Exhibit 99.d.2
FORM OF SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
MCG CAPITAL CORPORATION
and
CERTAIN STOCKHOLDERS
Dated as of _______________, 2001
TABLE OF CONTENTS
Page
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1. CERTAIN DEFINITIONS 2
2. REGISTRATION RIGHTS 5
2.1. Demand Registrations 5
2.2. Piggyback Registrations 8
2.3. Allocation of Securities Included in Registration Statement 9
2.4. Registration Procedures 11
2.5. Registration Expenses 17
2.6. Certain Limitations on Registration Rights 18
2.7. Limitations on Sale or Distribution of Other Securities 18
2.8. No Required Sale 20
2.9. Indemnification 20
3. UNDERWRITTEN OFFERINGS 24
3.1. Requested Underwritten Offerings 24
3.2. Piggyback Underwritten Offerings 24
3.3. Investment Banking Services 25
4. GENERAL 25
4.1. Adjustments Affecting Registrable Securities 25
4.2. Rule 144 26
4.3. Nominees for Beneficial Owners 26
4.4. Miscellaneous 31
4.5. Amendment 31
4.6. Additional Rights 31
4.7. Compliance with Applicable Law 31
4.8. Rescission of Agreement; Restoration 31
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FORM OF SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), is entered into and made effective as of ________________, 2001,
by and among MCG CAPITAL CORPORATION, a Delaware corporation (the "Company")
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(formerly known as named MCG Credit Corporation), each of the Persons listed on
the signature pages hereto under the heading "GOLDMAN STOCKHOLDERS" (the
"Goldman Stockholders"), each of the Persons listed on the signature pages
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hereto under the heading "▇▇▇▇▇ STOCKHOLDERS" (the "▇▇▇▇▇ Stockholders"), each
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of the Persons listed on the signature pages hereto under the heading "VESTAR
STOCKHOLDERS" (the "Vestar Stockholders"), each of the Persons listed on the
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signature pages attached hereto under the heading "Management Stockholders",
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including those listed under the subheading "ADDITIONAL MANAGEMENT STOCKHOLDERS"
(the "Management Stockholders"), and each of the Persons listed on the signature
pages attached hereto under the heading "ADDITIONAL INVESTORS" (the "Additional
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Stockholders" and collectively with the Goldman Stockholders, the ▇▇▇▇▇
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Stockholders, the Vestar Stockholders and the Management Stockholders, the
"Stockholders").
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WHEREAS, the Company and certain of its stockholders entered into a
Registration Rights Agreement, dated as of June 24, 1998 (the "Original
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Registration Rights Agreement");
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WHEREAS, in connection with the Stock Purchase Agreement (the "Stock
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Purchase Agreement") dated as of June 22, 2000, pursuant to which, among other
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things, the ▇▇▇▇▇ Stockholders and the Vestar Stockholders purchased shares of
the Company's Class E Common Stock, par value $.01 per share, the parties to the
Original Registration Rights Agreement and the ▇▇▇▇▇ Stockholders and Vestar
Stockholders entered into an Amended and Restated Registration Rights Agreement
(the "First Amended and Restated Registration Rights Agreement"), dated as of
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July 11, 2000, which amended and restated the Original Registration Rights
Agreement in its entirety; and
WHEREAS, in contemplation of the Company's proposed initial public
offering of its common stock (heretofore named Class C Common Stock), par value
$0.01 per share (the "Common Stock"), the parties to the First Amended and
Restated Registration Rights Agreement have agreed to amend and restate the
First Amended and Restated Registration Rights Agreement in its entirety as set
forth herein.
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.
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The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the meanings ascribed to them below:
"Affiliate" means with respect to any Person, any other Person that,
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directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person. Any Relative of an
individual shall be deemed to be an Affiliate of such individual for purposes
hereof. Without limiting the foregoing, any pooled investment vehicle organized
by Goldman, Vestar Capital Partners IV, L.P., or ▇▇▇▇▇ Private Equity Partners
LLC or any other Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with
each of them (each a "Fund") or an Affiliate of a Fund or the investments of
which are directed by a Fund or any Affiliate thereof or any partner, officer or
employee of a Fund or any Affiliate thereof, and any investment fund organized
by a Fund or any Affiliate thereof for the benefit of the current or former
partners, officers or employees of a Fund or their dependents or any Affiliate
thereof, shall be deemed an Affiliate of the Goldman Stockholders, the Vestar
Stockholders or the ▇▇▇▇▇ Stockholders, respectively, for purposes of this
Agreement. Neither the Company nor any Person controlled by the Company shall be
deemed to be an Affiliate of any Stockholder.
"Applicable Law" means any federal, state, local or foreign law, rule,
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requirement, regulation, statute, ordinance, judgment, decree or bodies of law
applicable to the Company or the Stockholders, including the Investment Company
Act, the Securities Act or the securities laws of any state.
"Certificate of Incorporation" means the Amended and Restated
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Certificate of Incorporation of the Company, as the same may be amended and
restated from time to time.
"Class A Stock" means the Class A Common Stock, par value $.01 per
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share, of the Company.
"Class B Stock" means the Class B Common Stock, par value $.01 per
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share, of the Company.
"Class C Stock" means the Class C Common Stock, par value $.01 per
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share, of the Company, which shall be renamed Common Stock, par value $.01 per
share in connection with the Initial Public Offering.
"Class D Stock" means the Class D Common Stock, par value $.01 per
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share, of the Company.
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"Class E Stock" means the Class E Common Stock, par value $.01 per
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share, of the Company.
"Common Stock" shall have the meaning set forth in the recitals to this
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Agreement.
"Common Stock Equivalents" means any securities convertible into, or
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exercisable or exchangeable for, shares of Common Stock.
"First Union" means First Union Corporation, a North Carolina
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corporation.
"Goldman" means The ▇▇▇▇▇▇▇ Sachs Group, Inc.
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"Initial Public Offering" means the consummation of the first public
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offering of Common Stock pursuant to a registration statement (other than on
Form S-8, a Form N-14 or a successor form) filed with, and declared effective
by, the Securities and Exchange Commission.
"Investment Company Act" means the Investment Company Act of 1940, as
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amended.
"Long-Form" has the meaning given it in Section 2.1(a)(i).
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"Major Stockholder" means with respect to any registration, the
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Stockholder that, together with its Affiliates, includes the largest number of
Registrable Securities in such registration.
