cover a distribution by Welsh, Carson,
Xxxxxxxx & Xxxxx VII, L.P. or WCAS Information Partners, L.P.
to its partners. Each certificate for Restricted Stock
transferred as above provided shall bear the legend set forth
in Section 2, unless (i) such transfer is in accordance with
the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or
(ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent
transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without
registration under the Securities Act.
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The foregoing restrictions on transferability of Restricted Stock shall
terminate as to any particular shares of Restricted Stock when such shares shall
have been effectively registered under the Securities Act and sold or otherwise
disposed of in accordance with the intended method of disposition by the seller
or sellers thereof set forth in the registration statement concerning such
shares. Whenever a holder of Restricted Stock is able to demonstrate to the
Company (and its counsel) that the provisions of Rule 144(k) of the Securities
Act are available to such holder without limitation, such holder of Restricted
Stock shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
4. Required Registration.
(a) At any time the holders of Restricted Stock constituting
at least a majority of the total Restricted Stock
outstanding at such time may request the Company to
register under the Securities Act all or any portion of
the Restricted Stock held by such requesting holder or
holders for sale in the manner specified in such notice;
provided, however, that the only securities which the
Company shall be required to register pursuant hereto
shall be shares of Common Stock.
(b) Promptly following receipt of any notice under this
Section 4, the Company shall immediately notify any
holders of Restricted Stock from whom notice has not
been received and shall use its best efforts to register
under the Securities Act, for public sale in accordance
with the method of disposition specified in such notice
from requesting holders, the number of shares of
Restricted Stock specified in such notice (and in any
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notices received from other holders within 20 days after
their receipt of such notice from the Company);
provided, however, that if the proposed method of
disposition specified by the requesting holders shall be
an underwritten public offering, the number of shares of
Restricted Stock to be included in such an offering may
be reduced (pro rata among the requesting holders based
on the number of shares of Restricted Stock so requested
to be registered) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the Restricted
Stock to be sold. If such method of disposition shall be
an underwritten public offering, the Company may
designate the managing underwriter of such offering,
subject to the approval of the selling holders of a
majority of the Restricted Stock included in the
offering, which approval shall not be unreasonably
withheld. The Company shall be obligated to register
Restricted Stock pursuant to this Section 4 on two
occasions only. Notwithstanding anything to the contrary
contained herein, the obligation of the Company under
this Section 4 shall be deemed satisfied only when a
registration statement covering all shares of Restricted
Stock specified in notices received as aforesaid, for
sale in accordance with the method of disposition
specified by the requesting holder, shall have become
effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4,
for sale in accordance with the method of disposition
specified by the requesting holders, shares of Common
Stock to be sold by the Company for its own account,
except as and to the extent that, in the opinion of the
managing underwriter (if such method of disposition
shall be an underwritten public offering), such
inclusion would adversely affect the marketing of the
Restricted Stock to be sold. Except as provided in this
paragraph (c), the Company will not effect any other
registration of its Common Stock, whether for its own
account or that of other holders, from the date of
receipt of a notice from requesting holders pursuant to
this Section 4 until the completion of the period of
distribution of the registration contemplated thereby.
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5. Form S-3 Registration.
(a) If the Company shall receive from any holder or holders
of Restricted Stock, a written request or requests that
the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to
Restricted Stock owned by such holder or holders, the
reasonably anticipated aggregate price to the public of
which would exceed $1,000,000, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or
compliance, to all other holders of Restricted
Stock; and
(ii) as soon as practicable, effect such registration
(including, without limitation, the execution of
an undertaking to file post-effective amendments,
appropriate qualifications under applicable blue
sky or other state securities laws and appropriate
compliance with applicable regulations issued
under the Securities Act and any other government
requirements or regulations) as may be so
requested and as would permit or facilitate the
sale and distribution of all or such portion of
such holder's or holders' Restricted Stock as are
specified in such request, together with all or
such portion of the Restricted Stock of any holder
or holders joining in such request as are
specified in a written request given within thirty
(30) days after receipt of such written notice
from the Company, provided that the Company shall
not be obligated to effect any such registration,
qualification or compliance pursuant to this
Section 5 (A) more than once in any 180-day
period, or (B) if the Company is not entitled to
use Form S-3. Subject to the foregoing, the
Company shall file a registration statement
covering the Restricted Stock so requested to be
registered as soon as practicable after receipt of
the request or requests of the holders of the
Restricted Stock.
