REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, made as of the eighth day of January, 1996,
by and among AMERICAN DENTAL PARTNERS, INC., a Delaware corporation (the
"Company"), and those persons set forth on Schedule 1 as Investors (each an
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"Investor" and collectively the "Investors").
WHEREAS, the Investors have acquired or pursuant to Subscription Agreements
of even date are acquiring shares of common stock, par $.01 per share ("Common
Stock") of the Company, and pursuant to a certain Series A and Series B
Preferred Stock Agreement of even date, may acquire up to four hundred thousand
shares of Series A Convertible Preferred Stock which are convertible into shares
of Common Stock; and
WHEREAS, it is a condition to the obligations of the Investors to purchase
the Common Stock and Series A Convertible Preferred Stock that this Agreement be
executed by the parties hereto in order to provide the Investors with certain
registration rights with respect to the shares of Common Stock being purchased
by the Investors and the shares of Common Stock issuable upon conversion of the
Series A Convertible Preferred Stock to be purchased by the Investors, and the
parties are willing to execute this Agreement and to be bound by the provisions
hereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Certain Definitions. Capitalized terms used in this Agreement without
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definition shall have the meaning given to those terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following respective meanings:
"Act" means the Securities Act of 1933, as amended, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holder" means the person who is then the record owner of Registrable
Securities which have not been sold to the public.
"IPO Date" means the date on which shares of Common Stock shall have been
sold pursuant to a public offering (including without limitation one for the
assets or securities of other companies) pursuant to a registration statement
under the Act.
"Registrable Securities" means all shares of Common Stock now owned or
hereafter acquired by any Investor, including without limitation those issuable
upon conversion of Series A Convertible Preferred Stock.
The term "register" means to register under the Act and applicable state
securities laws for the purpose of effecting a public sale of securities.
"Registration Expenses" means all expenses incurred by the Company in
compliance with Sections 2, 3 or 5 hereof, including, without limitation, all
registration and filing fees, printing expenses, transfer taxes, fees and
disbursements of counsel for the Company, blue-sky fees and expenses, fees of
transfer agents and registrars, reasonable fees and disbursements of one counsel
for all the selling Holders, and the expense of any special audits incident to
or required by any such registration.
"Selling Expenses" means all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and any transfer taxes
applicable to such sales.
2. Requested Registrations
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(a) If (i) on any two occasions at any time after the date hereof,
the Company shall receive from one or more Investors a written request that the
Company effect the registration of Registrable Securities with a reasonably
anticipated aggregate price to the public of at least $20,000,000, and an
anticipated offering price to the public of at least twice the then Applicable
Conversion Value of the Series A Convertible Preferred Stock, which Investors
must, prior to consummation of the first registration of securities of the
Company under the Act, include Summit Ventures IV, L.P., or (ii) on any one
occasion during each calendar year which the Company is eligible to register the
sale of shares of Common Stock to the public under the Act on Form S-3, the
Company shall receive from one or more Holders of Registrable Securities a
written request that the Company effect the registration of Registrable
Securities held by such Holders having a fair market value as of the date of
such request of $1,000,000, the Company will:
(A) promptly give written notice of the proposed registration to
all other Holders; and
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(B) as soon as reasonably practicable, use all commercially
reasonable efforts to effect such registration as may be so requested and
as would permit or facilitate the sale and distribution of such portion of
such Registrable Securities as are specified in such request, together with
such portion of the Registrable Securities of any Holder or Holders joining
in such request as are specified in a written request given within twenty
(20) days after receipt of such written notice from the Company. If the
underwriter managing the offering advises the Holders who have requested
inclusion of their Registrable Securities in such registration that
marketing considerations require a limitation on the number of shares
offered, such limitation shall be imposed pro rata among such Holders who
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requested inclusion of Registrable Securities in such registration pursuant
to this Section 2 or Section 3 below according to the number of Registrable
Securities requested to be registered by such Holders. No registration
initiated by the Holders hereunder shall count as a registration under this
Section 2 unless and until it shall have been declared effective and the
Holders shall have sold all of the Registrable Securities included in such
registration.
(b) Selection of Underwriter. The underwriter of any underwriting
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requested under this Section 2 shall be selected by the Company.
3. "Piggy Back" Registrations.