"Person" means any individual, corporation, limited liability company,
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limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Qualified IPO" means any issuance and sale of shares of Common Stock
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in an underwritten public offering registered under the Securities Act based on
an implied total equity value of the Company without giving effect to such
issuance of shares in such offering of not less than $15.00 per share of Common
Stock (as adjusted to reflect any stock split, combination, recapitalization or
other reorganization) assuming all outstanding shares of Common Stock had been
converted into Common Stock and all outstanding securities convertible into,
exercisable for, or exchangeable for Common Stock that have an exercise price
less than or equal to $15.00 per share (as adjusted to reflect any stock split,
combination, recapitalization or other reorganization) had been so converted
into, exercised for, or exchanged for Common Stock.
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"Registrable Securities" means any (i) shares of Common Stock held as
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of the date hereof by any Stockholder, (ii) shares of Class A Common Stock
issued pursuant to the exercise of Warrants issued to First Union prior to the
date hereof or any shares of Common Stock issued in exchange for such Warrants
or Class A Common Stock, (iii) shares of Class A Common Stock and/or Class E
Common Stock issued pursuant to the exercise of options issued to employees,
consultants or directors of the Company prior to a Qualified IPO or any shares
of Common Stock issued in exchange for such options, iv) any shares of Common
Stock issued upon a conversion or exchange of shares of Common Stock referenced
in clauses (i), (ii) or (iii) above or (v) any shares of Common Stock issued or
issuable, directly or indirectly, with respect to the Common Stock referenced in
clauses (i), (ii), (iii) and (iv) above by way of stock dividend, stock split or
combination of shares. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (A) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (B) such securities may be
sold (other than in a privately negotiated sale) pursuant to Rule 144 (or any
successor provision) under the Securities Act and in compliance with the
requirements of paragraphs (f) and (g) of Rule 144 (notwithstanding the
provisions of paragraph (k) of such Rule).
"Relative" means with respect to each Stockholder, such Stockholder's
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spouse, former spouse, child, parent, parent of spouse, sibling or grandchild.
"S-3 Eligible Issuer" means an issuer that is qualified under the
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Securities Act and the rules and regulations promulgated thereunder, including
without limitation, the General Instructions to Form S-3, to offer securities on
a Form S-3 registration statement (or other applicable equivalent short-form
registration statement, if any) or its successor form.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
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"Short-Form" has the meaning given it in Section 2.1(a)(i).
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"Stockholder" or "Stockholders" means any party which is entitled to
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the benefits of this Agreement and any party which shall hereafter acquire and
hold Registrable Securities.
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2. Registration Rights.
2.1. Demand Registrations.
(a) (i) Subject to Sections 2.1(b) and 2.3 below, at any
time and from time to time after the consummation of an Initial Public Offering,
(A) the Goldman Stockholders, (B) the Vestar Stockholders and (C) the ▇▇▇▇▇
Stockholders shall each have the right to require the Company to file either a
Form S-1 or Form N-2 registration statement, as applicable, or any applicable
equivalent long-form registration statement ("Long-Forms") or, if available, a
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Form S-3 or any applicable equivalent short-form registration statement
("Short-Forms") under the Securities Act covering all or any part of their
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respective Registrable Securities, by delivering a written request therefor to
the Company specifying the number of Registrable Securities to be included in
such registration by such Stockholder(s) and the intended method of distribution
thereof. All such requests by any Stockholder pursuant to this Section 2.1(a)(i)
are referred to herein as "Demand Registration Requests," and the registrations
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so requested are referred to herein as "Demand Registrations" (with respect to
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any Demand Registration, the Stockholder(s) making such demand for registration
being referred to as the "Initiating Stockholder(s)"). As promptly as
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practicable, but no later than ten business days after receipt of a Demand
Registration Request, the Company shall give written notice (the "Demand
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Exercise Notice") of such Demand Registration Request to all Stockholders of
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record of Registrable Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall
include in a Demand Registration (x) the Registrable Securities of the
Initiating Stockholder(s) and (y) the Registrable Securities of any other
Stockholder which shall have made a written request to the Company for inclusion
in such registration (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Stockholder) within 30
days after the receipt of the Demand Exercise Notice (or within 15 days if, at
the request of the Initiating Stockholder(s) or the Major Stockholder
participating in such registration, the Company states in such written notice or
gives telephonic notice to all Stockholders, with written confirmation to follow
promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as expeditiously as possible,
use all commercially reasonable efforts to (x) effect such registration under
the Securities Act (including, without limitation, by means of a shelf
registration pursuant to Rule 415 under the Securities Act if so requested and
if the Company is then eligible to use such a registration) of the Registrable
Securities which the Company has been so requested to register, for distribution
in accordance with such intended method of distribution, and (y) if requested by
the Initiating Stockholder(s) or the Major Stockholder participating in
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such registration, obtain acceleration of the effective date of the registration
statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a)
to the Stockholders are subject to the following limitations: (i) each
registration in respect of a Demand Registration Request must include, in the
aggregate (based on Registrable Securities included in such registration by all
Stockholders participating in such registration) Registrable Securities having
an aggregate market value of at least $30,000,000 in the case of a Long-Form and
$15,000,000 in the case of a Short-Form (in each case based on the then-current
market price); (ii) the Initiating Stockholder(s) must beneficially own
Registrable Securities representing, in the aggregate, in excess of five percent
(5%) of the amount of shares of Common Stock outstanding immediately prior to
such registration; (iii) the Company shall not be required to cause a
registration pursuant to Section 2.1(a)(i) to be declared effective within a
period of 90 days after the date any registration statement of the Company is
declared effective; (iv) if the Board of Directors of the Company, in its good
faith judgment, determines that any registration of Registrable Securities
should not be made or continued because it would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
transaction involving the Company or any of its subsidiaries (a "Valid Business
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Reason"), (x) the Company may postpone filing a registration statement relating
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to a Demand Registration Request until such Valid Business Reason no longer
exists, but in no event for more than six months, and (y) in case a registration
statement has been filed relating to a Demand Registration Request, if the Valid
Business Reason has not resulted from actions taken by the Company, the Company
may cause such registration statement to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such registration
statement; and the Company shall give written notice of its determination to
postpone or withdraw a registration statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each
case, promptly after the occurrence thereof; (v) the offering of Registrable
Securities requested to be registered pursuant to Section 2.1(a)(i) shall be
pursuant to an underwritten offering unless the Company or any of its
Stockholders has previously sold Registrable Securities pursuant to a
registration statement under the Securities Act; and (vi) the Goldman
Stockholders shall be entitled to request up to four Demand Registrations, up to
two of which may be on a Long-Form, and the Vestar Stockholders and the ▇▇▇▇▇
Stockholders shall each be entitled to request up to two Demand Registrations,
up to one of which may be made by each stockholder group on a Long-Form,
provided that, Demand Registrations shall be registered on a Short Form (or its
successor or equivalent) whenever the Company is S-3 Eligible; provided,
however, that if, as a result of the allocations made pursuant to Section 2.3,
the Initiating Stockholder is not able to include at least 75% of the
Registrable Securities it requested to be registered pursuant to a Demand
Registration in the applicable Demand Exercise Notice, then such Stockholder may
elect not to be deemed the Initiating Stockholder for such Demand
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Registration and that Demand Registration shall not count towards the applicable
limits in this clause (vi), provided, further, that in no event and
notwithstanding any other provision in this Agreement, shall the Company be
required or obligated to effect more than nine (9) Demand Registrations, up to
four of which may be on a Long-Form.
