FORM OF REGISTRATION RIGHTS AGREEMENT by and among STAFFMARK HOLDINGS, INC. and CERTAIN STOCKHOLDERS Dated as of ___________ __, 2011
Exhibit 4.4
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
by and among
and
CERTAIN STOCKHOLDERS
Dated as of ___________ __, 2011
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the ___ day of
___________, 2011, by and among: Staffmark Holdings, Inc., a Delaware corporation (the “Company”),
and each of the undersigned parties listed under “Stockholders” on the signature page or any
joinder hereto (each a “Stockholder” and, collectively, the “Stockholders”). Each party hereto
shall be referred to as, individually, a “Party” and, collectively, the “Parties.”
WHEREAS, the Company has issued shares of common stock, par value $0.001 per share to each
Stockholder;
WHEREAS, each Stockholder holds as of the date hereof (or contemporaneously herewith is
acquiring) that number of Shares set beside its name on Schedule A hereto (collectively, the
“Restricted Shares,” as further defined herein);
WHEREAS, the parties hereto desire to enter into this Agreement to provide the Stockholders
with certain rights relating to the registration of the Restricted Shares;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise noted, for all purposes of this Agreement, the following
terms shall have the respective meanings set forth in this Agreement, which meanings shall apply
equally to the singular and plural forms of the terms so defined and the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a whole. The
following capitalized terms used herein have the following meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act;
provided that no Stockholder shall be deemed an Affiliate of any other Stockholder solely by reason
of any investment in the Company.
A Person shall be deemed to “Beneficially Own” securities if such Person is deemed to be a
“beneficial owner” within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect
on the date of this Agreement.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banks in the
City of New York are required, permitted or authorized, by applicable law or executive order, to be
closed for regular banking business.
“Bylaws” shall mean the bylaws of the Company, as may be amended and/or restated from time to
time.
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“Certificate of Incorporation” shall mean the certificate of incorporation of the Company, as
may be amended and/or restated from time to time.
“Commission” means the Securities and Exchange Commission, or such successor federal agency or
agencies as may be established in lieu thereof.
“Company” is defined in the preamble to this Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Indemnifying Party” is defined in Section 4.3.
“Initial Public Offering” shall mean the initial public offering of Shares pursuant to an
effective registration statement under Securities Act.
“Maximum Number of Shares” is defined in Section 2.2.2.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Prospectus” means a prospectus relating to a Registration Statement, as amended or
supplemented, and all materials incorporated by reference in such Prospectus.
“Permitted Transferee” shall mean, with respect to each Stockholder, (i) any other
Stockholder, (ii) such Stockholder’s Affiliates, (iii) any manager, member or general or limited
partner of such Stockholder (including, without limitation, any member of such Stockholder), (iv)
any corporation, partnership, limited liability company or other entity that is an Affiliate of
such Stockholder or any manager, general or limited partner of such Stockholder (collectively
“Stockholder Affiliates”), (v) any general partner, director, limited partner, officer or employee
of any Stockholder Affiliate, or any spouse, lineal descendent (including lineal descendents by
adoption), sibling, parent, heir, executor, administrator, testamentary trustee, legatee or
beneficiary of any of the foregoing persons described in this clause (v) (collectively “Stockholder
Associates”) or (vi) any trust, the beneficiaries of which, or any corporation, limited liability
company or partnership, the stockholders, members or general or limited partners of which, consist
of any one or more of such Stockholder, any general or limited partner of such Stockholder, any
Stockholder Affiliates, any Stockholder Associates, their spouses or their lineal descendents
(including lineal descendents by adoption).
“Public Offering” shall mean an offering of equity securities of the Company pursuant to an
effective registration statement under the Securities Act, including an offering in which
Stockholders are entitled to sell Common Stock pursuant to the terms of this Agreement, other than
the Initial Public Offering.
“Register,” “registered,” and “registration” mean a registration effected by preparing and
filing a registration statement or similar document under the Securities Act and such registration
statement becoming effective.
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“Registrable Amount” shall mean an amount of Shares equal to 1% of the Shares issued and
outstanding immediately after the consummation of the Initial Public Offering.
“Registration Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of Shares (other than a registration statement on Form
S-4 or Form S-8, or their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another entity).
