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EXHIBIT 10.11
CORPORATE CHILD CARE, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement"), dated as of August 29,
1991 is between CORPORATE CHILD CARE, INC., a Tennessee corporation (the
"Corporation"), the persons and entities identified on Schedule I hereto
attached (the "New Investors"), the persons and entities identified on Schedule
II hereto attached (the "1988 Investors"), and the persons and entities
identified on Schedule III hereto attached (the "1991 Investors").
RECITALS
A. The Corporation and the 1988 Investors are parties to that certain
Securities Purchase Agreement dated as of April 29, 1988 and May 2, 1988 (the
"1988 Purchase Agreement") which granted such 1988 Investors certain securities
registration rights.
B. The Corporation and the 1991 Investors are parties to that certain
Securities Purchase and Exchange Agreement dated as of April 3, 1991 (the "1991
Purchase Agreement"), which granted such 1991 Investors certain securities
registration rights.
C. The New Investors have agreed to purchase shares of the Series A
Preferred Stock of the Corporation pursuant to that certain Series A Preferred
Stock Purchase Agreement dated of even date herewith (the "Series A Preferred
Stock Purchase Agreement"), provided that this Agreement is executed.
D. The Corporation, the 1988 Investors and the 1991 Investors deem it
desirable to enter into this Agreement in order to induce the New Investors to
purchase the Series A Preferred Shares pursuant to the Series A Preferred Stock
Purchase Agreement.
AGREEMENTS
In consideration of the recitals and the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. In addition to capitalized terms elsewhere defined
herein, as used in this Agreement:
"Commission" means the Securities and Exchange Commission.
"Common Registrable Shares" means at any time (i) any Common Shares or
Warrant Shares originally issued to the 1988 Investors (not including Common
Shares that are Preferred
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Registrable Shares); (ii) any Common Shares then outstanding which were issued
as, or were issued directly or indirectly upon the conversion or exercise of
other securities issued as, a dividend or other distribution with respect to or
in replacement of Common Registrable Shares (other than Warrant Shares); and
(iii) any Common Shares then issuable directly or indirectly upon the conversion
or exercise of other securities which were issued as a dividend or other
distribution with respect to or in replacement of Common Registrable Shares;
provided that Common Registrable Shares shall not include any shares which have
theretofore been registered and sold pursuant to the Securities Act or which
have been sold to the public pursuant to Rule 144 or any similar rule
promulgated by the Commission pursuant to the Securities Act. For purposes of
this Agreement, a Person will be deemed to be a holder of Common Registrable
Shares whenever such Person has the then-existing right to acquire such Common
Registrable Shares (by conversion, purchase or otherwise), whether or not such
acquisition has actually been effected.
"Common Shares" means the shares of Common Stock of the Corporation, no
Par value.
"Demand Registration" shall have the meaning ascribed thereto in
Section 2(a) of this Agreement.
"Initial Public Offering" means an underwritten initial offering
pursuant to an effective registration statement under the Securities Act
resulting in a sale by the Corporation of Common Shares to the public at an
aggregate offering price for the shares sold for the account of the Corporation
of at least ten million dollars ($10,000,000), with the per share price to the
public being not less than the lesser of (a) $10 per share (such amount to be
adjusted proportionately in the event the Common Shares are subdivided into a
greater number or combined into a lesser number) or (b) three times the then
current conversion price of the Series A Preferred Shares.
"1988 Investors" has the meaning set forth in the introductory
paragraph.
"1991 Investors" has the meaning set forth in the introductory
paragraph.
"Person" means a natural person, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political
subdivision thereof.
"Piggyback Registration" shall have the meaning ascribed thereto in
Section 3(a) of this Agreement.
"Preferred Registrable Shares" means at any time (i) any Common Shares
then outstanding which were issued upon conversion of Series A Preferred Shares;
(ii) any Common Shares then issuable upon conversion of Series A Preferred
Shares then outstanding; (iii) any Common Shares then outstanding which were
issued as, or were issued upon the conversion or exercise of other securities
issued as, a dividend or other distribution with respect to or in replacement of
Series A Preferred Shares or other Preferred Registrable Shares; and (iv) any
Common Shares then issuable
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upon the conversion or exercise of other securities which were issued as a
dividend or other distribution with respect to or in replacement of Series A
Preferred Shares or other Preferred Registrable Shares; provided that Preferred
Registrable Shares shall not include any shares which have theretofore been
registered and sold pursuant to the Securities Act or which have been sold to
the public pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act. For purposes of this Agreement, a
Person will be deemed to be a holder of Preferred Registrable Shares whenever
such Person has the then-existing right to acquire such Preferred Registrable
Shares (by conversion, purchase or otherwise), whether or not such acquisition
has actually been effected.
