REGISTRATION AGREEMENT
EXHIBIT 10.6
REGISTRATION AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of May 4, 2005, by
and among (i) Capella Holdings, Inc., a Delaware Corporation (the “Company”), (ii) GTCR
Fund VIII, L.P., a Delaware limited partnership (“Fund VIII”), GTCR Fund VIII/B, L.P., a
Delaware limited partnership (“Fund VIII/B”), GTCR Co-Invest II, L.P., a Delaware limited
partnership (“GTCR Co-Invest”), and any investment fund managed by GTCR Xxxxxx Xxxxxx
L.L.C., a Delaware limited liability company, or GTCR Xxxxxx Xxxxxx XX, L.L.C., a Delaware limited
liability company (“GTCR”) or any of its Affiliates, that at any time acquires securities
of the Company and executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (each, an “Investor” and collectively, the “Investors”), (iii) each of
the executives of the Company set forth on the attached “Schedule of Holders” under the
heading “Executives” and any other executive employee of the Company or its Subsidiaries who, at
any time, acquires equity securities of the Company in accordance with Section 8 hereof and
executes a counterpart of this Agreement or otherwise agrees to be bound by this Agreement (each,
an “Executive” and, collectively, the “Executives”), and (iv) each of the other
entities and individuals set forth from time to time on the attached “Schedule of Holders”
under the heading “Other Stockholders” who, at any time, acquires equity securities in accordance
with Section 8 hereof and executes a counterpart of this Agreement or otherwise agrees to
be bound by this Agreement (the “Other Stockholders”). The Investors, the Executives and
the Other Stockholders are collectively referred to herein as the “Stockholders”.
The Company and the Investors are parties to a Stock Purchase Agreement of even date herewith
(the “Purchase Agreement”). In order to induce the Investors to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the Initial Closing under the
Purchase Agreement. Unless otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in Section 10 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time, the holders of a majority of the Investor
Registrable Securities may request registration under the Securities Act of all or any portion of
their Registrable Securities on Form S-1 or any similar long-form registration (“Long-Form
Registrations”), or on Form S-2 or S-3 (including pursuant to Rule 415 under the Securities
Act) or any similar short-form registration (“Short-Form Registrations”), if available.
All registrations requested pursuant to this Section 1(a) are referred to herein as
“Demand Registrations.” Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the anticipated per
share price range for such offering. Within ten days after receipt of any such request, the
Company shall give written notice of such requested registration to all other holders of
Registrable Securities and shall include in such registration (and in all related registrations and
qualifications under blue sky laws or in compliance with other registration requirements and in any
related underwriting) all
Registrable Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company’s notice.
(b) Investor Long-Form Registrations. The holders of Investor Registrable Securities
shall be entitled to request an unlimited number of Long-Form Registrations in which the Company
shall pay all Registration Expenses (as defined in Section 5). All Long-Form Registrations
shall be underwritten registrations.
(c) Investor Short-Form Registrations. In addition to the Long-Form Registrations
provided pursuant to Section 1(b), the holders of Investor Registrable Securities shall be
entitled to request an unlimited number of Short-Form Registrations in which the Company shall pay
all Registration Expenses. Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company shall use its best efforts to
make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities. If the
Company, pursuant to the request of the holder(s) of a majority of Investor Registrable Securities,
is qualified to and has filed with the Securities Exchange Commission a registration statement
under the Securities Act on Form S-3 pursuant to Rule 415 under the Securities Act (the
“Required Registration”), then the Company shall use its best efforts to cause the Required
Registration to be declared effective under the Securities Act as soon as practicable after filing,
and, once effective, the Company shall cause such Required Registration to remain effective for a
period ending on the earlier of (i) the date on which all Investor Registrable Securities have been
sold pursuant to the Required Registration, or (ii) the date as of which the holder(s) of Investor
Registrable Securities (assuming such holder(s) are affiliates of the Company) are able to sell all
of the Investor Registrable Securities then held by them within a ninety-day period in compliance
with Rule 144 under the Securities Act.
(d) Priority on Demand Registrations. The Company shall not include in any Demand
Registration any securities that are not Registrable Securities without the prior written consent
of the holders of a majority of the Investor Registrable Securities included in such registration.