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(a) If the Company shall determine to register any of its securities,
either for its own account or the account of a security holder or holders
exercising registration rights or otherwise (other than a registration relating
solely to a merger, acquisition of assets or securities or tender or exchange
offer, or to employee benefit plans or a registration on any registration form
which does not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities), the Company will:
(i) Promptly give to each Holder of Registrable Securities written
notice thereof (which shall include the number of shares the Company or
other security holder proposes to register and, if known, the name of the
proposed underwriter).
(ii) Use all commercially reasonable efforts to include in such
registration all the Registrable Securities specified in a written request
or requests made by any Holder within fifteen (15) days after the date of
delivery of the written notice from the Company described in clause (i)
above. If the underwriter advises the Company that marketing considerations
require a limitation on the number of shares offered pursuant to any
registration statement, then the Company may offer all of the securities it
proposes to register for its own account and such limitation on any
remaining securities that may, in the opinion of the underwriter, be sold
will be imposed pro rata among the Holders who
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requested inclusion of Registrable Securities in such registration
according to the number of Registrable Securities requested to be
registered by each of them.
(b) The Company shall select the underwriter for an offering
made pursuant to this Section 3.
4. Expenses of Registration. All Registration Expenses incurred
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in connection with any registration, qualification or compliance pursuant to
Section 2, 3, or 5 shall be paid by the Company. All Selling Expenses incurred
in connection with any such registration, qualification or compliance shall be
borne by the holders of the Registrable Securities registered, pro rata on the
basis of the number of their Registrable Securities so registered.
5. Listing Application. If shares of any class of stock of the Company
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shall be listed on a national securities exchange or approved for quotation on
any over-the-counter market system, the Company shall, at its expense, include
in its listing application all of the shares of the listed class then owned by
any Holder.
6. Registration Procedures. In the case of each registration effected by
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the Company pursuant to this Agreement, the Company will keep each Holder of
Registrable Securities included in such registration advised in writing as to
the initiation of each registration and as to the completion thereof. At its
expense, the Company will do the following for the benefit of such Holders:
(a) Keep such registration effective for a period of one hundred
twenty days (120) or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs, and amend or supplement such registration statement and the prospectus
contained therein from time to time to the extent necessary to comply with the
Act and applicable state securities laws;
(b) Use all commercially reasonable efforts to register or qualify
the Registrable Securities covered by such registration under the applicable
securities or "blue sky" laws of such jurisdictions as the selling Holders may
reasonably request; provided, that the Company shall not be obligated to qualify
to do business in any jurisdiction where it is not then so qualified or
otherwise required to be so qualified or to take any action which would subject
it to the service of process in suits other than those arising out of such
registration or which would subject it to taxation in such jurisdiction;
(c) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
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(d) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2 hereof, the Company will
enter into an underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and is entered into by the Holders and
provided further that, if the underwriter so requests, the underwriting
agreement will contain customary indemnification and contribution provisions on
the part of the Company and the Holders;
(e) To the extent then permitted under applicable professional
guidelines and standards, use all reasonable efforts to obtain a comfort letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters and an opinion
from the Company's counsel in customary form and covering such matters of the
type customarily covered in a public issuance of securities and provide copies
thereof to the Holders; and
(f) Permit the counsel to the selling Holders whose expenses are
being paid pursuant to Section 4 hereof to participate in the registration
statement preparation process and to inspect and copy such corporate documents
as he may reasonably request.
7. Indemnification.
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(a) The Company will, and hereby does, indemnify each Holder, each of
its officers, directors and partners, and each person controlling such Holder
within the meaning of the Act, with respect to which registration, qualification
or compliance has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls such underwriter within the
meaning of the Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) prepared by the Company incident to any
such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein (in light of the circumstances under
which they were made, in the case of any prospectus) not misleading, or any
violation by the Company of the Act or the Exchange Act or securities act of any
state or any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, whether or not resulting in any liability, provided that
the Company
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will not be liable in any such case to the extent that: (i) any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement (or alleged untrue statement) or omission (or alleged omission) based
upon written information furnished to the Company by such Holder or underwriter
expressly for use therein; or (ii) in the case of a sale directly by a Holder
(including without limitation a sale through any underwriter retained by such
Holder), it arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission that was contained in a preliminary
prospectus or other preliminary document and corrected in a final or amended
prospectus or other document and such Holder failed to deliver a copy of the
final or amended document at or prior to the confirmation of the sale of the
applicable securities to the person asserting such claim, loss, damage,
liability, or action.