“Restricted Shares” means all of the Shares owned or held by a Stockholder or its Permitted
Transferees; provided, that such Shares shall cease to be Restricted Shares when: (a) a
Registration Statement with respect to the sale of such Restricted Shares shall have become
effective under the Securities Act (as defined below) and such Restricted Shares shall have been
sold, transferred, disposed of, or exchanged in accordance with such Registration Statement; (b)
such Restricted Shares shall have been otherwise transferred pursuant to Rule 144 of the Securities
Act (or any successor provisions), and new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent public distribution of
them shall not require registration under the Securities Act or such Restricted Securities are
saleable without condition pursuant to Rule 144(b)(1)(i) of the Securities Act; or (c) such
Restricted Shares shall have ceased to be outstanding.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Stockholder” is defined in the preamble to this Agreement.
“Stockholder Indemnified Party” is defined in Section 4.1.
“Shares” means the shares of common stock of the Company, par value $0.001 per share.
“Underwriter” means a securities dealer who purchases any Restricted Shares as principal in an
underwritten offering and not as part of such dealer’s market-making activities.
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2. REGISTRATION RIGHTS.
2.1 Mandatory Shelf Registration.
2.1.1 Filing of Shelf Registration Statement. Unless a Registration Statement with
respect to a Piggy-Back Registration covering the resale of all of the Restricted Shares has been
sooner filed in accordance with Section 2.2. and is still effective on the first anniversary of the
date of this Agreement (which Piggy-Back Registration may or may not involve a “shelf” or “delayed”
offering), the Company shall use commercially reasonable efforts to prepare, and, promptly
following the first anniversary of the date of this Agreement, file with the Commission a
Registration Statement or Registration Statements (as is necessary) on Form S-3 or, if such form is
unavailable for such a registration, on such other form as is available for such a registration
(the form or forms so filed referred to collectively as the “Shelf Registration Statement”),
covering the resale of all of the Restricted Shares, including resales of Restricted Shares in
privately negotiated transactions. The date upon which the Shelf Registration Statement is
actually filed is referred to herein as the “Initial Filing Date.” The Company shall use
commercially reasonable efforts to have the Shelf Registration Statement declared effective by the
Commission within ninety (90) days after the Initial Filing Date. The Company further undertakes to
use commercially reasonable efforts to keep the Shelf Registration Statement effective during the
Initial Registration Period (as defined below) with respect to all Shares and the resale thereof at
all times during the Initial Registration Period. The Shelf Registration Statement (including each
amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall
be provided to and approved by the holders of a majority of the Restricted Shares (such approval
not to be unreasonably withheld) and one legal counsel selected by such Stockholders prior to the
Company’s filing or other submission (such approval not to be unreasonably withheld) and the
Company will not file any document in a form to which such counsel reasonably objects. For purposes
hereof, the term “Initial Registration Period” shall mean the period beginning on the date the
Shelf Registration Statement is declared effective by the Commission (the “Shelf Registration
Effective Date”) and ending on the first to occur of (i) the date on which all Restricted Shares
have been sold, (ii) the date on which the Shelf Registration Statement is no longer effective, or
(iii) the date that is three (3) years from the Shelf Registration Effective Date.
2.1.2 Additional Shelf Registration. In the event that the Securities Act or the rules
governing the use of a particular form of Registration Statement prohibit the registration of all
Restricted Shares on the Shelf Registration Statement, or if following the Initial Registration
Period any Restricted Shares registered thereon remain unsold, the Company shall promptly use
commercially reasonable efforts to prepare, file with the Commission, and cause to become effective
a Registration Statement or Registration Statements (as is necessary) on Form S-3 (or, if such form
is unavailable for such a registration, on such other form as is available for such a registration)
covering the resale of the then-unsold Restricted Shares, and to keep such Registration Statement
Effective until such time as all Restricted Shares have been sold.