If the Company shall give any notice of postponement or withdrawal of
any registration statement, the Company shall not, during the period of
postponement or withdrawal, register any Common Stock, other than an offering by
the Company for its own account or pursuant to a registration statement on Form
S-4 or Form N-14, as applicable, or Form S-8. Each Stockholder of Registrable
Securities agrees that, upon receipt of any notice from the Company that the
Company has determined to withdraw any registration statement pursuant to clause
(iv) above, such Stockholder will discontinue its disposition of Registrable
Securities pursuant to such registration statement and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Stockholder's possession of the
prospectus covering such Registrable Securities that was in effect at the time
of receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1(a)(i) (whether
pursuant to clause (iv) above or as a result of any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall have
filed a new registration statement covering the Registrable Securities covered
by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company
shall give any notice of withdrawal or postponement of a registration statement,
the Company shall, at such time as the Valid Business Reason that caused such
withdrawal or postponement no longer exists (but in no event later than six
months after the date of the postponement or withdrawal), use all commercially
reasonable efforts to effect the registration under the Securities Act of the
Registrable Securities covered by the withdrawn or postponed registration
statement in accordance with this Section 2.1 (unless the Initiating Stockholder
shall have withdrawn such request, in which case the Company shall not be
considered to have effected an effective registration for the purposes of this
Agreement), and such registration shall not be withdrawn or postponed pursuant
to clause (iv) above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect
to include in any registration statement and offering made pursuant to Section
2.1(a)(i), (i) authorized but unissued shares of Common Stock or shares of
Common Stock held by the Company as treasury shares and (ii) any other shares of
Common Stock which are requested to be included in such registration pursuant to
the exercise of piggyback registration rights granted by the Company after the
date hereof ("Additional Piggyback Rights"); provided, however, that such
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inclusion shall be permitted only to the extent that
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it is pursuant to and subject to the terms of the underwriting agreement or
arrangements, if any, entered into by the Major Stockholder; and, provided,
further, that until such time as the Goldman Stockholders and their Affiliates
collectively own 25% or less of the shares of the Company's outstanding Common
Stock, the Company shall not include, without prejudice to and subject to its
rights under this Agreement otherwise, any authorized shares of Common Stock
(treasury or newly issued) in any registration statement that becomes effective
under the Securities Act pursuant to Section 2.1(a)(i) if any of the Goldman
Stockholders notifies the Company that it proposes to sell shares of Common
Stock in such offering in accordance with Section 2.1.
(d) In connection with any Demand Registration, holders of a
majority of the Registrable Securities requested to be included in such
registration shall have the right to designate the lead managing underwriter for
such registration, provided that such managing underwriter is reasonably
satisfactory to the Company.
2.2. Piggyback Registrations.
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(a) If, at any time, the Company proposes or is required to
register any of its equity securities under the Securities Act (other than
pursuant to (i) registrations on such form or applicable equivalent form(s)
solely for registration of securities in connection with an employee benefit
plan or dividend reinvestment plan or a merger or consolidation, (ii) a Demand
Registration under Section 2.1 or (iii) in connection with an Initial Public
Offering) on a registration statement on Form ▇-▇, ▇-▇, ▇▇▇▇ ▇-▇ or Form S-3 (or
an equivalent general registration form then in effect), whether or not for its
own account, the Company shall give prompt written notice of its intention to do
so to each of the Stockholders of record of Registrable Securities. Upon the
written request of any Stockholder, made within 20 days following the receipt of
any such written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Stockholder and the
intended method of distribution thereof), the Company shall, subject to Sections
2.2(b), 2.3 and 2.6 hereof, use all commercially reasonable efforts to cause all
such Registrable Securities, the Stockholders of which have so requested the
registration thereof, to be registered under the Securities Act (with the
securities which the Company at the time proposes to register) to permit the
sale or other disposition by the Stockholders (in accordance with the intended
method of distribution thereof) of the Registrable Securities to be so
registered. There is no limitation on the number of such piggyback registrations
pursuant to the preceding sentence which the Company is obligated to effect. No
registration effected under this Section 2.2(a) shall relieve the Company of its
obligations to effect Demand Registrations.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement
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filed in connection with such registration, the Company shall determine for any
reason not to register or to delay registration of such equity securities, the
Company may, at its election, give written notice of such determination to all
Stockholders of record of Registrable Securities and (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such abandoned registration,
without prejudice, however, to the rights of Stockholders under Section 2.1, and
(ii) in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such Registrable
Securities for the same period as the delay in registering such other equity
securities.
(c) Any Stockholder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any registration
statement pursuant to this Section 2.2 by giving written notice to the Company
of its request to withdraw; provided, however, that (i) such request must be
made in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable and, after making
such withdrawal, a Stockholder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was made.
2.3. Allocation of Securities Included in Registration Statement.
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(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and the lead managing underwriter of such
offering (or a co-managing underwriter of such offering, if Goldman or any of
its Affiliates is the lead managing underwriter of such offering) (the
"Manager") shall advise the Company that, in its view, the number of securities
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requested to be included in such registration by the Stockholders or any other
persons (including those shares of Common Stock requested by the Company or by
other stockholders exercising Additional Piggyback Rights with the Company's
consent but excluding shares of Common Stock of any Management Stockholder who
is prohibited from participating pursuant to Section 2.6(b) hereof) exceeds the
largest number (the "Section 2.1 Sale Number") that can be sold in an orderly
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manner in such offering within a price range acceptable to the Major
Stockholder, or in the case of a Demand Registration, the Initiating
Stockholder, the Company shall include in such registration:
(i) all Registrable Securities requested to be included
in such registration by Stockholders of Registrable Securities (excluding shares
of Common Stock of any Management Stockholder who is prohibited from
participating pursuant to Section 2.6(b) hereof) and all other shares of Common
Stock that holders of Additional Piggyback Rights propose to register
("Additional Registrable Securities"); provided, however, that, if the number of
such Registrable Securities and Additional Registrable Securities exceeds the
Section 2.1 Sale Number, the number of such Registrable
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Securities and Additional Registrable Securities (not to exceed the Section 2.1
Sale Number) to be included in such registration shall be allocated on a pro
rata basis among all Stockholders requesting that Registrable Securities be
included in such registration and all holders of Additional Registrable
Securities requesting that Additional Registrable Securities be included in such
registration, based on the number of Registrable Securities or Additional
Registrable Securities, as the case may be, then owned by each such Stockholder
or holder of Additional Registrable Securities requesting inclusion in relation
to the number of Registrable Securities then owned by all Stockholders
requesting inclusion plus the number of Additional Registrable Securities then
owned by all holders of Additional Registrable Securities; and
(ii) to the extent that the number of Registrable
Securities to be included by all Stockholders and holders of Additional
Registrable Securities is less than the Section 2.1 Sale Number, shares of
Common Stock that the Company proposes to register.