(b) Each Holder will, if Registrable Securities held by him are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of the Act and the rules and regulations
thereunder, each other such Holder and each of their officers, directors and
partners, and each person controlling such Holder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not (in light of the circumstances under which they were made, in the
case of any prospectus) misleading, and will reimburse the Company and such
Holder's directors, officers, partners, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
whether or not resulting in liability, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of each
Holder hereunder shall be limited to an amount equal to the net proceeds
received by such Holder upon sale of his securities.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this Section 7 (except and to the
extent the Indemnifying Party has been prejudiced as a consequence thereof).
The Indemnifying Party will be entitled to participate in, and to the extent
that it may elect by written
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notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, at its expense to assume, the defense of any
such claim or any litigation resulting therefrom, with counsel reasonably
satisfactory to such Indemnified Party, provided that the Indemnified Party may
participate in such defense at its expense, notwithstanding the assumption of
such defense by the Indemnifying Party, and provided, further, that if the
defendants in any such action shall include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it and/or other Indemnified
Parties which are different from or additional to those available to the
Indemnifying Party, the Indemnified Party or Parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
Parties and the fees and expenses of such counsel shall be paid by the
Indemnifying Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party (which
consent shall not be unreasonably withheld, delayed or conditioned), consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall (i) furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom and (ii) shall reasonably assist
the Indemnifying Party in any such defense, provided that the Indemnified Party
shall not be required to expend its funds in connection with such assistance.
(d) No Holder shall be required to participate in a registration
pursuant to which it would be required to execute an underwriting agreement in
connection with a registration effected under Section 2 or 3 which imposes
indemnification obligations on such Holder more onerous than those imposed
hereunder; provided, however, that the Company shall not be deemed to breach the
provisions of Section 2 or 3 if a Holder is not permitted to participate in a
registration on account of his refusal to execute an underwriting agreement on
the basis of this subsection (d).
8. Information by Holder. Each Holder of Registrable Securities included
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in any registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Agreement
or otherwise required by applicable state or federal securities laws.
9. Limitations on Registration Rights. From and after the date of this
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Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the outstanding Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the Company
which would give any such holder or prospective holder
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(a) the right to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities owned by such holder, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of its securities will
not limit the number of Registrable Securities sought to be included by the
Holders of Registrable Securities or reduce the offering price thereof; or (b)
the right to require the Company to initiate any registration of any securities
of the Company.
10. Exception to Registration. The Company shall not be required to
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effect a registration under this Agreement if (i) in the written opinion of
counsel for the Company, which counsel and the opinion so rendered shall be
reasonably acceptable to the Holders of Registrable Securities, such Holders may
sell without registration under the Act all Registrable Securities for which
they requested registration under the provisions of the Act and in the manner
and in the quantity in which the Registrable Securities were proposed to be
sold, or (ii) the Company shall have obtained from the Commission a "no-action"
letter to that effect; provided that this Section 10 shall not apply to sales
made under Rule 144(k) or any successor rule promulgated by the Commission until
after the effective date of the Company's initial registration of shares under
the Act. Notwithstanding the foregoing, in no event shall the provisions of
this Section 10 be construed to preclude a Holder of Registrable Securities from
exercising rights under Section 3 for a period of three years after the
effective date of the Company's initial registration of shares under the Act.
11. Rule 144 Reporting. With a view to making available the benefits
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of certain rules and regulations of the Commission which may permit the sale of
restricted securities (as that term is used in Rule 144 under the Act) to the
public without registration, the Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Act, at all times from and after
ninety days following the effective date of the first registration under the Act
filed by the Company for an offering of its securities to the general public;
(b) use all commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and
(c) so long as a Holder owns any restricted securities, furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after ninety days following the effective date of the first registration
statement filed by the Company for an offering of its
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securities to the general public), and of the Act and Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
12. Damages. The Company and the Investors recognize and agree that they
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may not have an adequate remedy if any of them fails to comply with the
provisions of this Agreement, and that damages will not be readily
ascertainable, and each of them expressly agrees that in the event of such
failure the other parties shall be entitled to seek specific performance of the
defaulting party's obligations hereunder.