2.1.3 Shelf Underwritten Offering. At any time, and from time to time, during the
Initial Registration Period (as extended pursuant to Section 2.1.2 and except during a suspension
as set forth in Section 3.2), the holders of a majority of the Restricted Shares then issued and
outstanding (in each case to the extent a Stockholder hereunder) may notify the
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Company of their intent to sell Restricted Shares covered by the Registration Statement (in
whole or in part) in an underwritten offering (a “Shelf Underwritten Offering”); provided that the
Company shall not be obligated to participate in more than three underwritten offerings during any
twelve-month period. Such notice shall specify (i) the aggregate number of Restricted Shares
requested to be registered in such Shelf Underwritten Offering and (ii) the identity of the
Stockholder(s) requesting such Shelf Underwritten Offering. Upon receipt by the Company of such
notice, the Company shall use its best efforts to give written notice of the Shelf Underwritten
Offering to the Stockholder(s) not included in the notice set forth above as soon as practicable
before the anticipated date of the pricing of the Shelf Underwritten Offering, which notice shall
offer to such holders of Restricted Shares the opportunity to include in such underwritten offering
the number of Restricted Shares as such holders request in writing within promptly following
receipt of such notice. The Company and the Stockholder(s) requesting such Shelf Underwritten
Offering shall cause such Restricted Shares to be included in the Shelf Underwritten Offering and
shall use commercially reasonable efforts to cause the managing Underwriter or Underwriters of a
proposed Shelf Underwritten Offering to permit the Restricted Shares requested to be included in
such Shelf Underwritten Offering to be included on the same terms and conditions as any similar
securities of the other Stockholder(s) and to permit the sale or other disposition of such
Restricted Shares in accordance with the intended method(s) of distribution thereof. All holders
of Restricted Shares who propose to distribute securities through a Shelf Underwritten Offering
that involves an Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Shelf Underwritten Offering
and complete and execute any questionnaires, indemnities, lock-up agreements, securities escrow
agreements and other documents reasonably required under the terms of such underwriting agreement,
and furnish to the Company such information as the Company may reasonably request in writing for
inclusion in the Shelf Underwritten Offering. Upon receipt by the Company of a notice for a Shelf
Underwritten Offering, the Company shall comply with the applicable provisions of Section 3,
including, without limitation, those provisions relating to the Company’s obligation to make
filings with the Commission, participate in “road shows” and obtain opinions and “comfort” letters,
and shall take such other actions as reasonably necessary or appropriate to permit the consummation
of such Shelf Underwritten Offering as promptly as practicable. Each Shelf Underwritten Offering
shall be for the sale of an amount of Restricted Shares equal to or greater than the Registrable
Amount. In any Shelf Underwritten Offering, the Company shall select the investment banker or
investment bankers and managers that will serve as lead and co-managing underwriters with respect
to the offering of such Restricted Shares, which shall be reasonably acceptable to the Stockholders
participating in such Shelf Underwritten Offering that hold a majority of the Restricted Shares
included in such Shelf Underwritten Offering.
2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Shelf
Underwritten Offering advises the Company and the holders of Restricted Shares that the dollar
amount or number of Shares which the holders of Restricted Shares desire to sell, exceeds the
maximum dollar amount or maximum number of shares that can be sold in such offering without
adversely affecting the proposed offering price, the timing the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum number of shares, as
applicable, the “Maximum Number of Shares”) then the Company shall include in any such offering:
(i) first, the Restricted Shares that the Stockholder(s) have requested to be included in such
Shelf Underwritten Offering pursuant to Section 2.1.3 (pro rata in accordance
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with the number of Shares which each such person has actually requested to be included in such
Shelf Underwritten Offering, regardless of the number of Shares with respect to which such persons
have the right to request such inclusion) that can be sold without exceeding the Maximum Number of
Shares; and (ii) second, to the extent that the Maximum Number of Shares has not been reached under
the foregoing clause (i), the number of Shares proposed to be included therein by any other persons
(including Shares to be sold for the account of the Company and/or other holders of Shares)
allocated among such Persons in such manner as they may agree.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. If at any time on or after the date that is six (6) months
from the date hereof, the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own
account or for stockholders of the Company for their account (or by the Company and by stockholders
of the Company), other than a Registration Statement (i) filed in connection with any employee
stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to
the Company’s existing stockholders, (iii) for an offering of debt securities that are convertible
into equity securities of the Company, (iv) for a dividend reinvestment plan or (v) filed on Form
S-4, then the Company shall (x) give written notice of such proposed filing to the holders of
Restricted Shares as soon as practicable but in no event less than ten (10) Business Days before
the anticipated filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name of the proposed
managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of
Restricted Shares in such notice the opportunity to register the sale of such number of Restricted
Shares as such holders may request in writing within five (5) Business Days following receipt of
such notice (a “Piggy-Back Registration”). The Company shall cause such Restricted Shares to be
included in such registration and shall use commercially reasonable efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit the Restricted Shares
requested to be included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company and to permit the sale or other disposition of
such Restricted Shares in accordance with the intended method(s) of distribution thereof. All
holders of Restricted Shares who propose to distribute securities through a Piggy-Back Registration
that involves an Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration and
complete and execute any questionnaires, indemnities, lock-up agreements, securities escrow
agreements and other documents reasonably required under the terms of such underwriting agreement,
and furnish to the Company such information as the Company may reasonably request in writing for
inclusion in the Registration Statement.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders
of Restricted Shares that the dollar amount or number of Shares which the Company desires to sell,
taken together with Shares, if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Restricted Shares hereunder, the
Restricted Shares as to which registration has been requested under this
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Section 2.2, and the Shares, if any, as to which registration has been requested pursuant to
the written contractual piggy-back registration rights of other stockholders of the Company,
exceeds the maximum dollar amount or Maximum Number of Shares then the Company shall include in any
such registration: (i) first, the Shares or other securities that the Company desires to sell that
can be sold without exceeding the Maximum Number of Shares; and (ii) second, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause (i), the Shares, if any,
including the Restricted Shares as to which registration has been requested pursuant to written
contractual piggy-back registration rights of security holders (pro rata in accordance with the
number of shares which each such person has actually requested to be included in such registration,
regardless of the number of shares with respect to which such persons have the right to request
such inclusion) that can be sold without exceeding the Maximum Number of Shares.