If a Demand Registration is an underwritten offering and the managing underwriters advise the
Company in writing that, in their opinion, the number of Registrable Securities and, if permitted
hereunder, other securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, that can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the Investor Registrable
Securities to be included in such registration, then the Company shall include in such
registration, prior to the inclusion of any securities that are not Registrable Securities, the
number of Registrable Securities requested to be included that, in the opinion of such
underwriters, can be sold in an orderly manner within the price range of such offering, pro rata
among the respective holders thereof on the basis of the amount of Registrable Securities owned by
each such holder.
(e) Restrictions on Long-Form Registrations. The Company shall not be obligated to
effect any Long-Form Registration within 90 days after the effective date of a previous Long-Form
Registration or a previous registration in which the holders of Registrable Securities were given
piggyback rights pursuant to Section 2 and in which there was no
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reduction in the number of Registrable Securities requested to be included. The Company may
postpone for up to 180 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company and the holders of a majority of the Investor Registrable
Securities agree that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company or any of its Subsidiaries to acquire
financing, engage in any acquisition of assets (other than in the ordinary course of business), or
engage in any merger, consolidation, tender offer, reorganization, or similar transaction;
provided that, in such event, the holders of Investor Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request and the Company
shall pay all Registration Expenses in connection with such registration. The Company may delay a
Demand Registration hereunder only once in any twelve-month period.
(f) Selection of Underwriters. The holders of a majority of the Investor Registrable
Securities included in any Demand Registration shall have the right to select the investment
banker(s) and manager(s) to administer the offering.
(g) Other Registration Rights. Except as provided in this Agreement, the Company
shall not grant to any Persons the right to request the Company to register any equity securities
of the Company, or any securities, options, or rights convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the holders of a majority of
the Investor Registrable Securities.
(h) Obligations of Holders of Registrable Securities. Subject to the Company’s
obligations under Section 4(e) hereof, each holder of Registrable Securities shall cease
using any prospectus after receipt of written notice from the Company of the happening of any event
as a result of which such prospectus contains an untrue statement of a material fact or omits any
fact necessary to make the statements therein not misleading in light of the circumstances under
which they were made.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its
securities (including any proposed registration of the Company’s securities by any third party)
under the Securities Act (other than (i) pursuant to a Demand Registration, to which Section
1 is applicable, (ii) in connection with an initial public offering of the Company’s equity
securities, or (iii) in connection with registrations on Form X-0, X-0 or any successor or similar
forms) and the registration form to be used may be used for the registration of Registrable
Securities (a “Piggyback Registration”), the Company shall give prompt written notice (and
in any event within three business days after its receipt of notice of any exercise of demand
registration rights other than under this Agreement) to all holders of Registrable Securities of
its intention to effect such a registration and shall include in such registration (and in all
related registrations and qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Registrable Securities with respect
to which the Company has received written requests for inclusion therein within 20 days after the
receipt of the Company’s notice.
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(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable
Securities shall be paid by the Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that, in their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such offering within a
price range acceptable to the Company, then the Company shall include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by each such holder, and (iii) third, the
other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities other than
holders of Registrable Securities (it being understood that secondary registrations on behalf of
holders of Registrable Securities are addressed in Section 1 above rather than this
Section 2(d)), and the managing underwriters advise the Company in writing that, in their
opinion, the number of securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range acceptable to the
holders of a majority of the Registrable Securities to be included in such registration, then the
Company shall include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by each such holder, and (iii) third, the
other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an underwritten
offering, then the selection of investment banker(s) and manager(s) for the offering must be
approved by the holders of a majority of the Registrable Securities included in such Piggyback
Registration. Such approval shall not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a registration statement
with respect to Registrable Securities pursuant to Section 1 or pursuant to this
Section 2, and if such previous registration has not been withdrawn or abandoned, then,
unless such previous registration is a Required Registration, the Company shall not file or cause
to be effected any other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities Act (except on Form
S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of
such securities, until a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder of Registrable Securities
shall not effect any public sale or distribution (including sales pursuant to
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Rule 144) of equity securities of the Company, or any securities, options, or rights
convertible into or exchangeable or exercisable for such securities, during the seven days prior to
and the 180-day period beginning on the effective date of any initial public offering or any
underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable
Securities are included (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution of its equity securities,
or any securities, options, or rights convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and during the 180-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback Registration (except as
part of such underwritten registration or pursuant to registrations on Form S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise agree, and (ii) to
the extent not inconsistent with applicable law, shall cause each holder of its equity securities,
or any securities convertible into or exchangeable or exercisable for equity securities, purchased
from the Company at any time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule
144) of any such securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public offering otherwise
agree.
4. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
shall use its best efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and, within 60 days after the end of the period within which requests for
registration may be given to the Company, file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective (provided that, before filing a
registration statement or prospectus or any amendments or supplements thereto, the Company shall
furnish to the counsel selected by the holders of a majority of the Investor Registrable Securities
covered by such registration statement copies of all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel);
(b) notify in writing each holder of Registrable Securities of the effectiveness of each
registration statement filed hereunder and prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration statement effective for a
period of not less than 180 days (or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer) and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such period in
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accordance with the intended methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to enable such seller of
Registrable Securities to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller of Registrable Securities (provided that the Company shall 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 Section 4(d), (ii) subject itself to taxation in any
such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);
(e) promptly notify in writing each seller of such Registrable Securities, 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 contains
an untrue statement of a material fact or omits any fact necessary to make the statements therein
not misleading in light of the circumstances under which they were made, and, at the request of the
holders of a majority of the Registrable Securities covered by such registration statement, the
Company shall promptly prepare and furnish to each such seller a reasonable number of copies of a
supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not misleading in light of
the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and, if not so listed, to be listed on the
NASD automated quotation system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such registration
statement as a NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such
Registrable Securities and, without limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or
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facilitate the disposition of Registrable Securities (including effecting a stock split or a
combination of shares);
(i) make available for inspection by any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant, or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company’s officers, directors, employees, and independent accountants to
supply all information reasonably requested by any such underwriter, attorney, accountant, or agent
in connection with such registration statement and assist and, at the request of any participating
underwriter, use reasonable best efforts to cause such officers or directors to participate in
presentations to prospective purchasers;
(j) otherwise use its best efforts to comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company’s first full calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any related prospectus
or suspending the qualification of any equity securities included in such registration statement
for sale in any jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(l) use its best efforts to cause such Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies or authorities as
may be necessary to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(m) obtain one or more cold comfort letters, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), from the Company’s independent public accountants in
customary form and covering such matters of the type customarily covered by cold comfort letters as
the holders of a majority of the Registrable Securities being sold in such registered offering
reasonably request (provided that such Registrable Securities constitute at least 10% of the
securities covered by such registration statement); and
(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such
registration statement (or, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of such nature.
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5. Registration Expenses.
(a) Subject to Section 5(b) below, all expenses incident to the Company’s performance
of or compliance with this Agreement, including all registration and filing fees, fees and expenses
of compliance with securities or blue sky laws, printing expenses, travel expenses, filing
expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company, and fees and disbursements of all independent certified
public accountants, underwriters including, if necessary, a “qualified independent underwriter”
within the meaning of the rules of the National Association of Securities Dealers, Inc. (in each
case, excluding discounts and commissions), and other Persons retained by the Company or by holders
of Investor Registrable Securities or their affiliates on behalf of the Company (all such expenses
being herein called “Registration Expenses”), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses (including all salaries and
expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability insurance, and the expenses and fees
for listing the securities to be registered on each securities exchange on which similar securities
issued by the Company are then listed or on the NASD automated quotation system (or any successor
or similar system).
(b) In connection with each Demand Registration and each Piggyback Registration, the Company
shall reimburse the holders of Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a majority of the
Investor Registrable Securities included in such registration.