13. Restrictions on Transfer. Each Holder of Registrable Securities who
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seeks to include such Registrable Securities in a registration pursuant to this
Agreement shall, if so requested by the underwriters who are managing such
offering, as a condition precedent to including Registrable Securities in such
offering, execute an agreement on usual and customary terms pursuant to which
such Holder agrees not to sell or otherwise transfer Registrable Securities
(except pursuant to such offering) for such period of time following the
consummation of such offering as such underwriters may reasonably request;
provided, however that such period shall not exceed 120 days in the case of the
first offering of securities of the Company or 90 days in the case of any
subsequent offering of such securities.
14. Representations and Warranties of the Company. The Company
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represents and warrants to the Investors as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and does not
violate any provision of law applicable to the Company, any order of any court
or other agency of government applicable to the Company, the Articles of
Organization or By-laws of the Company or any provision of any indenture,
agreement or other instrument to which it or any or its properties or assets is
bound, conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument or result in the creation, except for any such violation, conflict,
breach, or default which would not have a material adverse effect on the
Company, or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the material properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other laws of general
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applicability affecting the enforcement of creditors' or secured parties' rights
or debtors' obligations generally, (B) the availability of specific performance
or other equitable remedies may be limited by equitable principles of general
applicability (whether such matter is considered in a proceeding at law or in
equity); and (C) the indemnification and contribution provisions with respect to
securities law matters may be limited by applicable securities laws or
principles of public policy.
15. Miscellaneous.
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(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Registrable Securities), whether or not so
expressed.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by certified or registered mail, return
receipt requested, postage prepaid, or telecopied or sent by other facsimile
method addressed as follows:
If to the Company or any Investor, at the address of such party set
forth on Schedule I hereto or the most recent address as is shown on the
stock records of the Company; and
If to any subsequent Holder of Registrable Securities, to it at such
address as may have been furnished to the Company in writing by such
Holder; or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a Holder of
Registrable Securities) or to the Holders of Registrable Securities (in the
case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the conflict of laws
provisions thereof.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least a majority of the outstanding Registrable Securities; provided,
however that if any amendment adversely affects any Investor, such amendment
shall also require the consent of all Holders.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(g) One or more persons who acquire shares of Common Stock after the
date hereof may become parties to this Agreement by executing a counterpart of
this Agreement, in which case the name and address of each such person shall be
added to Schedule 1.
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(h) If pursuant to Section 1.6 of the Series A and Series B Preferred
Stock Purchase Agreement of even date among the parties to this Agreement (the
"Stock Purchase Agreement"), Purchasers (as defined in the Stock Purchase
Agreement) terminate their commitment to purchase Purchased Shares (as defined
in the Stock Purchase Agreement), and Xxxxxxx X. Xxxxxx purchases, or causes the
Company to purchase, all capital stock of the Company owned by Purchasers other
than himself, then the Company may terminate this Agreement at any time
thereafter upon notice to the other parties.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
COMPANY:
AMERICAN DENTAL PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
INVESTORS:
SUMMIT VENTURES IV, L.P.
By: Summit Partners, IV,
L.P.,
Its General Partner
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By: Stamps, Xxxxxxx & Co. IV,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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General Partner
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
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Authorized Signatory
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
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This is an amendment made effective November 1, 1996, to the Registration
Rights Agreement dated January 8, 1996 (the "Agreement"), among American Dental
Partners, Inc., a Delaware corporation (the "Company"), and Summit Ventures, IV,
L.P., Summit Investors III, L.P., Noro-Xxxxxxx Partners III, L.P., Xxxxxxx X.
Xxxxxx ("Xx. Xxxxxx"), Xxxxxx X. Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxx, M. Xxxxxx
XxXxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, F&F L.L.C., Xxxxxx X. Xxxxxxxx, Xxxx X.
Xxxxxx, and Xxxxx & Xxxxx, Inc. (the "Investors").
Background Information
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The Company anticipates that it will agree to provide certain registration
rights to persons who are issued Common Stock (as defined in the Agreement) in
connection with acquisitions the Company completes from time to time.