2.3 Withdrawal. Any holder of Restricted Shares may elect to withdraw such holder’s
request for inclusion of Restricted Shares in any Registration Statement by giving written notice
to the Company of such request to withdraw prior to the effectiveness of the Registration
Statement. The Company may also elect to withdraw a Registration Statement in any Piggy-Back
Registration at any time prior to the effectiveness of the Registration Statement. Notwithstanding
any such withdrawal, the Company shall pay all expenses incurred by the holders of Restricted
Shares in connection with such Piggy-Back Registration as provided in Section 3.3.
2.4 Holdback Agreements. Each Stockholder agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such equity securities, during any
time period reasonably requested by the Company (which shall not exceed 45 days) with respect to
any Public Offering or Piggy-Back Registration (in each case, except as part of such registration),
or, in each case, a later date required by any underwriting agreement with respect thereto.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the registration
of any Restricted Shares pursuant to Section 2, the Company shall use commercially reasonable
efforts to effect the registration and sale of such Restricted Shares in accordance with the
intended method(s) of distribution thereof as expeditiously as practicable, and in connection
therewith:
3.1.1 Filing Registration Statement. The Company shall file with the Commission a
Registration Statement in accordance with Section 2.1 or, in the event of a Piggy-Back
Registration, the Company shall, as expeditiously as possible, prepare and file with the Commission
a Registration Statement on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the sale of all Restricted
Shares to be registered thereunder and the intended method(s) of distribution thereof, and shall
use commercially reasonable efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3; provided, however, that the Company shall have
the right to defer the filing of the Shelf Registration
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Statement for up to thirty (30) days and any Piggy-Back Registration for such period as may be
applicable to deferment of any demand registration to which such Piggy-Back Registration relates,
in each case if the Company shall furnish to the holders of Restricted Shares a certificate signed
by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be materially detrimental to the Company and its stockholders
for such Registration Statement to be effected at such time.
3.1.2 Copies. The Company shall, prior to filing a Registration Statement or
Prospectus, or any amendment or supplement thereto, furnish without charge to the holders of
Restricted Shares included in such registration, and such holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each preliminary
Prospectus), and such other documents as the holders of Restricted Shares included in such
registration or legal counsel for any such holders may reasonably request in order to facilitate
the disposition of the Restricted Shares owned by such holders.
3.1.3 Amendments and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective and in compliance with the provisions of the Securities Act
until all Restricted Shares, and all other securities covered by such Registration Statement, have
been disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred eighty (180) days plus
any period during which any such disposition is interfered with by any stop order or injunction of
the Commission or any governmental agency or court) or such securities have been withdrawn.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than two (2) Business Days after such filing, notify the holders of
Restricted Shares included in such Registration Statement of such filing, and shall further notify
such holders promptly and confirm such advice in writing in all events within two (2) Business Days
of the occurrence of any of the following: (i) when such Registration Statement becomes effective;
(ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the
issuance or threatened issuance by the Commission of any stop order (and the Company shall take all
actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any
request by the Commission for any amendment or supplement to such Registration Statement or any
Prospectus relating thereto or for additional information or of the occurrence of an event
requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of the securities covered by such Registration Statement, such
Prospectus will not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading, and
promptly make available to the holders of Restricted Shares included in such Registration Statement
any such supplement or amendment; except that before filing with the Commission a Registration
Statement or Prospectus or any amendment or supplement thereto, including documents incorporated by
reference, the Company shall furnish to the holders of Restricted Shares included in such
Registration Statement and to
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the legal counsel for any such holders, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such holders and legal counsel with a reasonable
opportunity to review such documents and comment thereon, and the Company shall not file any
Registration Statement or Prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such holders or their legal counsel shall reasonably object.