(c) To the extent Registration Expenses are not required to be paid by the Company, each
holder of securities included in any registration hereunder shall pay those Registration Expenses
allocable to the registration of such holder’s securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of securities included in such registration
in proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each holder of Registrable Securities, its officers, directors, agents, and employees, and each
Person who controls such holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities, and expenses (or actions or proceedings, whether commenced or
threatened, in respect thereof), whether joint and several or several, together with reasonable
costs and expenses (including reasonable attorney’s fees) to which any such indemnified party may
become subject under the Securities Act or otherwise (collectively, “Losses”) caused by,
resulting from, arising out of, based upon, or relating to (i) any untrue or alleged untrue
statement of material fact contained in (A) any registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto or (B) any application or other document
or communication (in this Section 6, collectively called an “application”) executed
by or on behalf of the Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by such registration
under the “blue sky” or securities laws thereof or (ii) any
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omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Company will reimburse such holder and each
such director, officer, and controlling Person for any legal or any other expenses incurred by them
in connection with investigating or defending any such Losses; provided that the Company
shall not be liable in any such case to the extent that any such Losses result from, arise out of,
are based upon, or relate to an untrue statement or alleged untrue statement, or omission or
alleged omission, made in such registration statement, any such prospectus, or preliminary
prospectus or any amendment or supplement thereto, or in any application, in each case in reliance
upon, and in conformity with, written information prepared and furnished in writing to the Company
by such holder expressly for use therein or by such holder’s failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their officers and directors,
and each Person who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the fullest extent permitted by law, shall indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their respective
officers, directors, agents, and employees, and each other Person who controls the Company (within
the meaning of the Securities Act) against any Losses caused by, resulting from, arising out of,
based upon, or relating to (i) any untrue or alleged untrue statement of material fact contained in
the registration statement, prospectus or preliminary prospectus, or any amendment thereof or
supplement thereto or in any application, or (ii) any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any
application in reliance upon and in conformity with written information prepared and furnished to
the Company by such holder expressly for use therein, and such holder will reimburse the Company
and each such other indemnified party for any legal or any other expenses incurred by them in
connection with investigating or defending any such Losses; provided that the obligation to
indemnify will be individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to
such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification (provided that
the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably
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satisfactory to the indemnified party. If such defense is assumed, then the indemnifying
party will not be subject to any liability for any settlement made by the indemnified party without
its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have pursuant to law or
contract, and will remain in full force and effect regardless of any investigation made or omitted
by or on behalf of the indemnified party or any officer, director, or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in this Section 6 is unavailable to or is
insufficient to hold harmless an indemnified party under the provisions above in respect to any
Losses referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration statement on the
other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, then in such proportion as is appropriate to reflect not only the relative fault referred to
in clause (i) above but also the relative benefit of the Company on the one hand and of the sellers
of Registrable Securities and any other sellers participating in the registration statement on the
other in connection with the statement or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. The relative benefits received by the Company on the one
hand and the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) to the Company bear to the total net
proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and
any other sellers participating in the registration statement. The relative fault of the Company
on the one hand and of the sellers of Registrable Securities and any other sellers participating in
the registration statement on the other shall be determined by reference to, among other things,
whether the untrue statement or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other sellers participating
in the registration statement and the parties’ relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
(f) The Company and the sellers of Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the sellers of Registrable Securities were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable considerations referred
to in Section 6(e) above. The amount paid or payable by an indemnified party as a result
of the Losses referred to in Section 6(e) above shall be deemed to include,
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subject to the limitations set forth above, 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 Section 6, no seller of Registrable Securities shall
be required to contribute pursuant to this Section 6 any amount in excess of the sum of (i)
any amounts paid pursuant to Section 6(b) above and (ii) the net proceeds received by such
seller from the sale of Registrable Securities covered by the registration statement filed pursuant
hereto. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any underwritten registration hereunder unless such Person
(i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such arrangements (including
pursuant to the terms of any over-allotment or “green shoe” option requested by the
managing underwriter(s), provided that no holder of Registrable Securities will be required
to sell more than the number of Registrable Securities that such holder has requested the Company
to include in any registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, and other documents reasonably required under the
terms of such underwriting arrangements; provided that no holder of Registrable Securities
included in any underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters (other than representations and warranties regarding
such holder and such holder’s intended method of distribution) or to undertake any indemnification
obligations to the Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof.
(b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind described in Section
4(e) above, such Person will immediately discontinue the disposition of its Registrable
Securities pursuant to the registration statement until such Person’s receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(e). In the event the
Company shall give any such notice, the applicable time period mentioned in Section 4(b)
during which a Registration Statement is to remain effective shall be extended by the number of
days during the period from and including the date of the giving of such notice pursuant to this
Section 7(b) to and including the date when each seller of a Registrable Security covered
by such registration statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(e).
8. Additional Stockholders. In connection with the issuance of any additional equity
securities of the Company, the Company, with the consent of the holders of a majority of the
Investor Registrable Securities, may permit such Person to become a party to this Agreement and
succeed to all of the rights and obligations of a holder of any particular category of Registrable
Securities under this Agreement by obtaining an executed counterpart signature page to this
Agreement, and, upon such execution, such Person shall for all purposes be a holder of such
category of Registrable Securities and party to this Agreement.