If, as a result of the proration provisions of this Section 2.3(a), any
Stockholder or holders of Additional Registrable Securities shall not be
entitled to include all Registrable Securities or Additional Registrable
Securities in a registration that such Stockholder or holder of Additional
Registrable Securities has requested be included, such Stockholder or holder of
Additional Registrable Securities, as the case may be, may elect to withdraw his
request to include Registrable Securities or Additional Registrable Securities
in such registration or may reduce the number requested to be included;
provided, however, that (i) such request must be made in writing prior to the
earlier of the execution of the underwriting agreement or the execution of the
custody agreement with respect to such registration and (ii) such withdrawal
shall be irrevocable and, after making such withdrawal, a Stockholder or holder
of Additional Registrable Securities shall no longer have any right to include
Registrable Securities or Additional Registrable Securities in the registration
as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Manager shall advise the Company that, in its
view, the number of securities requested to be included in such registration
(excluding shares of Common Stock of any Management Stockholder who is
prohibited from participating pursuant to Section 2.6(b) hereof) exceeds the
number (the "Section 2.2 Sale Number") that can be sold in an orderly manner in
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such registration within a price range acceptable to the Company, the Company
shall include in such registration:
(i) all Common Stock or Common Stock Equivalents that the
Company proposes to register for its own account (the "Company Securities"); and
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(ii) to the extent that the number of Company Securities
is less than the Section 2.2 Sale Number, all Registrable Securities requested
to be included in such registration by Stockholders of Registrable Securities
and holders of Additional Registrable Securities (excluding shares of Common
Stock of any Management Stockholder who is prohibited from participating
pursuant to Section 2.6(b) hereof); provided, however, that, if the number of
such Registrable Securities and Additional Registrable Securities exceeds the
Section 2.2 Sale Number less the number of Company Securities, then the number
of such Registrable Securities and Additional Registrable Securities (not to
exceed the Section 2.2 Sale Number less the number of Company Securities) to be
included in such registration shall be allocated on a pro rata basis among all
Stockholders requesting that Registrable Securities be included in such
registration and all holders of Additional Registrable Securities requesting
that Additional Registrable Securities be included in such registration, based
on the number of Registrable Securities or Additional Registrable Securities, as
the case may be, then owned by each such Stockholder or holder of Additional
Registrable Securities requesting inclusion in relation to the number of
Registrable Securities then owned by all Stockholders requesting inclusion plus
the number of Additional Registrable Securities then owned by all holders
exercising Additional Registrable Securities.
2.4. Registration Procedures. If and whenever the Company is
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required by the provisions of this Agreement to use all commercially reasonable
efforts to effect or cause the registration of any Registrable Securities under
the Securities Act as provided in this Agreement, the Company shall, as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement
on an appropriate registration form of the SEC for the disposition of such
Registrable Securities in accordance with the intended method of disposition
thereof, which form (i) shall be selected by the Company and (ii) shall, in the
case of a shelf registration, be available for the sale of the Registrable
Securities by the selling Stockholders thereof and such registration statement
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and the Company shall use all commercially reasonable efforts
to cause such registration statement to become and remain effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, or comparable statements under securities or
"blue sky" laws of any jurisdiction, the Company will furnish, if requested, to
one counsel for the Stockholders participating in the planned offering (selected
by the Major Stockholder) and the underwriters, if any, copies of all such
documents proposed to be filed (including all exhibits thereto), which documents
will be subject to the reasonable review and reasonable comment of such counsel,
and the Company shall not file any registration statement or amendment thereto
or any prospectus or supplement thereto to which the
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Stockholders of a majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall reasonably object in
writing;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
such period (which shall not be required to exceed 150 days in the case of a
registration pursuant to Section 2.1 or 120 days in the case of a registration
pursuant to Section 2.2) as any seller of Registrable Securities pursuant to
such registration statement shall request and to comply with the provisions of
the Securities Act with respect to the sale or other disposition of all
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities covered
by such registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits), and the prospectus included in such registration statement (including
each preliminary prospectus) in conformity with the requirements of the
Securities Act, and other documents, as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such seller (the Company hereby
consenting to the use in accordance with all applicable law of each such
registration statement (or amendment or post-effective amendment thereto) and
each such prospectus (or preliminary prospectus or supplement thereto) by each
such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such registration statement or prospectus);
(d) use all commercially reasonable efforts to register or
qualify the Registrable Securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Registrable Securities in such jurisdictions,
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) promptly notify each Stockholder selling Registrable
Securities covered by such registration statement and each managing underwriter,
if any,
-12-
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or
supplements to the registration statement or the prospectus related thereto or
for additional information; (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or "blue sky" laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) of the
existence of any fact of which the Company becomes aware which results in the
registration statement, the prospectus related thereto or any document
incorporated therein by reference containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated by any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering
shall cease to be true and correct in all material respects, and if the
notification relates to an event described in clause (v), the Company shall
promptly prepare and furnish to each such seller and each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading;
(f) comply with all applicable rules and regulations of the
SEC, and make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within 16 months thereafter), an earnings statement (which need not be
audited) covering the period of at least twelve consecutive months beginning
with the first day of the Company's first calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) use all commercially reasonable efforts to cause all
such Registrable Securities covered by such registration statement to be listed
on the principal securities exchange on which similar securities issued by the
Company are then listed (if any), if the listing of such Registrable Securities
is then permitted under the rules of such exchange, or (ii) if no similar
securities are then so listed, use all commercially reasonable efforts to either
cause all such Registrable Securities to be listed on a national securities
exchange or to secure designation of all such Registrable Securities as a Nasdaq
National Market, Inc. ("Nasdaq") "national market system security" within the
------
meaning of
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Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq
authorization for such shares and, without limiting the generality of the
foregoing, take all actions that may be required by the Company as the issuer of
such Registrable Securities in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such with
respect to such shares with the National Association of Securities Dealers, Inc.