"Primary Registration" means the offer and sale by the Corporation for
its own account of securities registered under the Securities Act.
"1988 Purchase Agreement" has the meaning set forth in paragraph A of
the Recitals.
"1991 Purchase Agreement" has the meaning set forth in paragraph B of
the Recitals.
"Registrable Shares" means the Common Registrable Shares and Preferred
Registrable Shares.
"Registration Expenses" shall have the meaning ascribed thereto in
Section 6 of this Agreement.
"Secondary Registration" shall mean the offer and sale of securities to
the public by or on behalf of one or more of the holders of the Corporation's
securities pursuant to a registration statement filed by the Corporation with,
and declared effective by, the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Series A Preferred Shares" means the shares of Series A Preferred
Stock of the Corporation, no par value.
"Series A Preferred Stock Purchase Agreement" has the meaning set forth
in paragraph D of the Recitals.
"Short-Form Registration" has the meaning set forth in Section 2(a).
"Warrants" means those certain Warrants to purchase Common Shares
issued to the 1988 Investors pursuant to the 1988 Purchase Agreement.
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"Warrant Shares" means the Common Shares issued or issuable upon
exercise of the Warrants, whether or not such Warrants have been exercised.
2. Demand Registration and Short-Form Registration.
(a) At any time after 180 days after the effective date of any
registration statement the Corporation has filed under the Securities Act with
respect to any of its securities, the holder or holders of at least 662/3% of
Preferred Registrable Shares then outstanding may, by written notice delivered
to the Corporation, require registration under the Securities Act of all or part
of their Preferred Registrable Shares on Form S-1 or any similar long-form
registration ("Demand Registration"). The Corporation shall not be obligated to
effect more than one Demand Registration. A registration will not count as the
permitted Demand Registration until it has become effective and will not count
as the permitted Demand Registration unless the holders of Preferred Registrable
Shares initially requesting such Demand Registration are able to register and
sell at least 662/3% of the Preferred Registrable Shares agreed by such holders
to be included in such Demand Registration; provided that in any event the
Corporation will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration requested hereunder (unless the
holder or holders of Preferred Registrable Shares requesting such Demand
Registration request that the registration statement be withdrawn, in which
case, such holders of Preferred Registrable Shares shall pay such Registration
Expenses). On or after the date upon which the Corporation has become entitled
as a registrant to use Form S-3 or any similar short- form registration
("Short-Form Registration"), any holder or holders of Preferred Registrable
Shares may, at any time, require registration under the Securities Act of all or
any part of their Preferred Registrable Shares on a Short-Form Registration;
provided, however, that the aggregate offering value of the Preferred
Registrable Shares requested to be registered in any Short-Form Registration
must equal at least $1,000,000. Within ten days after receipt of any request
pursuant to this Section 2(a), the Corporation will give written notice of such
request to all other holders of Preferred Registrable Shares and will use its
best efforts to include in such registration all Preferred Registrable Shares
with respect to which the Corporation has received written requests for
inclusion therein within 15 days after the date the Corporation's notice is
received (or deemed received as provided in Section 19 hereof).
(b) The Corporation will have the right to preempt any Demand
Registration or Short-Form Registration with a Primary Registration by
delivering written notice of such intention to the holders of Preferred
Registrable Shares who have requested such Demand Registration or Short-Form
Registration within 15 days after the Corporation has received a request for
such registration. In the ensuing Primary Registration, the holders of
Registrable Shares will have such piggyback registration rights as are set forth
in Section 3 hereof. Upon the Corporation's preemption of a requested Demand
Registration, such requested registration will not count as the permitted Demand
Registration.