- 11 -
9. Subsidiary Public Offering. If, after an initial public offering of the equity
securities of a Subsidiary of the Company, the Company distributes securities of such Subsidiary to
stockholders of the Company, then the rights and obligations of the Company pursuant to this
Agreement shall apply, mutatis mutandis, to such Subsidiary, and the Company shall cause
such Subsidiary to comply with such Subsidiary’s obligations under this Agreement.
10. Definitions.
(a) “Common Stock” means any class of the Company’s common stock.
(b) “Executive Registrable Securities” means, (i) any Common Stock issued to the
Executives and (ii) common equity securities of the Company or a Subsidiary issued or issuable with
respect to the securities referred to in clause (i) above by way of dividend, distribution,
split or combination of securities, or any recapitalization, merger, consolidation or other
reorganization.
(c) “Investor Registrable Securities” means, (i) any Common Stock issued to the
Investors pursuant to the Purchase Agreement, (ii) common equity securities of the Company or a
Subsidiary issued or issuable with respect to the securities referred to in clause (i)
above by way of dividend, distribution, split or combination of securities, or any
recapitalization, merger, consolidation or other reorganization, and (iii) other Common Stock held
by Persons holding securities described in clause (i) above.
(d) “Other Registrable Securities” means, (i) any Common Stock issued or distributed
to the Other Stockholders and (ii) common equity securities of the Company or a Subsidiary issued
or issuable with respect to the securities referred to in clause (i) above by way of
dividend, distribution, split or combination of securities, or any recapitalization, merger,
consolidation or other reorganization.
(e) “Person” means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, an investment fund, any other business entity and a governmental entity or any
department, agency or political subdivision thereof.
(f) “Registrable Securities” means the Investor Registrable Securities, the Executive
Registrable Securities and the Other Registrable Securities. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they (i) have been
distributed to the public pursuant to an offering registered under the Securities Act or sold to
the public through a broker, dealer, or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force), (ii) unless the respective Stockholder
otherwise elects, have been distributed to the limited partners of any of the Stockholder, (iii)
have been effectively registered under a registration statement including, without limitation, a
registration statement on Form S-8 (or any successor form), or (iv) have been repurchased by the
Company. In addition, all Registrable Securities held by any Person shall cease to be Registrable
Securities (provided that, for purposes of this provision, all Investors and all Registrable
Securities held by such Investors shall be treated as Registrable Securities held by a single
Person) when all such
- 12 -
Registrable Securities become eligible to be sold to the public through a broker, dealer, or
market maker pursuant to Rule 144 (or any similar provision then in force) during a single 90-day
period. For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise, but disregarding
any restrictions or limitations upon the exercise of such right), whether or not such acquisition
has actually been effected; provided that this sentence shall not apply to shares of the
common equity securities of the Company issuable upon the exercise of unvested options originally
issued to employees or former employees of the Company or its Subsidiaries.
(g) “Securities Act” means the Securities Act of 1933, as amended, or any successor
federal law then in force, together with all rules and regulations promulgated thereunder.
(h) “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended,
or any successor federal law then in force, together with all rules and regulations promulgated
thereunder.
(i) “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association, or business entity of which (i) if a corporation, a majority of
the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association, or other business entity (other
than a corporation) if such Person or Persons shall be allocated a majority of limited liability
company, partnership, association, or other business entity gains or losses or shall be or control
any managing director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a “Subsidiary”
of any Person shall be given effect only at such times that such Person has one or more
Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary
of the Company.
(j) Unless otherwise stated, other capitalized terms contained herein have the meanings set
forth in the Purchase Agreement.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities that is inconsistent with or violates the rights granted
to the holders of Registrable Securities in this Agreement.
- 13 -
(b) Adjustments Affecting Registrable Securities. The Company shall not take any
action, or permit any change to occur, with respect to its securities that would adversely affect
the ability of the holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or that would adversely affect the marketability
of such Registrable Securities in any such registration (including effecting a stock split or a
combination of shares).
(c) Remedies. Any Person having rights under any provision of this Agreement shall be
entitled to enforce such rights specifically, to recover damages caused by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement. Nothing contained in this Agreement shall be construed to confer
upon any Person who is not a signatory hereto any rights or benefits, whether as a third-party
beneficiary or otherwise.