(the "NASD");
----
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Stockholders of a majority of the Registrable Securities or the Major
Stockholder participating in such offering shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities, provided
that the underwriting agreement, if any, shall be reasonably satisfactory in
form and substance to the Company. The Stockholders of the Registrable
Securities which are to be distributed by such underwriters shall be parties to
such underwriting agreement and may, at their option, require that the Company
make to and for the benefit of such Stockholders the representations, warranties
and covenants of the Company which are being made to and for the benefit of such
underwriters and which are of the type customarily provided to institutional
investors in secondary offerings; provided, however, that the Company shall not
be required to make any representations or warranties with respect to written
information specifically provided by a Selling Stockholder for inclusion in the
registration documents;
(j) use all commercially reasonable efforts to obtain an
opinion from the Company's counsel and a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters as are customarily covered by such opinions and "cold comfort" letters
delivered to underwriters in underwritten public offerings, which opinion and
letter shall be reasonably satisfactory to the underwriter, if any, any
Initiating Stockholder in the case of a Demand Registration, or to the Major
Stockholder participating in any other offering, and furnish to each Stockholder
participating in the offering and to each underwriter, if any, a copy of such
opinion and letter addressed to such Stockholder or underwriter;
(k) deliver promptly to counsel for the selling Stockholders
participating in the offering and each underwriter, if any, copies of all
correspondence between the SEC and the Company, its counsel or auditors and all
memoranda relating to discussions with the SEC or its staff with respect to the
registration statement, other than those portions of any such correspondence or
memoranda which contain information subject to attorney-client privilege with
respect to the Company, and, upon receipt of such
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confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable Securities
covered by such registration statement, by any underwriter, if any,
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
(m) provide a CUSIP number for all Registrable Securities,
not later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel
and otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) promptly prior to the filing of any document which is to
be incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of such
document to counsel for the selling Stockholders of Registrable Securities and
to each managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such changes in
such document concerning the selling Stockholders prior to the filing thereof as
counsel for such selling Stockholders or underwriters may reasonably request;
(p) furnish to counsel for the selling Stockholders
participating in the offering and the managing underwriter, without charge, at
least one signed copy of the registration statement and any post-effective
amendments thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(q) cooperate with the selling Stockholders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the underwriters or, if not an
-15-
underwritten offering, in accordance with the instructions of the selling
Stockholders of Registrable Securities at least three business days prior to any
sale of Registrable Securities and instruct any transfer agent and registrar of
Registrable Securities to release any stop transfer orders in respect thereof;
and
(r) take all such other commercially reasonable actions as
are necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable Securities as
to which any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request, provided that such information shall be
used only in connection with such registration.
Each Stockholder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind described
in clause (v) of paragraph (e) of this Section 2.4, such Stockholder will
discontinue such Stockholder's disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until such
Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (e) of this Section 2.4 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Stockholder's possession of the
prospectus covering such Registrable Securities that was in effect at the time
of receipt of such notice. In the event the Company shall give any such notice,
the applicable period mentioned in paragraph (b) of this Section 2.4 shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
paragraph (e) of this Section 2.4.
If any such registration statement or comparable statement under "blue
sky" laws refers to any Stockholder by name or otherwise as the Stockholder of
any securities of the Company, then such Stockholder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such Stockholder and the Company, to the effect that the holding
by such Stockholder of such securities is not to be construed as a
recommendation by such Stockholder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
Stockholder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Stockholder by name or
otherwise is not in the judgment of the Company, as advised by counsel, required
by the Securities Act or any similar
-16-
federal statute or any state "blue sky" or securities law then in force, the
deletion of the reference to such Stockholder.
2.5. Registration Expenses.
---------------------
(a) "Expenses" shall mean any and all reasonable fees and
--------
expenses incident to the Company's performance of or compliance with this
Article 2, including, without limitation, (i) SEC, stock exchange or NASD
registration and filing fees and all listing fees and fees with respect to the
inclusion of securities in Nasdaq, (ii) fees and expenses of compliance with
state securities or "blue sky" laws and in connection with the preparation of a
"blue sky" survey, including without limitation, reasonable fees and expenses of
"blue sky" counsel, (iii) printing and copying expenses, (iv) messenger and
delivery expenses, (v) fees and disbursements of counsel for the Company, (vi)
with respect to each registration, the fees and disbursements of one counsel for
the selling Stockholder(s) (selected by the Initiating Stockholder, in the case
of any Demand Registration, or the Major Stockholder in any other case), (vii)
fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other persons, including special experts, retained by the Company, (viii) fees
and expenses payable to a Qualified Independent Underwriter (as such term is
defined in Rule 2720(b)(15) of the National Association of Securities Dealers,
Inc.'s Conduct Rules), (ix) all expenses in connection with any road show, and
(x) any other fees and disbursements of underwriters, if any, customarily paid
by issuers or sellers of securities (collectively, "Expenses").
--------
(b) The Company shall pay all Expenses with respect to any
Demand Registration and any Registration effected under Section 2.2.
(c) Notwithstanding the foregoing, (i) the provisions of
this Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which the
offering is made, (ii) in connection with any registration hereunder, each
Stockholder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with respect
to payments of discounts and commissions in accordance with the number of shares
sold in the offering by such Stockholder, and (iii) the Company shall, in the
case of all registrations under this Article 2, be responsible for all its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties).
-17-
2.6. Certain Limitations on Registration Rights.
------------------------------------------
(a) In the case of any registration under Section 2.1
pursuant to an underwritten offering, or in the case of a registration under
Section 2.2 if the Company has determined to enter into an underwriting
agreement in connection therewith, all securities to be included in such
registration shall be subject to an underwriting agreement and no person may
participate in such registration unless such person agrees to sell such person's
securities on the basis provided therein and completes and executes all
reasonable questionnaires, and other documents (including custody agreements and
powers of attorney) which must be executed in connection therewith, and provides
such other information to the Company or the underwriter as may be necessary to
register such Person's securities.
(b) Notwithstanding anything to the contrary in the
Agreement, no Management Stockholder shall be entitled to include securities in
any registration pursuant to Section 2.1 or Section 2.2 if the Company believes
that such inclusion could result in a violation of Section 57 or any other
provision of the Investment Company Act.