3.1.5 State Securities Laws Compliance. The Company shall use commercially reasonable
efforts to (i) register or qualify the Restricted Shares covered by the Registration Statement
under such securities or “blue sky” laws of such jurisdictions in the United States as the holders
of Restricted Shares included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such Restricted Shares
covered by the Registration Statement to be registered with or approved by such other federal or
state authorities as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be necessary or advisable to enable the holders of
Restricted Shares included in such Registration Statement to consummate the disposition of such
Restricted Shares in such jurisdictions; provided, however, that the Company shall not be required
to qualify generally to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3.1.5 or subject itself to taxation in any such jurisdiction.
3.1.6 Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of such Restricted
Shares. The representations, warranties and covenants of the Company in any underwriting agreement
which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be
made to and for the benefit of the holders of Restricted Shares included in such registration
statement. For the avoidance of doubt, the holders of Restricted Shares may not require the Company
to accept terms, conditions or provisions in any such agreement which the Company determines is not
reasonably acceptable to the Company, notwithstanding any agreement to the contrary herein. No
holder of Restricted Shares included in such registration statement shall be required to make any
representations or warranties in the underwriting agreement except as reasonably requested by the
Company and, if applicable, with respect to such holder’s organization, good standing, authority,
title to Restricted Shares, lack of conflict of such sale with such holder’s material agreements
and organizational documents, and with respect to written information relating to such holder that
such holder has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation. The Chief Executive Officer and Chief Financial Officer of the
Company and the principal accounting officer of the Company and all other officers and members of
the management of the Company shall cooperate fully in any offering of Restricted Shares hereunder,
which cooperation shall include, without limitation, the preparation of the Registration Statement
with respect to such offering and all other offering materials and related documents, and
participation in meetings with Underwriters, attorneys, accountants and potential investors,
including “road shows.” Holders of Restricted Shares shall not be required to make any
representations or warranties to or agreements with the Company or the underwriters except as they
may relate to such holders and their intended methods of distribution. Such holders, however, shall
agree to such covenants and indemnification and contribution obligations for
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selling stockholders as are customarily contained in agreements of that type. Further, such
holders shall cooperate as reasonably requested in the preparation of the registration statement
and other documents relating to any offering in which they include securities pursuant to this
Section 3. Each holder shall also furnish to the Company such information regarding itself, the
Restricted Shares held by such holder, and the intended method of disposition of such securities as
shall be reasonably required to effect the registration of the Restricted Shares.
3.1.8 Records. The Company shall make available for inspection by the holders of
Restricted Shares included in such Registration Statement, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Restricted Shares included in such Registration Statement or
any Underwriter, all financial and other records, pertinent corporate documents and properties of
the Company, as shall be necessary to enable them to exercise their due diligence responsibility,
and cause the Company’s officers, directors and employees to supply all information reasonably
requested by any of them in connection with such Registration Statement.
3.1.9 Opinions and Comfort Letters. The Company shall use commercially reasonable
efforts to furnish to each holder of Restricted Shares included in any Registration Statement a
signed counterpart, addressed to such holder, of (i) any opinion of counsel to the Company
delivered to any Underwriter and (ii) any comfort letter from the Company’s independent public
accountants delivered to any Underwriter. In the event no legal opinion is delivered to any
Underwriter, the Company shall furnish to each holder of Restricted Shares included in such
Registration Statement, at any time that such holder elects to use a Prospectus, an opinion of
counsel to the Company to the effect that the Registration Statement containing such Prospectus has
been declared effective and that no stop order is in effect.
3.1.10 Earnings Statement. The Company shall comply with all applicable rules and
regulations of the Commission and the Securities Act, and make generally available to its
Stockholders, as soon as practicable, an earnings statement covering a period of twelve (12)
months, beginning within six (6) months 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.