(c) If a Demand Registration or a Short-Form Registration
is an underwritten public offering and the managing underwriters advise the
Corporation in writing that in their
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opinion the number of Registrable Shares and other securities requested to be
included exceeds the number of Registrable Shares and other securities which can
successfully be sold in such offering without causing a diminution in the
offering price or otherwise adversely affecting the offering, the Corporation
will include in such registration, prior to the inclusion of any securities
which are not Preferred Registrable Shares, the number of Preferred Registrable
Shares requested to be included which in the opinion of such underwriters can
successfully be sold without causing a diminution in the offering price or
otherwise adversely affecting the offering, such Preferred Registrable Shares to
be taken pro rata from the respective holders of such Preferred Registrable
Shares on the basis of the number of Preferred Registrable Shares owned by such
holders, with further successive pro rata allocation among the holders of
Preferred Registrable Shares if any such holder of Preferred Registrable Shares
has requested the registration of less than all such Preferred Registrable
Shares it is entitled to register.
(d) The Corporation may postpone for up to three months the
filing or the effectiveness of a registration statement for a Demand
Registration or a Short-Form Registration if the Corporation reasonably
determines that such Demand Registration or Short-Form Registration would have
any material adverse effect upon the Corporation or any of its material assets
or operations or any material pending or proposed transaction.
3. Piggyback Registrations.
(a) Whenever the Corporation proposes to register any of its
securities under the Securities Act (except on Form S-4 or S-8 or any successor
form), the Corporation will give prompt written notice (in any event within
three business days after its receipt of notice of any exercise of Demand
Registration or Short-Form Registration rights) to all holders of Registrable
Shares of its intention to effect such a registration and will use its best
efforts to include in such registration all Registrable Shares with respect to
which the Corporation has received written requests for inclusion therein within
15 days after giving the Corporation notice (a "Piggyback Registration").
(b) If a Piggyback Registration is an underwritten Primary
Registration on behalf of the Corporation, and the managing underwriters advise
the Corporation in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can
successfully be sold in such offering without causing a diminution in the
offering price or otherwise adversely affecting the offering, the Corporation
will include in such registration, (i) first, the securities the Corporation
proposes to sell, and (ii) second, the Registrable Shares requested to be
included in such registration which in the opinion of such underwriters can
successfully be sold without causing a diminution in the offering price or
otherwise adversely affecting the offering, such Registrable Shares to be taken
pro rata from the holders of such Registrable Shares on the basis of the number
of Registrable Shares owned by such holders, with further successive pro rata
allocations among the holders of Registrable Shares if any such holder of
Registrable Shares has requested the registration of less than all such
Registrable
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Shares it is entitled to register, and (iii) third, other securities
requested to be included in such registration.
(c) If a Piggyback Registration is an underwritten Secondary
Registration on behalf of holders of the Corporation's securities, and the
managing underwriters advise the Corporation in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can successfully be sold in such offering, the Corporation will
include in such registration, (i) first, the Preferred Registrable Shares
requested to be included in such registration which in such opinion of such
underwriters can successfully be sold, such Preferred Registrable Shares to be
taken pro rata from the holders of such Preferred Registrable Shares on the
basis of the number of Preferred Registrable Shares owned or deemed to be owned
by such holders, with further successive pro rata allocations among the holders
of Preferred Registrable Shares if any such holder of Preferred Registrable
Shares has requested the registration of less than all such Preferred
Registrable Shares it is entitled to register, (ii) second, the Common
Registrable Shares requested to be included in such registration which in such
opinion of such underwriters can successfully be sold, such Common Registrable
Shares to be taken pro rata from the holders of such Common Registrable Shares
on the basis of the number of Common Registrable Shares owned or deemed to be
owned by such holders, with further successive pro rata allocations among the
holders of Common Registrable Shares if any such holder of Common Registrable
Shares has requested the registration of less than all such Common Registrable
Shares it is entitled to register, and (iii) other securities requested to be
included in such registration.
(d) If the Corporation has previously filed a registration
statement with respect to Registrable Shares pursuant to Section 2 or pursuant
to this Section 3, and if such previous registration has not been withdrawn or
abandoned, the Corporation shall not be required to 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-4 or 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 180 days has elapsed from the effective date of such previous
registration.