Notwithstanding the Agreement, the Company may agree to provide registration
rights to other persons, provided that such agreement does not violate Section 9
of the Agreement or is approved by Investors who hold a majority of the
outstanding Registrable Securities, as that term is defined in the Agreement (an
"Investor Majority"). In addition, Section 15(g) of the Agreement provides that
persons who acquire shares of Common Stock (as defined in the Agreement) after
the date of the Agreement can become parties to the Agreement by executing a
counterpart of the Agreement. However, the registration rights which the Company
agrees to provide to others are likely to be less extensive or otherwise
different than the rights of the Investors, and the Company believes that it may
not be in the best interests of the Company or the Investors to permit such
other persons to become parties to the Agreement. Accordingly, the Parties
desire to amend the Agreement to coordinate more effectively the Investors'
registration rights with registration rights which the Company may hereafter
agree to provide, consistent with the Agreement, as amended by this amendment.
Statement of Agreement
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The Parties hereby acknowledge the foregoing Background Information and
agree as follows:
1. For purposes of the Agreement and this amendment: (a) the term
"Holder" shall mean a person who is then a record owner of Registrable
Securities; and (b) the term "Registrable Securities" shall mean shares of
Common Stock which have not been previously registered for sale under the Act,
including without limitation those issuable upon conversion of the Company's
Series A Convertible Preferred Stock. Such definitions shall supersede the
definitions of such terms contained in the Agreement.
All other capitalized terms used in this amendment which are not otherwise
defined herein shall have the respective meanings given those terms in the
Agreement.
2. The Company may hereafter grant registration rights relating to
Common Stock pursuant to any agreement approved by an Investor Majority (an
"Approved Agreement"). The approval of an Investor Majority under the preceding
sentence may be evidenced (i) by one or more documents executed by the Investor
Majority, (ii) by the affirmative vote, consent, or approval of the members of
the Company's board of directors (the "Board") who are Investors or who are
appointed by the Investors pursuant to Section 6(a) of the Shareholders'
Agreement dated January 8, 1996, among the Company and the Investors, whether
such vote, consent, or approval is taken or given at a meeting of the Board or
in written action taken by the Board, or (iii) some combination of the
foregoing. The provisions of Sections 2(a)(ii)(B) and 3(a)(ii) of the Agreement
relating to limitations on the number of shares offered pursuant to a
registration will be imposed pro rata among all Holders who request inclusion of
Registrable Securities in such registration under the Agreement or an Approved
Agreement, in proportion to the number of Registrable Securities so requested to
be registered by such Holders, respectively.
3. Pursuant to Section 15(d) of the Agreement, this amendment shall be
effective when executed by the Company and by Parties constituting an Investor
Majority.
4. This is an amendment to and a part of the Agreement. In the event of
any inconsistencies between provisions of the Agreement and this amendment, the
provisions of this amendment shall control. Except as modified by this
amendment, the Agreement shall continue in full force and effect without change.
5. This amendment shall be binding upon, inure to the benefit of, and be
enforceable by and against the respective heirs, personal representatives,
successors, and assigns of each Party.
6. This amendment may be executed in multiple counterparts, each of which
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
AMERICAN DENTAL PARTNERS, INC. SUMMIT VENTURES IV, L.P.
By Summit Partners IV., L.P.,
General Partner
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------ --------------------------------
Xxxxxxx X. Xxxxxx, President Printed Name Xxxxxx X. Xxxxxxx
----------------------
Title General Partner
-----------------------------
SUMMIT INVESTORS III, L.P. By Stamps, Xxxxxxx & Co. IV,
General Partner
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------ --------------------------------
Printed Name Xxxxxx X. Xxxxxxx Printed Name Xxxxxx X. Xxxxxxx
-------------------- ----------------------
Title General Partner Title General Partner
--------------------------- -----------------------------
[Signatures continued on next page]
NORO-XXXXXXX PARTNERS, III, L.P. F&F, L.L.C.
By Xxxxxxx & Company, III,
L.L.C., General Partner By
----------------------------------
Printed Name
------------------------
By Title
---------------------------- --------------------------------
Printed Name
-------------------
Title
--------------------------
XXXXX & XXXXX, INC. /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
By XXXXXXX X. XXXXXX
----------------------------
Printed Name /s/ Xxxxxx X. Xxxxxx
------------------- --------------------------------------
Title XXXXXX X. XXXXXX
--------------------------
/s/ M. Xxxxxx XxXxx /s/ Xxxxxx Xxxxx
-------------------------------- --------------------------------------
M. XXXXXX XxXXX XXXXXX XXXXX
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
-------------------------------- --------------------------------------
XXXXXX XXXXXXX XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- --------------------------------------
XXXXXXX XXXXXX XXXXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxx
--------------------------------------
XXXX X. XXXXXX