3.1.11 Listing. The Company shall use commercially reasonable efforts to cause all
Restricted Shares included in any registration to be listed on such exchanges or otherwise
designated for trading in the same manner as similar Shares of the Company are then listed or
designated or, if no such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Restricted Shares that are included in such
registration.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale
registration pursuant to Section 2.1 hereof, upon any suspension by the Company, pursuant to a
written ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ compliance program adopted by the Company’s Board of Directors, of the
ability of all “insiders” covered by such program to transact in the Company’s securities because
of the existence of material non-public information, each holder of Restricted Shares included in
any registration shall immediately discontinue disposition of such Restricted
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Shares pursuant to the Registration Statement covering such Restricted Shares until such
holder receives the supplemented or amended Prospectus contemplated by Section 3.1.4(iv) or the
restriction on the ability of “insiders” to transact in the Company’s securities is removed, as
applicable, and, if so directed by the Company, each such holder will deliver to the Company all
copies, other than permanent file copies then in such holder’s possession, of the most recent
Prospectus covering such Restricted Shares at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all customary costs and expenses
incurred in connection with any shelf registration effected pursuant to Section 2.1 and any
Piggy-Back Registration effected pursuant to Section 2.2, and all reasonable expenses incurred in
performing or complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all registration and
filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including
fees and disbursements of counsel in connection with blue sky qualifications of the Restricted
Shares, subject to the limit set forth in paragraph (ix) below); (iii) printing expenses; (iv) the
Company’s internal expenses (including, without limitation, all salaries and expenses of their
respective officers and employees); (v) the fees and expenses incurred in connection with the
listing of the Restricted Shares, as required by Section 3.1.11; (vi) Financial Industry Regulatory
Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the expenses or costs
associated with the delivery of any opinions or comfort letters requested pursuant to Section
3.1.9); (viii) the fees and expenses of any special experts retained by the Company in connection
with such registration and (ix) the fees and expenses of one legal counsel selected by the holders
of a majority-in-interest of the Restricted Shares that are included in such registration (not to
exceed, including the reasonable fees and disbursements to counsel in paragraph (ii) above,
$20,000). The Company shall have no obligation to pay any underwriting discounts or selling
commissions attributable to the Restricted Shares being sold by the holders thereof, which
underwriting discounts or selling commissions shall be borne solely by such holders. Additionally,
in an underwritten offering, all selling stockholders and the Company shall bear the expenses of
the underwriter pro rata in proportion to the respective amount of shares each is selling in such
offering.
3.4 Information. The holders of Restricted Shares shall provide such information as
may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with
the preparation of any Registration Statement, including amendments and supplements thereto, in
order to effect the registration of any Restricted Shares under the Securities Act pursuant to
Section 2 and in connection with the Company’s obligation to comply with federal and applicable
state securities laws.
3.5 Holder Obligations. No holder of Restricted Shares may participate in any
underwritten offering pursuant to Section 2 unless such holder (i) agrees to sell only such
holder’s Restricted Shares on the basis reasonably provided in any underwriting agreement, and (ii)
completes, executes and delivers any and all questionnaires, lock-up agreements, custody
agreements, indemnities, underwriting agreements and other documents reasonably required by or
under the terms of any underwriting agreement or as reasonably requested by the Company.
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4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Stockholder and each other holder of Restricted Shares, and each of their respective officers,
employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any,
who controls a Stockholder and each other holder of Restricted Shares (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, a “Stockholder
Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or
liabilities, whether joint or several, arising out of or based upon any untrue statement (or
allegedly untrue statement) of a material fact contained in any Registration Statement under which
the sale of such Restricted Shares was registered under the Securities Act, any preliminary
Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arising out of or based upon any
omission (or alleged omission) to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such expense, loss, claim, damage
or liability arises out of or is based upon any untrue statement or allegedly untrue statement or
omission or alleged omission made in such Registration Statement, preliminary Prospectus, final
Prospectus, or summary Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such selling holder expressly
for use therein, the use of any Registration Statement, any preliminary Prospectus, final
Prospectus or summary Prospectus during a period when a stop order has been issued in respect
thereof or any proceeding for that purpose have been initiated, or the use of any Registration
Statement, any preliminary Prospectus, final Prospectus or summary Prospectus has been suspended by
the Company pursuant to the terms of this Agreement; provided, however, that the foregoing
indemnity shall not inure to the benefit of any holder (or to the benefit of any person controlling
such holder) from whom the person asserting such losses, claims or liabilities purchased the
Restricted Shares, if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf
of such holder to such person, if required by law so to have been delivered at or prior to the
written confirmation of the sale of the Restricted Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving wise to such losses, claims, damages
or liabilities, unless such failure is the result of noncompliance by the Company with Section
3.1.3 hereof.