4. Holdback Agreements.
(a) Each holder of at least 5% of the Registrable Shares
agrees not to effect any public sale or distribution of equity securities of the
Corporation, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 90-day period
beginning on the effective date of any underwritten Demand Registration or
Short-Form Registration (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree
or otherwise require. Each holder of Registrable Shares agrees not to effect any
public sale or distribution of equity securities of the Corporation, or any
securities convertible into or exchangeable or exercisable for such securities
for such period beginning on the effective date of any underwritten Primary
Registration (except as part of such
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underwritten registration) as the holders of Registrable Shares and the
underwriters managing the registered public offering shall mutually agree.
(b) The Corporation agrees (i) not to effect any public sale
or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration, Short-Form Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) use its best
efforts to cause each holder of at least 5% (on a fully-diluted basis) of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, purchased from the Corporation 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 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.
5. Registration Procedures. Whenever the holders of Registrable
Shares have requested that any Registrable Shares be registered pursuant to this
Agreement, the Corporation will use its best efforts to effect the registration
and the sale of such Registrable Shares in accordance herewith and with the
intended method of disposition thereof, and pursuant thereto the Corporation
will as expeditiously as practicable:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best efforts to
cause such registration statement to become and remain effective for such
period, not to exceed three months, as may be reasonably necessary to effect the
sale of such securities:
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period, which need not exceed three months, 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 accordance herewith and with
the intended methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered 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 or underwriters may reasonably request
in order to facilitate the disposition of the Registrable Shares owned by such
seller or the sale of such securities by such underwriters; and
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(d) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdiction 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 to
consummate the disposition in such jurisdictions of the Registrable Shares owned
by such seller (provided, however, that the Corporation 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 subparagraph; (ii) consent to
general service of process in any such jurisdiction; or (iii) subject itself to
taxation in any such jurisdiction);
(e) use its best efforts to cause all such Registrable Shares
to be listed on each securities exchange on which similar securities issued by
the Corporation are then listed;
(f) provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
(g) enter into such customary agreements (including
underwriting agreements in customary form) as the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Shares (including, without limitation, effecting a stock split or a
combination of shares);
(h) make available for inspection by each seller of
Registrable Shares, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter who agrees to hold in confidence and
keep secret and inviolate, all financial and other records, pertinent corporate
documents and properties of the Corporation, and cause the Corporation's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(i) notify each seller of such Registrable Shares, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(j) notify each seller of such Registrable Shares of any
request by the Commission for the amending or supplementing of such registration
statement or prospectus or for additional information:
(k) prepare and file with the Commission, promptly upon the
request of any seller of such Registrable Shares, any amendments or supplements
to such registration statement or prospectus which, in the reasonable written
opinion of counsel selected by the holders of a majority of the Preferred
Registrable Shares being registered and concurred in by the reasonable opinion
of counsel for the Corporation, is required under the Securities Act or the
rules and regulations thereunder in connection with the distribution of
Registrable Shares by such seller;
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(l) prepare and promptly file with the Commission and promptly
notify each seller of such Registrable Shares of the filing of such amendment or
supplement to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act, any
event shall have occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading;
(m) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(n) at least forty-eight hours prior to the filing of any
registration statement or prospectus or twenty-four hours prior to the filing of
any amendment or supplement to such registration statement or prospectus,
furnish a copy thereof to each seller of such Registrable Shares and refrain
from filing any such registration statement, prospectus, amendment or supplement
to which counsel selected by the holders of a majority of the Preferred
Registrable Shares being registered shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or the rules and
regulations thereunder, unless, in the case of an amendment or supplement, in
the opinion of counsel for the Corporation the filing of such amendment or
supplement is reasonably necessary to protect the Corporation from any
liabilities under any applicable federal or state law and such filing will not
violate applicable laws; and
(o) at the request of counsel selected by the holders of a
majority of such Registrable Shares in connection with an underwritten offering,
use its best efforts to furnish on the date or dates provided for in the
underwriting agreement: (i) an opinion of counsel, addressed to the underwriters
and the sellers of Registrable Shares, covering such matters as such
underwriters and sellers may reasonably request, including, without limiting the
generality of the foregoing, opinions substantially to the effect that (A) such
registration statement has become effective under the Securities Act; (B) to the
best of such counsel's knowledge 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; (C) the registration
statement, the prospectus, and each amendment or supplement thereto 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 or other