2.7. Limitations on Sale or Distribution of Other Securities.
-------------------------------------------------------
(a) To the extent requested in writing by the Company or the
managing underwriter, if any, of any registration effected pursuant to Sections
2.1 or 2.2, or in connection with any Rule 144A offering or in connection with
any subsequent exchange offer or conversion relating thereto or in connection
with an Initial Public Offering, each Stockholder of Registrable Securities
agrees not to sell, transfer or otherwise dispose of, including any sale
pursuant to Rule 144 under the Securities Act, any Common Stock, or any other
equity security of the Company or any security convertible into or exchangeable
or exercisable for any equity security of the Company during the time period
reasonably requested by the managing underwriter not to exceed 90 days (or 180
days with respect to the Initial Public Offering) beginning with the date of the
closing of such Rule 144A offering, exchange offer, conversion or Initial Public
Offering (such period, the "Stockholder Lockup") other than:
(i) sales of shares of Common Stock or other equity
securities of the Company as part of such underwritten public offering;
(ii) sales of shares Common Stock or other equity
securities of the Company purchased by the Stockholder in the secondary market
following the Initial Public Offering;
(iii) sales of shares of Common Stock or other equity
securities of the Company purchased by the Stockholder in connection with the
-18-
Company's dividend reinvestment plan;
(iv) sales of shares of Common Stock or other equity
securities purchased from the underwriters in connection with the directed share
program of any underwritten public offering;
(v) sales by a Management Stockholder of the number of
shares of Common Stock necessary to derive sufficient proceeds to (A) repay in a
timely fashion all amounts due under borrowings by such Management Stockholder
from the Company and (B) make all tax payments associated with the lapsing of
forfeiture restrictions on shares of restricted Common Stock held by such
Management Stockholder and the sale of any shares pursuant to this clause (v);
(vi) the transfer of shares of Common Stock or other
equity securities by any Stockholder to any Affiliate of such Stockholder;
provided, however, that the Stockholder Lockups entered into in connection with
the Initial Public Offering will not include this exception;
(vii) without limiting clause (vi) above, the transfer of
shares of Common Stock or other equity securities by ▇▇▇▇▇▇ Financial, Inc. to
any successor entity pursuant to a merger or other acquisition of ▇▇▇▇▇▇
Financial, Inc., including, without limitation, by General Electric Company, GE
Capital Corporation or any of their Affiliates; or
(viii) other transfers customarily excluded from such
transfer restrictions, including, without limitation, bona fide gifts by the
Stockholder or other transfers by a Stockholder to a trust for the benefit of
the Stockholder and/or his or her family members;
provided, however, that in the case of clauses (vi) and (vii) and, to the extent
appropriate, clause (viii), transfers will be permitted only if the transferee
executes an agreement stating that the shares of Common Stock or equity
securities so transferred to the transferee will remain subject to the
Stockholder Lockup. The Company hereby also agrees to use all commercially
reasonable efforts to cause each Stockholder of any equity security or any
security convertible into or exchangeable or exercisable for any equity security
of the Company purchased from the Company at any time other than in a public
offering so to agree.
(b) The Company hereby agrees that, if it shall previously
have received a request for registration pursuant to Section 2.1 or 2.2, and if
such previous registration shall not have been withdrawn or abandoned, the
Company shall not, without the prior written consent of the Initiating
Stockholders, sell, transfer, or otherwise dispose of, any Common Stock, or any
other equity security of the Company or any security
-19-
convertible into or exchangeable or exercisable for any equity security of the
Company (other than as part of such underwritten public offering, a registration
on Form S-4 or Form N-14, as applicable, or Form S-8 or any successor or
applicable equivalent form which is then in effect or upon the conversion,
exchange or exercise of any then outstanding Common Stock Equivalent), until a
period of 90 days (or such shorter period of time as requested in writing by any
managing underwriter of such registration pursuant to Section 2.1 or 2.2), shall
have elapsed from the effective date of such previous registration; and the
Company shall so provide in any registration rights agreement hereafter entered
into with respect to any of its securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to
----------------
create an independent obligation on the part of any Stockholder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. Indemnification.
---------------
(a) In the event of any registration of any securities of
the Company under the Securities Act pursuant to this Article 2, the Company
will, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, each Stockholder of Registrable Securities, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees and stockholders thereof), each
other Person who participates as an underwriter or a Qualified Independent
Underwriter, if any, in the offering or sale of such securities, each officer,
director, employee, stockholder or partner of such underwriter or Qualified
Independent Underwriter, and each other Person, if any, who controls such seller
or any such underwriter within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) (collectively, "Claims"), and
------
expenses (including reasonable fees of counsel and any amounts paid in any
settlement effected with the Company's consent, which consent shall not be
unreasonably withheld or delayed) to which each such indemnified party may
become subject under the Securities Act or otherwise, insofar as such Claims or
expenses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such securities were registered under the Securities Act or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary, final or summary prospectus or any amendment or supplement
thereto, together with the documents incorporated by reference therein, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (iii)
any violation by the Company of any federal, state or common law rule or
regulation applicable to the
-20-
Company and relating to action required of or inaction by the Company in
connection with any such registration, and the Company will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim
as such expenses are incurred; provided, however, that the Company shall not be
liable to any such indemnified party in any such case to the extent such Claim
or expense arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
made in such registration statement or amendment thereof or supplement thereto
or in any such prospectus or any preliminary, final or summary prospectus or
amendment thereof or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such indemnified
party specifically for use therein. Such indemnity and reimbursement of expenses
shall remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified party and shall survive the transfer of such
securities by such seller.
(b) Each Stockholder of Registrable Securities that are
included in the securities as to which any registration under Section 2.1 or 2.2
is being effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if
any) shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section 2.9)
to the extent permitted by law the Company, its officers and directors, each
Person controlling the Company within the meaning of the Securities Act and all
other prospective sellers and their directors, officers, general and limited
partners and respective controlling Persons with respect to any untrue statement
or alleged untrue statement of any material fact in, or omission or alleged
omission of any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such Stockholder specifically for use therein and reimburse such indemnified
party for any legal or other expenses reasonably incurred in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the aggregate amount which any such Stockholder shall be
required to pay pursuant to this Section 2.9(b) and Sections 2.9(c) and (e)
shall in no case be greater than the amount of the net proceeds received by such
person upon the sale of the Registrable Securities pursuant to the registration
statement giving rise to such claim. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified party and shall survive the transfer of
such securities by such Stockholder.
-21-
(c) Indemnification similar to that specified in the
preceding paragraphs (a) and (b) of this Section 2.9 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure of any
indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 2.9,
except to the extent the indemnifying party is materially prejudiced thereby and
shall not relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Article 2. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that (i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding within 20 days after
receiving notice from such indemnified party that the indemnified party believes
it has failed to do so; or (ii) if such indemnified party who is a defendant in
any action or proceeding which is also brought against the indemnifying party
reasonably shall have concluded that there may be one or more legal defenses
available to such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct,
then, in any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there may
be legal defenses available to such party or parties which are not available to
the other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any expenses therefor. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
-22-
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (B) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections 2.9(a),
(b) or (c), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, with respect to such
offering of securities. The relative fault 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 the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 2.9(e) were to be 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 preceding sentences
of this Section 2.9(e). The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
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. Notwithstanding
anything in this Section 2.9(e) to the contrary, no indemnifying party (other
than the Company) shall be required pursuant to this Section 2.9(e) to
contribute any amount in excess of the net proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the indemnified parties
relate, less the amount of any indemnification payment made by such indemnifying
party pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified
-23-
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party and shall survive the transfer of the
Registrable Securities by any such party.