4.2 Indemnification by Holders of Restricted Shares. Each selling holder of Restricted
Shares will, with respect to any Registration Statement where Restricted Shares were registered
under the Securities Act, indemnify and hold harmless the Company, each of the Company’s directors
and officers, and each other person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), against any losses, claims,
judgments, damages or liabilities, whether joint or several, insofar as such losses, claims,
judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or allegedly untrue statement of a material fact contained in any Registration
Statement under which the sale of such Restricted Shares was registered under the Securities Act,
any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the statement or omission was
made in reliance upon and in conformity with
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information furnished in writing to the Company by such selling holder expressly for use
therein, and shall reimburse the Company, the Company’s directors and officers, and each such
controlling person for any legal or other expenses reasonably incurred by any of them in connection
with investigation or defending any such loss, claim, damage, liability or action. Each selling
holder’s indemnification obligations hereunder shall be several and not joint and shall be limited
to the amount of any net proceeds actually received by such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of
any notice of any loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim
in respect thereof is to be made against any other person for indemnification hereunder, promptly
notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment,
damage, liability or action. If the Indemnified Party is seeking indemnification with respect to
any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it elects, retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified Party, and any others
the Indemnifying Party may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such proceeding, the Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnified Party and the
Indemnifying Party shall have mutually agreed to the retention of such counsel, or (ii) the named
parties to any such proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its written consent, but
if settled with such consent or there is a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party
shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel as contemplated in this Section 4.3, the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent if (x) such
settlement is entered into more than thirty (30) days after receipt by such Indemnifying Party of
the aforesaid request, and (y) such Indemnifying Party shall not have reimbursed the Indemnified
Party in accordance with such request prior to the date of such settlement (other than
reimbursement for fees and expenses the Indemnifying Party is contesting in good faith). No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to
entry of judgment or effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such claim or
proceeding.
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4.4 Contribution.
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
loss, claim, damage, liability or action in such proportion as is appropriate to reflect the
relative benefits received by the Indemnified Parties on the one hand and the Indemnifying Parties
on the other from the offering. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the Indemnified Party failed to give the notice
required under Section 4.3 above, then each Indemnifying Party shall contribute to such amount paid
or payable by such Indemnified Party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Indemnified Parties on the one hand and the
Indemnifying Parties on the other in connection with the actions or omissions which resulted in
such loss, claim, damage, liability or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding Section 4.4.1. The amount paid or payable by an Indemnified Party as a result
of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 4.4, no holder of Restricted Shares shall be
required to contribute any amount in excess of the dollar amount of the net proceeds (after payment
of any underwriting fees, discounts, commissions or taxes) actually received by such holder from
the sale of Restricted Shares which gave rise to such contribution obligation. 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.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports required to be
filed by them under the Securities Act and the Exchange Act and shall take such further action as
the holders of Restricted Shares may reasonably request, all to the extent required from time to
time to enable such holders to sell Restricted Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the Securities Act, or any
similar provision thereto, but not Rule 144A.
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6. MISCELLANEOUS.
6.1 Assignment; No Third Party Beneficiaries; Transfer.
6.1.1 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders of Restricted
Shares hereunder may be freely assigned or delegated by such holder of Restricted Shares in
conjunction with and to the extent of any permitted transfer of Restricted Shares by any such
holder in accordance with the terms hereof and applicable law. This Agreement and the provisions
hereof shall be binding upon and shall inure to the benefit of each of the parties and their
respective Permitted Transferee. This Agreement is not intended to confer any rights or benefits on
any persons that are not party hereto other than as expressly set forth in Section 4 and this
Section 6.1.
6.1.2 Binding Effect on Transferees. A Permitted Transferee shall become a
Stockholder hereunder, without any further action by the Company, following a transfer by a
Stockholder of Shares to such Permitted Transferee upon the execution by such Permitted Transferee
of a joinder providing that such Person shall be bound by and shall fully comply with the terms of
this Agreement (including the provisions of Section 2 with respect to the Shares being transferred
to such transferee).
6.1.3 Additional Purchases. Any Shares held by a Stockholder on or after the date of
this Agreement shall have the benefit of and be subject to the terms and conditions of this
Agreement.
6.1.4 Charter Provisions. The parties hereto shall use their respective reasonable
efforts (including voting or causing to be voted all of the Shares held of record by such party or
Beneficially Owned by such party by virtue of having voting power over such Shares) so as to cause
no amendment be made to the Certificate of Incorporation or Bylaws in a manner that would (a) add
restrictions to the transferability of the Shares by the Stockholders or their Permitted
Transferees who remain a “Stockholder” (as such term is used herein) at the time of such an
amendment, which restrictions are beyond those then provided for in the Certificate of
Incorporation, this Agreement or applicable securities laws or (b) nullify any of the rights of the
Stockholders or their Permitted Transferees who remain a “Stockholder” (as such term is used
herein) at the time of such amendment, which rights are explicitly provided for in this Agreement,
unless, in each such case, such amendment shall have been approved by such Stockholder.
6.1.5 Legend. Any certificate representing Shares issued to a Stockholder shall be
stamped or otherwise imprinted with a legend in substantially the following form:
“The shares represented by this certificate are subject to the provisions contained in the
Registration Rights Agreement dated as of _________, 2011, by and among Staffmark Holdings, Inc.
and the stockholders of Staffmark Holdings, Inc. described therein.”