financial or statistical data or information regarding the underwriters or the
selling shareholders contained therein); (D) while such counsel has not verified
the accuracy, completeness, or fairness of the statements contained in any
registration statement or prospectus, as either may be amended or supplemented,
nothing has come to such counsel's attention that
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would cause it to believe that the registration statement, the prospectus, or
any amendment or supplement thereto contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that such
counsel need express no opinion as to financial statements or other financial
or statistical data or information regarding the underwriters or the selling
shareholders contained therein); (E) the descriptions in the registration
statement, the prospectus, or any amendment or supplement thereto of all legal
and governmental proceedings and all contracts and other legal documents or
instruments are accurate in all material respects; and (F) while such counsel
has not verified the accuracy, completeness, or fairness of the statements
contained in any registration statement or prospectus, as either may be amended
or supplemented, such counsel does not know of any legal or governmental
proceedings, pending or threatened, required to be described in the
registration statement, the prospectus, or any amendment or supplement thereto
which are not described as required nor of any contracts or documents or
instruments of the character required to be described in the registration
statement, the prospectus, or any amendment or supplement thereto or to be
filed as described or filed as required; and (ii) a letter or letters from the
independent certified public accountants of the Corporation addressed to the
underwriters, covering such matters as such underwriters may reasonably
request, in which letters such accountants shall state, without limiting the
generality of the foregoing, that they are independent certified public
accountants within the meaning of the Securities Act and that in the opinion of
such accountants the financial statements and other financial data of the
Corporation included in the registration statement, the prospectus, or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act.
6. Registration Expenses.
(a) All expenses incident to the Corporation's performance of
or compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of the Corporation's independent certified public accountants,
legal counsel to the Corporation, underwriters (excluding discounts and
commissions attributable to the Registrable Shares included in such
registration) and other persons retained by the Corporation (all such expenses
being herein called "Registration Expenses"), will be borne by the Corporation.
In addition, the Corporation will pay all internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit or quarterly
review, the expense of any liability insurance obtained by the Corporation and
the expenses and fees for listing the securities to be registered on each
securities exchange on which any shares of Common Stock are then listed.
(b) In connection with each Demand Registration, Short-Form
Registration and Piggyback Registration effected pursuant to this Agreement in
which Registrable Shares are included, the Corporation will reimburse the
holders of Registrable Shares covered by such registration for the reasonable
fees and disbursements of one counsel chosen by the holders of a majority of the
Registrable Shares included in such registration.
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7. Indemnification.
(a) The Corporation agrees to indemnify, to the extent
permitted by law, each seller of Registrable Shares, its officers and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Securities Exchange Act) against all losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees except as limited by Section 7(e)) caused by any untrue or alleged untrue
statement of a material fact contained in any registration statement, prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same (i) are caused
by or contained in any information furnished in writing to the Corporation by
such seller expressly for use therein or (ii) caused by such seller's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Corporation has furnished such seller with a
sufficient number of copies of same and both (A) such delivery is required by
law and (B) such registration statement or prospectus or any amendments or
supplements thereto does not contain any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact. In connection
with an underwritten offering, the Corporation will indemnify such underwriters,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act or the Securities Exchange Act) to the
same extent as provided above with respect to the indemnification of the sellers
of Registrable Shares. The reimbursements required by this Section 7(a) will be
made by periodic payments during the course of the investigation or defense, as
and when bills are required or expenses incurred.
(b) The Corporation agrees to indemnify, to the extent
permitted by law, each seller of Registrable Shares, its officers and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Securities Exchange Act) against all losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees except as limited by Section 7(e)) caused by the breach by the Corporation
of any covenant or representation or warranty made by the Corporation in an
underwriting agreement.
(c) In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Corporation in writing such information and affidavits as the Corporation
reasonably requests for use in connection with any such registration statement
or prospectus or any amendment thereof or supplement thereto and, to the extent
permitted by law, will indemnify the Corporation, its directors and officers and
each Person who controls the Corporation (within the meaning of the Securities
Act or the Securities Exchange Act) against any losses, claims, damages,
liabilities and expenses (including, without limitation, attorneys' fees except
as limited by Section 7(c)) resulting from any untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any 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 contained in any information or affidavit so furnished in writing
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by such seller; provided that the obligation to indemnify will be several, not
joint and several, among such sellers of Registrable Shares, and the liability
of each such seller of Registrable Shares will be in proportion to, and provided
further that such liability will be limited to, the net amount received by such
seller from the sale of Registrable Shares pursuant to such registration
statement.