(d) Amendments and Waivers. Except as otherwise provided herein, no modification,
amendment, or waiver of any provision of this Agreement shall be effective against the Company or
the holders of Registrable Securities unless such modification, amendment, or waiver is approved in
writing by GTCR or the Company, as the case may be, and the holders of a majority of the
Registrable Securities; provided that no such amendment or modification that would
materially and adversely affect holders of one class or group of Registrable Securities in a manner
different than holders of any other class or group of Registrable Securities, including the
Executive Registrable Securities, (other than amendments and modifications required to implement
the provisions of Section 8) shall be effective against the holders of such class or group
of Registrable Securities without the prior written consent of holders of at least a majority of
Registrable Securities of such class or group materially and adversely affected thereby. No
failure by any party to insist upon the strict performance of any covenant, duty, agreement, or
condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or any other covenant, duty, agreement, or condition.
(e) Successors and Assigns. All covenants and agreements 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. In addition, whether or
not any express assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Notwithstanding the foregoing, in
order to obtain the benefit of this Agreement, any subsequent holder of Registrable Securities
must execute a counterpart to this Agreement, thereby agreeing to be bound by the terms hereof.
(f) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under
- 14 -
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts (including by means of facsimile), any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute one and the same
Agreement.
(h) Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall include the
corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and
verbs shall include the plural and vice versa. The use of the word “including” in this
Agreement shall be, in each case, by way of example and without limitation. The use of the words
“or,” “either,” and “any” shall not be exclusive. Reference to any
agreement, document, or instrument means such agreement, document, or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof, and, if applicable,
hereof.
(i) Governing Law. The Delaware General Corporation Law shall govern all issues and
questions concerning the relative rights of the Company and its stockholders. All other issues and
questions concerning the construction, validity, interpretation, and enforcement of this Agreement
and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
(j) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR
INCIDENTAL TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Notices. All notices, demands, or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid), mailed to the recipient by certified or
- 15 -
registered mail, return receipt requested and postage prepaid or telecopied to the recipient
(with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that
same day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day, and otherwise on
the next business day. Such notices, demands, and other communications shall be sent to each
Investor, each Executive, and each Other Stockholder at the addresses indicated on the Schedule of
Holders and to the Company at the address of its corporate headquarters or to such other address or
to the attention of such other Person as the recipient party has specified by prior written notice
to the sending party.
(l) No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(m) Delivery by Facsimile. This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and respects as an original agreement
or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any party hereto or to any
such agreement or instrument, each other party hereto or thereto shall reexecute original forms
thereof and deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile
machine as a defense to the formation or enforceability of a contract and each such party forever
waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| CAPELLA HOLDINGS, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||
| Name: | ||||||
| Its: | Chief Executive Officer | |||||
| GTCR FUND VIII, L.P. | ||||||
| By: Its: |
GTCR Partners VIII, L.P.
|
|||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx
|
|||||
| Its: | ||||||
| GTCR FUND VIII/B, L.P. | ||||||
| By: Its: |
GTCR Partners VIII, L.P.
|
|||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx
|
|||||
| Its: | ||||||
| GTCR CO-INVEST II, L.P. | ||||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx
|
|||||
| Its: | ||||||
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
| /s/ Xxxxxx Xxxxxxxxxx | ||||||
| Xxxxxx Xxxxxxxxxx | ||||||
| /s/ Xxxxx Xxxxxx Xxxxxxxx | ||||||
| Xxxxx Xxxxxx Xxxxxxxx | ||||||
| /s/ Xxxxxx X. Xxxxx | ||||||
| Xxxxxx X. Xxxxx | ||||||
| /s/ Xxxxx Xxxxxx Xxxxxxx | ||||||
| Xxxxx Xxxxxx Xxxxxxx | ||||||
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF HOLDERS
Investors
GTCR Fund VIII, L.P.
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000Facsimile: (000) 000-0000
GTCR Fund VIII/B, L.P.
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000Facsimile: (000) 000-0000
GTCR Co-Invest II, L.P.
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
C/o GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000Facsimile: (000) 000-0000
Executives
Xxxxxx X. Xxxxxxxxxx
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxx
000 Xxxxxxx Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxx Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Other Stockholders