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The Company shall make customary arrangements to cause any Shares issued in uncertificated
form to be identified on the books of the Company in a substantially similar manner.
6.2 Notices. All notices, demands, requests, consents, approvals or other
communications (collectively, “Notices”) required or permitted to be given hereunder or which are
given with respect to this Agreement shall be in writing and shall be personally served, delivered
by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice provided in accordance with this Section 6.2. Notice
shall be deemed given on the date of service or transmission if personally served or transmitted by
telegram, telex or facsimile; provided, that if such service or transmission is not on a
Business Day or is after normal business hours, then such notice shall be deemed given on the next
Business Day. Notice otherwise sent as provided herein shall be deemed given on the next Business
Day following timely delivery of such notice to a reputable air courier service with an order for
next-day delivery.
To the Company:
Staffmark Holdings, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Squire, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ (US) LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
To a Stockholder, to the address specified in writing from time to time sent to the Company in
accordance with this Section 6.2.
6.3 Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, if any term or provision
hereof shall be deemed to be invalid or unenforceable, the parties hereto shall mutually agree upon
an amendment to this Agreement to include a term or provision as similar in purpose to such invalid
or unenforceable term or provision as may be reasonably possible and which term or provision is
valid and enforceable.
6.4 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which taken together shall constitute one and the
same instrument.
6.5 Entire Agreement. This Agreement (including all agreements entered into pursuant
hereto and all certificates and instruments delivered pursuant hereto and thereto)
17
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements, representations, understandings, negotiations
and discussions between the parties, whether oral or written.
6.6 Modifications and Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such party.
6.7 Titles and Headings. Titles and headings of sections of this Agreement are for
convenience only and shall not affect the construction of any provision of this Agreement.
6.8 Waivers and Extensions. Any party to this Agreement may waive any right, breach or
default which such party has the right to waive, provided, that such waiver will not be
effective against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of
any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding
or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed a waiver or extension
of the time for performance of any other obligations or acts.
6.9 Remedies Cumulative. In the event that the Company fails to observe or perform any
covenant or agreement to be observed or performed under this Agreement, the Stockholders or any
other holder of Restricted Shares may proceed to protect and enforce their rights by suit in equity
or action at law, whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement
or now or hereafter available at law, in equity, by statute or otherwise.
6.10 Governing Law. This Agreement shall be governed by and interpreted and construed
in accordance with the laws of the State of New York applicable to contracts formed and to be
performed entirely within the State of New York, without regard to the conflicts of law provisions
thereof to the extent such principles or rules would require or permit the application of the laws
of another jurisdiction. The Company and the holders of the Restricted Shares irrevocably and
unconditionally submit to the exclusive jurisdiction of the United States District Court for the
Southern District of New York or, if such court does not have jurisdiction, the New York State
Supreme Court in the Borough of Manhattan, in any action arising out of or relating to this
Agreement, agree that all claims in respect of the action may be heard and determined in any such
court and agree not to bring any action arising out of or relating to this Agreement in any other
court. In any action, the Company and the holders of the Restricted Shares irrevocably and
unconditionally waive and agree not to assert by way of motion, as a defense or otherwise any
claims that it is not subject to the jurisdiction of the above court, that such action is brought
in an inconvenient forum or that the venue of such action is improper. Without limiting the
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foregoing, the Company and the holders of the Restricted Shares agree that service of process
at each party’s respective addresses as provided for in Section 6.2 above shall be deemed effective
service of process on such party.
6.11 Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based
on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of the Stockholders in the negotiation,
administration, performance or enforcement hereof.
6.12 Lock-Up Period. Each Stockholder and its respective transferees hereby agree
that in no event may any Restricted Shares be offered for resale on behalf of such Stockholder or
transferees pursuant to the terms hereof except in accordance with the terms and conditions of any
lock-up agreement to which they may be subject from time to time.
[Signature page immediately follows.]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed
and delivered by their duly authorized representatives as of the date first written above.
| STAFFMARK HOLDINGS, INC. | ||||
| Name: | ||||
| Title: | ||||
| STOCKHOLDERS: | ||||
| Compass Group Diversified Holdings LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Staffing Holding LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Madison Capital Funding Co-Investment Fund LP | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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| Name of Stockholder | Restricted Shares | |||
Compass Group Diversified Holdings LLC |
||||
Staffing Holding LLC |
||||
Madison Capital Funding Co-Investment Fund LP |
||||
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