(d) Each seller of Registrable Shares agrees to indemnify, to
the extent permitted by law, the Corporation, its directors and officers and
each Person who controls the Corporation (within the meaning of the Securities
Act or the Securities Exchange Act) against any losses, claims, damages,
liabilities and expenses (including without limitation, attorneys' fees except
as limited by Section 7(e)) caused by the breach by such seller of a covenant or
representation or warranty made by such seller in an underwriting agreement;
provided, however, that each seller's obligation to indemnify will be several,
not joint and several among the sellers of Registrable Shares, and the liability
of each such seller of Registrable Shares in any event will be limited to the
net amount received by such Seller from the sale of Registrable Shares pursuant
to the registration agreement to which such underwriting agreement pertains.
(e) 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 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
satisfactory to the indemnified party. If such defense is assumed, 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.
(f) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Corporation also agrees to make such provisions as are reasonably requested by
any indemnified party for contribution to such party in the event the
corporation's indemnification is unavailable for any reason.
8. Compliance with Rule 144. In the event that the Corporation
(a) registers a class of securities under Section 12 of the Exchange Act, (b)
issues an offering circular meeting the requirements of Regulation A under the
Securities Act or (c) commences to file reports under Section 13 or 15(d) of the
Exchange Act, then at the request of any holder of Registrable Shares who
proposes to sell securities in compliance with Rule 144 promulgated by the
Commission, the Corporation will use its best efforts to (i) forthwith furnish
to such holder a written statement as to compliance with the filing
requirements of the Commission as set forth in Rule 144 as such rule
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may be amended from time to time and (ii) make available such information as
will enable the holders of Registrable Shares to make sales pursuant to
Rule 144.
9. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) 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 and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements. The holders of a
majority of the Preferred Registrable Shares requested to be registered will
have the right to select the managing underwriters of any offering of the
Corporation's securities in which the Corporation does not participate, subject
to the approval of the Executive Committee, and the Corporation will have such
right in any offering in which it participates.
10. No Inconsistent Agreements. The Corporation will not hereafter
enter into any agreements with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Shares entitled to be
registered in this Agreement. The Corporation shall not issue to any stockholder
any piggyback registration rights equal or superior to those of the holders of
Preferred Registrable Shares, without the written consent of the holders of a
majority of the Preferred Registrable Shares (piggyback registration rights
shall be deemed equal or superior to those of the holders of Preferred
Registrable Shares if they adversely affect the rights of the holders of
Preferred Registrable Shares hereunder).
11. Adjustments Affecting Registrable Shares. The Corporation will
not take any action affecting or otherwise cause or permit any change to occur,
in, its authorized, issued and outstanding capital stock which would adversely
affect the ability of the holders of Registrable Shares to include such
Registrable Shares in a registration undertaken pursuant to this Agreement or
which would adversely affect the marketability of such Registrable Shares in any
such registration (including, without limitation, effecting a stock split or a
combination of shares).
12. Remedies. Any Person having rights under any provision of this
Agreement will 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.
13. Amendments and Waivers. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or waived at any time
only by the written agreement of the Corporation, the holders of not less than a
majority of the Preferred Registrable Shares and the holders of not less than a
majority of the Common Registrable Shares.
14. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto, whether so
expressed or not. In addition, and whether or not any express assignment has
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been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Shares are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Shares who consents
in writing to be bound by this Agreement.
15. Entire Agreement. This Agreement constitutes the entire
agreement of the parties covering the matters referred to herein, and supersedes
all prior agreements and understandings, including without limitation, Section
5.9 and Schedule 5.9 of the 1988 Purchase Agreement and Section 5.4 of the 1991
Purchase Agreement.
16. Severability. Whenever possible, each provision of this
Agreement will 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 prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
17. Term. This Agreement shall terminate five years after the
effective date of the Initial Public Offering.
18. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
19. Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier services to the addresses
set forth below, or to such other address as any party hereto designates by
written notice to the other parties given in accordance herewith, and shall be
deemed to have been received: (i) upon delivery, when delivered personally; (ii)
three business days after mailing, if mailed; or (iii) one business day after
timely delivery to the courier, if delivered by overnight courier service.
If to the Corporation, to:
Corporate Child Care, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
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with a copy to:
Bass, Xxxxx & Xxxx
First American Center
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, III
If to holders of Series A Preferred Shares, to their respective
addresses set forth on the stock record books of the Corporation.
If to the other stockholders, to their respective addresses set forth
on the stock record books of the Corporation.
20. Governing Law. The validity, meaning and effect of this \
Agreement shall be determined in accordance with the laws of the State of
Tennessee applicable to contracts made and to be performed within that state.
21. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute one
instrument.
The parties hereto have executed this Registration Agreement as of the
date first set forth above.
CORPORATE CHILD CARE, INC.
By: /s/ Xxxxxxxxxx X. Xxxxxx
----------------------------------------
Its: President & CEO
----------------------------------------
FRONTENAC VENTURE V LIMITED
PARTNERSHIP
By: Frontenac Company
its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
a general partner
TRINITY VENTURES II, L.P.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxxx,
General Partner
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TRINITY VENTURES III, L. P.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxxxx,
General Partner
TRINITY SIDE-BY-SIDE FUND I,L.P.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxxxx,
General Partner
DOMINION CAPITAL MARKETS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx,
President
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XXXXXX XXXXX VENTURE INVESTORS
By: Gibraltar Partners, Ltd.
General Partner
By: Apache Venture Partners
General Partners
By: /s/ E. Xxxxxx Xxxxxx
---------------------------------------
Partner
THE CENTRAL CONFEDERATE VENTURE
FUND LIMITED PARTNERSHIP
By: MB Investment Management, Inc.
Co-Investment Manager
By: /s/ Xxx XxXxxxxx
---------------------------------------
Title: Vice President
--------------------------------
By: /s/ E. Xxxxxx Xxxxxx
---------------------------------------
Title: Vice President
------------------------------
By: Jamestown Investment Managers
(Bermuda) Limited
By: /s/ E. Xxxxxx Xxxxxx
---------------------------------------
Attorney-in-Fact
By: United Finance Management Limited
By: /s/ E. Xxxxxx Xxxxxx
---------------------------------------
Attorney-in-Fact
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THE VALLEY VENTURE FUND LIMITED
PARTNERSHIP
By: Xxxxxx Xxxxx Venture Group, Inc.,
General Partner
By: /s/ Xxx XxXxxxxx
---------------------------------------
Title: Vice President
--------------------------------
By: /s/ E. Xxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------
WC INVESTMENTS
By: /s/ Xxxxxxx X. Xxxxxx, III
---------------------------------------
Its:
---------------------------------------
/s/ Xxxxxx X. Xxxxxxxx, III
-------------------------------------------
Xxxxxx X. Xxxxxxxx, III
XXXXXX CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxxx, Vice President
---------------------------------------
Its:Xxxxxx Capital Investment Corp.,
---------------------------------------
its Managing General Partner
FIRST AMERICAN CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Its:/s/ Senior Vice President and Treasurer
---------------------------------------
/s/ Xxxx X. Xxxx
---------------------------------------
Xxxx Xxxx
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SCHEDULE I
NEW INVESTORS
Frontenac Venture V
Xxxxxx Xxxxx Venture Investors
The Central Confederate Venture Fund Limited Partnership
The Valley Venture Fund Limited Partnership
Trinity Ventures II, L.P.
Trinity Ventures, III, L.P.
Trinity Side-By-Side Fund I, L.P.
Dominion Capital Markets Corporation
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SCHEDULE II
1988 INVESTORS
The Central Confederate Venture Fund Limited Partnership
WC Investments
Xxxxxx X. Xxxxxxxx, III
The Valley Venture Fund Limited Partnership
Xxxxxx Capital Partners, X.X.
Xxxxxx Xxxxx Venture Investors
First American Corporation
Xxxx Xxxx
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SCHEDULE III
1991 INVESTORS
Xxxxxx Xxxxx Venture Investors
The Central Confederate Venture Fund Limited Partnership
The Valley Venture Fund Limited Partnership
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