(b) Registrations effected pursuant to this Section 5 shall
not be counted as requests for registration effected
pursuant to Section 4.
6. Incidental Registration. If the Company at any time (other
than pursuant to Section 4 or 5 hereof) proposes to register
any of its Common Stock under the Securities Act for sale to
the public, whether for its own account or for the account of
other securityholders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not
available for registering the Restricted Stock for sale to the
public), it will give written notice at such time to all
holders of outstanding Restricted Stock of its intention to do
so. Upon the written request of any such holder, given within
30 days after receipt of any such notice by the Company, to
register any of its Restricted Stock (which request shall
state the intended method of disposition thereof), the Company
will use its best efforts to cause the Restricted Stock as to
which registration shall have been so requested, to be
included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by
the holder (in accordance with its written request) of such
Restricted Stock so registered; provided that nothing herein
shall prevent the Company from abandoning or delaying such
registration at any time. In the event that any registration
pursuant to this Section 6 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a
holder pursuant to this Section 6 to register Restricted Stock
shall specify that either (i) such Restricted Stock is to be
included in the underwriting on the same terms and conditions
as the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted
Stock is to be sold in the open market without any
underwriting, on terms and conditions comparable to those
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normally applicable to offerings of common stock in reasonably
similar circumstances. The number of shares of Restricted
Stock to be included in such an underwriting may be reduced
(pro rata among the requesting holders of Restricted Stock
based upon the number of shares of Restricted Stock so
requested to be registered) if and to the extent that the
managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; provided,
however, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such
underwriting for the account of any person other than the
Company.
Notwithstanding anything to the contrary contained in this Section 6, in
the event that there is a firm commitment underwritten public offering of
securities of the Company pursuant to a registration covering Restricted Stock
and a holder of Restricted Stock does not elect to sell his Restricted Stock to
the underwriters of the Company's securities in connection with such offering,
such holder shall refrain from selling such Restricted Stock so registered
pursuant to this Section 6 during the period of distribution of the Company's
securities by such underwriters and the period in which the underwriting
syndicate participates in the after market; provided, however, that such holder
shall, in any event, be entitled to sell its Restricted Stock commencing on the
90th day after the effective date of such registration statement.
7. Registration Procedures and Expenses. If and whenever the
Company is required by the provisions of Section 4, 5 or 6
hereof to use its best efforts to effect the registration of
any of the Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon)
and file with the Commission a registration statement
(which, in the case of an underwritten public offering
pursuant to Section 4 hereof, shall be on Form S-1 or
another form of general applicability satisfactory to
the managing underwriter selected as therein provided)
with respect to such securities and use its best efforts
to cause such registration statement to become and
remain effective for the period of the distribution
contemplated thereby (determined as hereinafter
provided);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon)
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 the period specified in paragraph (a) above and as
comply with the provisions of the Securities Act with
respect to the disposition of all Restricted Stock
covered by such registration statement in accordance
with the sellers' intended method of disposition set
forth in such registration statement for such period;
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(c) furnish to each seller and to each underwriter such
number of copies of the registration statement and the
prospectus included therein (including each preliminary
prospectus) as such persons may reasonably request in
order to facilitate the public sale or other disposition
of the Restricted Stock covered by such registration
statement;
(d) use its best efforts to register or qualify the
Restricted Stock covered by such registration statement
under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or, in
the case of an underwritten public offering, the
managing underwriter, shall reasonably request (provided
that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
paragraph (d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of
process in any jurisdiction);
(e) immediately notify each seller under such registration
statement and each underwriter, 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 contained in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state
any material fact required to be stated therein or
necessary to make the statements therein not misleading
in the light of the circumstances then existing;
(f) use its best efforts (if the offering is under- written)
to furnish, at the request of any seller, on the date
that Restricted Stock is delivered to the underwriters
for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing the Company for
the purposes of such registration, addressed to the
underwriters and to such seller, stating that such
registration statement has become effective under the
Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that
purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each
amendment or supplement thereof, comply as to form in
all material respects with the requirements of the