(g) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(h) Notwithstanding the foregoing, so long as the Company is
registered under the Investment Company Act or elects to be regulated as a
business development company under the Investment Company Act, nothing contained
in this Section 2.9 shall limit the liability of, or permit the indemnification
of, any director or officer of the Corporation for actions or matters for which
such limitation or indemnification would be prohibited by the Investment Company
Act.
3. Underwritten Offerings.
----------------------
3.1 Requested Underwritten Offerings. If requested by the underwriters
--------------------------------
for any underwritten offering by the Stockholders pursuant to a registration
requested under Section 2.1, the Company shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement shall
be satisfactory in form and substance to the Initiating Stockholder in the case
of a Demand Registration or to the Major Stockholder if there is no Initiating
Stockholder and shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities and contribution agreements. Any Stockholder participating in the
offering shall be a party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Stockholder and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Stockholder; provided, however, that the Company shall not
be required to make any representations or warranties with respect to written
information specifically provided by a selling Stockholder for inclusion in the
registration statement. Such underwriting agreement shall also contain such
representations and warranties by the participating Stockholders as are
customary in agreements of that type.
3.2. Piggyback Underwritten Offerings. In the case of a registration
--------------------------------
pursuant to Section 2.2 hereof, if the Company shall have determined to enter
into an
-24-
underwriting agreement in connection therewith, all of the Stockholders'
Registrable Securities to be included in such registration shall be subject to
such underwriting agreement. Any Stockholder participating in such registration
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Stockholder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Stockholder. Such underwriting agreement
shall also contain such representations and warranties by the participating
Stockholders as are customary in agreements of that type.
3.3. Investment Banking Services. Unless and until the Goldman
---------------------------
Stockholders dispose of more than 50% of the Common Stock beneficially owned by
them on the date hereof (such percentage to be measured after taking into
account any stock split, reclassification, combination, stock dividend or
similar transaction), Goldman or any of its Affiliates shall have the right to
perform all investment banking services (excluding any underwriting of
securities, commercial banking services, any determination of fair market value
pursuant to any employment, consulting or severance agreement and services
relating to any asset securitization or other debt issuances) for the
Company for which an investment banking firm is retained (including, without
limitation, with respect to the sale of the Company), in each case, upon
commercially reasonable terms that are mutually satisfactory to Goldman and the
Company; provided, however, that the Company shall have the right, in its
discretion, to engage one or more other firms to serve as additional providers
of investment banking services performed by Goldman or any of its Affiliates for
the Company, so long as Goldman or an Affiliate is designated as the lead
provider of such services to the Company and such other engagement does not
affect the compensation that Goldman or its Affiliate will receive for providing
such services. If the Company and Goldman, after good faith discussions, cannot
agree on the terms of any such engagement, the Company may hire such other
investment banking firms as it desires.
4. General.
-------
4.1. Adjustments Affecting Registrable Securities. The Company agrees
--------------------------------------------
that it shall not effect or permit to occur any combination or subdivision of
shares which would adversely affect the ability of the Stockholder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration. The Company agrees that it will
take all reasonable steps necessary to effect a subdivision of shares if in the
reasonable judgment of (a) the Initiating Stockholder of a Demand Registration
Request or (b) the managing underwriter for the offering in respect of such
-25-
Demand Registration Request, such subdivision would enhance the marketability of
the Registrable Securities.
4.2. Rule 144. If the Company shall have filed a registration
--------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act in
respect of the Common Stock or securities of the Company convertible into or
exchangeable or exercisable for Common Stock, the Company covenants that (i) so
long as it remains subject to the reporting provisions of the Exchange Act, it
will timely file the reports required to be filed by it under the Securities Act
or the Exchange Act (including, but not limited to, the reports under Sections
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities Act), and (ii) will take such further action as any
Stockholder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Stockholder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (A) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (B) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Stockholder of Registrable
Securities, the Company will deliver to such Stockholder a written statement as
to whether it has complied with such requirements.
4.3. Nominees for Beneficial Owners. If Registrable Securities
------------------------------
are held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its option, be treated as the Stockholder of such Registrable
Securities for purposes of any request or other action by any Stockholder or
Stockholders of Registrable Securities pursuant to this Agreement (or any
determination of any number or percentage of shares constituting Registrable
Securities held by any Stockholder or Stockholders of Registrable Securities
contemplated by this Agreement), provided that the Company shall have received
assurances reasonably satisfactory to it of such beneficial ownership.
4.4. Miscellaneous.
-------------
(a) No waiver of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provision hereof
(whether or not similar). No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
(b) Any notice, request, instruction or other document to be
given hereunder by any party hereto to any other party shall be in writing and
delivered (i) personally, (ii) by telecopy (provided that a copy of any notice
delivered pursuant to this clause (ii) shall also be sent pursuant to clause
(iv) below), (iii) by a generally recognized overnight courier service which
guarantees overnight delivery and provides written acknowledgment by the
addressee of receipt, or (iv) by registered or certified mail (or by
-26-
air mail if addressed to an address outside of the United States), postage
prepaid, return receipt requested,
if to the Company to:
MCG Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
if to the Goldman Stockholders,
GS Capital Partners II, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
GS Capital Partners II, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
-27-
if to any Vestar Stockholder, to:
Vestar Capital Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citigroup Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
if to any ▇▇▇▇▇ Stockholder, to:
▇▇▇▇▇ Private Equity Partners LLC
▇▇▇ ▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
if to a Stockholder,
at the address or facsimile number shown on the record books
of the Company
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered in the manner provided herein shall be deemed to have
been duly given to the party to whom it is directed upon actual receipt by such
party (evidenced, in the case of a telecopy, by the receipt of telephone
confirmation thereof).
(c) The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective successors and assigns of
the parties hereto. If any Person shall acquire Registrable Securities from any
Stockholder, in any manner, whether by operation of law or otherwise, such
transferee shall promptly notify the
-28-
Company and such Registrable Securities acquired from such Stockholder shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement. If the Company shall
so request, any such successor or assign shall agree in writing to acquire and
hold the Registrable Securities acquired from such Stockholder subject to all of
the terms hereof. If any Stockholder shall acquire additional Registrable
Securities, such Registrable Securities shall be subject to all of the terms,
and entitled to all the benefits, of this Agreement.