Securities Act and the applicable rules and regulations
of the Commission thereunder (except that such counsel
need express no opinion as to financial statements, the
notes thereto, and the financial schedules and other
financial and statistical data contained therein) and
(C) to such other effects as may reasonably be requested
by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company,
addressed to the underwriters, stating that they are
independent public accountants within the meaning of the
Securities Act and that, in the opinion of such
accountants, the financial statements of the Company
included in the registration statement or the
prospectus, or any amendment or supplement thereof,
comply as to form in all material respects with the
applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other
financial matters (including information as to the
period ending no more than five business days prior to
the date of such letter) with respect to the
registration in respect of which such letter is being
given as such underwriters or seller may reasonably
request; and
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(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant
to such registration statement, and any attorney,
accountant or other agent retained by such seller or
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to
supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in
connection with such registration statement and permit
such seller, attorney, accountant or agent to
participate in the preparation of such registration
statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
six months after the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4, 5 and 6
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, provided, however, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and provided, further, however,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling holders
of Restricted Stock.
8. Expenses. All expenses incurred by the Company in complying
with Sections 4, 5 and 6 hereof, including, without
limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees
of transfer agents and registrars and fees and expenses of
counsel for the sellers of Restricted Stock but excluding any
Selling Expenses, are herein called "Registration Expenses".
All underwriting discounts and selling commissions applicable
to the sale of Restricted Stock are herein called "Selling
Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4, 5 or 6 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4, 5 or 6 hereof shall be borne by the participating sellers in proportion to
the number of shares sold by each, or by such persons other than the Company
(except to the extent the Company shall be a seller) as they may agree.
9. Indemnification. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section
4, 5 or 6 hereof, the Company will indemnify and hold harmless
each seller of such Restricted Stock thereunder and each
underwriter of Restricted Stock thereunder and each other
person, if any, who controls such seller or underwriter within
the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such seller
or underwriter or controlling person 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 any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Section 4,5 or
6, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
will reimburse each such seller, each such underwriter and
each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable
in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling
person in writing specifically for use in such registration
statement or prospectus.
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In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer or director or underwriter or controlling person 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 any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Section 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus;
provided, further, however, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of shares sold
by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not to exceed the proceeds
(net of underwriting discounts and commissions) received by such seller from the
sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 9. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 8 for any
legal expenses subsequently
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incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party, or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the right
to retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the underwriters and the
sellers of such Restricted Stock on the other, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give any notice under the third paragraph of this Section 9. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact relates to information
supplied by the Company, on the one hand, or the underwriters and the sellers of
such Restricted Stock on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation (even if all of the sellers of such Restricted Stock were
treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as a result
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of the losses, claims, damages, liabilities or action in respect thereof,
referred to above in this paragraph, shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, the sellers of such Restricted Stock shall not be
required to contribute any amount in excess of the amount, if any, by which the
total price at which the Common Stock sold by each of them was offered to the
public exceeds the amount of any damages which they would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act), shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 9 shall
be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
10. Changes in Common Stock. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock
dividend, combination or reclassification, or through merger,
consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the
provisions hereof, as may be required, so that the rights and
privileges granted hereby shall continue with respect to the
Common Stock as so changed.
11. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by
all requisite corporate action and will not violate any
provision of law, any order of any court or other agency
of government, the Certificate of Incorporation or
By-laws of the Company, or any provision of any
indenture, agreement or other instrument to which it or
any of its properties or assets is bound, or conflict
with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or result
in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
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(b) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance
with its terms, subject to considerations of public
policy in the case of the indemnification provisions
hereof.
12. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information
available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times from and
after the date it is first required to do so.
(b) The Company shall file with the Commission in a timely
manner all reports and other documents as the Commission
may prescribe under Section 13(a) or 15(d) of the
Exchange Act at any time after the Company has become
subject to such reporting requirements of the Exchange
Act.
(c) The Company shall furnish to such holder of Restricted
Stock forthwith upon request (i) a written statement by
the Company as to its compliance with the reporting
requirements of Rule 144 (at any time from and after the
date it first becomes subject to such reporting
require-ments, and of the Securities Act and the
Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed as a
holder may reasonably request to avail itself of any
rule or regulation of the Commission allowing a holder
of Restricted Stock to sell any such securities without
registration.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed
or not. Without limiting the generality of the
foregoing, the registration rights conferred herein on
the holders of Restricted Stock shall inure to the
benefit of any and all subsequent holders from time to
time of the Restricted Stock for so long as the
certificates representing the Restricted Stock shall be
required to bear the legend specified in Section 2
hereof.
12
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by
first class registered mail, postage prepaid, addressed
as follows:
if to the Company, to it
c/o Welsh, Carson, Xxxxxxxx & Xxxxx
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx;
if to any holder of Restricted Stock, at their addresses as set forth in
Annex I hereto;
if to any subsequent holder of Restricted Stock to it at such address as
may have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock) or to
the holders of Restricted Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and
may not be modified or amended except in writing signed
by the Company and the holders of not less than 66 2/3%
of the Restricted Stock then outstanding provided that
no such modification or amendment shall deprive any
holder of Restricted Stock of any material right under
this Agreement without such holder's consent. The
Company will not grant any registration rights to any
other person without your consent.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the
same instrument.
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Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this letter (herein sometimes
called "this Agreement") shall be a binding agreement between the Company and
you.
Very truly yours,
GKN HOLDINGS, INC.
By /s/ XXXXXX X. XXXXXXXXX
_______________________
President
AGREED TO AND ACCEPTED as of the date first above written.
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
By WCAS VII Partners, L.P.,
General Partner
By /s/ XXXXX XXXXXXXX
_____________________________
General Partner
WCAS INFORMATION PARTNERS, L.P.
By WCAS Info Partners,
General Partner
By /s/ XXXXXXX X. XXXXX
_____________________________
General Partner
/s/ XXXXXXX X. XXXXX
________________________________
Xxxxxxx X. Xxxxx
14
/s/ XXXXXXX X. XXXXXX
________________________________
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXXX
________________________________
Xxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXX
________________________________
Xxxxxxx X. Xxxxx
/s/ XXXXXX X. XXXX
________________________________
Xxxxxx X. Xxxx
/s/ XXXXXX X. XXXXXXXXX
________________________________
Xxxxxx X. XxXxxxxxx
/s/ XXXXX XXXXXXXX
________________________________
Xxxxx XxxXxxxx
/s/ XXXXX X. XXXXXX
________________________________
Xxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXXXXX
________________________________
Xxxxxx X. Xxxxxxxxx
/s/ XXXXXXX X. XX XXXXXX
________________________________
Xxxxxxx X. xx Xxxxxx
DLJSC AS CUSTODIAN
FOR XXXXX X. XXXXXX
By: /s/ XXXXXXX XXXXXXXX
______________________________
15
ANNEX I
Purchaser
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
One World Financial Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
WCAS INFORMATION PARTNERS, L.P.
One World Financial Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxx XxxXxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xx Xxxxxx
In care of WCA Management
Corporation
One World Financial Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
DLJSC as Custodian for Xxxxx X. Xxxxxx
In care of Crown Advisors Ltd.
00 Xxxx 00xx Xxxxxx, Xxx. 0000
Xxx Xxxx, XX 00000
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