(d) This Agreement (including the exhibits, any other
schedules and other documents referred to herein) constitutes the entire
agreement between the parties hereto and supersedes all prior agreements and
understandings, oral and written, between the parties hereto, with respect to
the subject matter hereof.
(e) THE VALIDITY, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT, UNLESS EXPRESSLY PROVIDED TO THE CONTRARY, SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF DELAWARE FOR ANY ACTION, PROCEEDINGS OR INVESTIGATIONS IN ANY
COURT OR BEFORE ANY GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES
NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN SUCH COURTS), AND
FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S.
REGISTERED MAIL TO ITS RESPECTIVE ADDRESS SET FORTH IN THIS AGREEMENT SHALL BE
EFFECTIVE SERVICE OF PROCESS FOR ANY LITIGATION BROUGHT AGAINST IT IN ANY SUCH
COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY OBJECTION TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR
RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS
OF THE STATE OF DELAWARE, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY
JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THE
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF GS CAPITAL PARTNERS
II OFFSHORE, L.P., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH AND QUANTUM INDUSTRIAL
PARTNERS, LDC HAS APPOINTED AN AGENT FOR SERVICE OF PROCESS IN DELAWARE AND HAS
PROVIDED THE COMPANY WITH DOCUMENTATION OF SUCH APPOINTMENT. EACH OF THE
FOREGOING PARTIES
-29-
REPRESENTS AND WARRANTS THAT IT WILL NOT PERMIT SUCH APPOINTMENT TO LAPSE AT ANY
TIME THAT IT OWNS ANY SECURITIES OF THE COMPANY.
(f) The headings of the sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof. Terms
stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in either the masculine or the neuter gender shall
include the masculine, the feminine and the neuter. References to any statute or
any provision thereof shall be deemed to include a reference to any statute or
provision that amends, extends, consolidates or replaces the same and shall
include any orders, regulations, instruments, official government
interpretations or other subordinate legislation made under the relevant
statute.
(g) If any term or provision of this Agreement or any
application thereof shall be declared or held invalid, illegal or unenforceable,
in whole or in part, whether generally or in any particular jurisdiction, such
provision shall be deemed amended to the extent, but only to the extent,
necessary to cure such invalidity, illegality or unenforceability, and the
validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
(h) The parties hereto hereby acknowledge that each party
hereto would suffer irreparable injury and would not have an adequate remedy at
law for money damages if the provisions of this Agreement were not performed in
accordance with their terms. Each party hereto agrees that the other parties
hereto shall be entitled to specific enforcement of the terms of this Agreement
in addition to any other remedy to which they are entitled, at law or in equity.
Furthermore, if any action or proceeding shall be instituted to enforce the
provisions hereof, any party against whom such action or proceeding is brought
hereby waives the claim or defense therein that there is an adequate remedy at
law, and agrees not to argue in any such action or proceeding the claim or
defense that such remedy at law exists.
(i) This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which together shall constitute one and the same instrument.
(j) At any time or from time to time the parties hereto
agree to cooperate with each other, and at the request of another party, to
execute and deliver or cause to be executed or delivered any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of the
transactions contemplated hereby and to otherwise carry out the intent of the
parties hereunder.
-30-
4.5. Amendment. This Agreement may be amended, modified,
---------
supplemented or waived only upon the written consent of the Company, the Goldman
Stockholders holding a majority of all Common Stock held by the Goldman
Stockholders, the Vestar Stockholders holding a majority of all Common Stock
held by the Vestar Stockholders, the ▇▇▇▇▇ Stockholders holding a majority of
all Common Stock held by the ▇▇▇▇▇ Stockholders and the Management Stockholders
holding a majority of all Common Stock held by the Management Stockholders.
4.6. Additional Rights. The parties hereto acknowledge that the
------------------
Company may from time to time grant holders of the Company's capital stock
demand and piggyback registration rights that are in addition to those set forth
herein.
4.7. Compliance with Applicable Law. Notwithstanding anything to the
------------------------------
contrary in this Agreement, (i) no right granted by or derived from this
Agreement may be exercised in a manner that would violate any Applicable Law and
(ii) the Company shall have no obligation to take any action or omit to take any
action that would otherwise be required hereunder if such action or omission
would violate any Applicable Law or result in any violation of any Applicable
Law.
4.8. Rescission of Agreement; Restoration. If the Initial Public
------------------------------------
Offering is not consummated on or prior to the earlier of (i) the 20th day
following the effective date of the contemplated filing by the Company of a Form
N-8A with the SEC pursuant to which the Company will register under the
Investment Company Act as a closed-end investment company or (ii) December 31,
2001, then the parties hereto agree that (x) this Second Amended and Restated
Registration Rights Agreement shall be automatically rescinded and shall be null
and void and (y) the First Amended and Restated Registration Rights Agreement
shall be automatically restored and shall be in full force and effect on the
terms set forth therein. In such event, each of the parties to this Agreement
agrees to execute any documents or instruments and take all other actions
required to restore the parties' rights and preferences prior to the execution
of this Second Amended and Restated Registration Rights Agreement.
-31-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
MCG CAPITAL CORPORATION
By: ________________________________
Name:
Title:
GOLDMAN STOCKHOLDERS
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.L.C., Its General Partner
By: ________________________________
Name:
Title:
-32-
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II L.L.C., Its General
Partner
By: ________________________________
Name:
Title:
▇▇▇▇▇▇▇, SACHS & CO. VERWALTUNGS
GmbH
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street 1998, L.L.C.,
Its General Partner
By: ________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street 1998, L.L.C.,
Its General Partner
By: ________________________________
Name:
Title:
-33-
▇▇▇▇▇ STOCKHOLDERS
QUANTUM INDUSTRIAL PARTNERS
LDC
By: ________________________________
Name:
Title:
SFM DOMESTIC INVESTMENTS LLC
By: ________________________________
Name:
Title:
VESTAR STOCKHOLDERS
VESTAR CAPITAL PARTNERS IV, L.P.
By: Vestar Associates IV, L.P.
Its General Partner
By: Vestar Associates Corporation IV
Its General Partner
By: ________________________________
Name:
Title:
-34-
VESTAR /MCG LLC
By: Vestar Associates Corporation IV
Its Managing Member
By: _____________________________
Name:
Title:
MANAGEMENT STOCKHOLDERS
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
OTHER MANAGEMENT STOCKHOLDERS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Custodian For
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
###-##-#### Under UGMA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Custodian ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
###-##-#### Under UGMA
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-35-
ADDITIONAL INVESTORS
First Union Corporation
▇▇▇▇▇▇ Financial, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 85 Trust
▇▇▇▇▇▇▇ & Sons, LP
United Communications Group
▇▇▇▇▇ ▇▇▇▇▇▇▇
Rube Enterprises, L.P.
-36-