Exhibit 4.5
REGISTRATION AGREEMENT
This Registration Agreement is made as of December 27, 2005, among SHG
Holding Solutions, Inc., a Delaware corporation (the "COMPANY"), and the Persons
listed on Schedule A attached hereto and such other stockholders of the Company
as may, from time to time, become parties to this Agreement in accordance with
the provisions hereof (the "INVESTORS").
Certain of the Investors have entered into Stock Purchase Agreements (each
a "STOCK PURCHASE AGREEMENT" and collectively the "STOCK PURCHASE AGREEMENTS"),
dated as of the date hereof, pertaining to the Investors' investment and/or
contribution to the Company. In order to induce those Investors which are
parties to the Stock Purchase Agreements to enter into their respective Stock
Purchase Agreements, the Company has agreed to provide the registration rights
set forth in this Agreement. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the meanings set forth in Section 9.
The parties, intending to be legally bound hereby, agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to Sections 1(b) and 1(c), at
any time, the Majority Onex Investors may request registration under the
Securities Act of all or part of their Registrable Securities on Form S-1 or any
similar long-form registration ("LONG-FORM REGISTRATIONS") or, if available, on
Form S-2 or S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS"). In addition, at any time after the consummation of a Public
Offering, the holders of a majority of the Registrable Securities may request
Long-Form Registrations or, if available, Short-Form Registrations of all or
part of their Registrable Securities until such holders cease to hold at least
10% of the number of Registrable Securities held by such holders as of the date
hereof. Each request for a registration under this Section 1(a) shall specify
the approximate number of Registrable Securities requested to be registered and
the proposed method of distribution. Within 10 days after receipt of any such
request, the Company will give written notice of such requested registration to
all other holders of Registrable Securities and, subject to Section 1(d), will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. All registrations requested pursuant
to this Section 1(a) are referred to herein as "DEMAND REGISTRATIONS."
(b) Long-Form Registrations. The holders of a majority of the
Registrable Securities will be entitled to request, at the times and subject to
the conditions set forth in Section 1(a), three Long-Form Registrations in which
the Company will pay all Registration Expenses and the
Majority Onex Investors will be entitled to request an unlimited number of
Long-Form Registrations in which the Company will pay all Registration Expenses
("COMPANY-PAID LONG-FORM REGISTRATIONS"). A registration will not count as one
of the permitted Long-Form Registrations until it has become effective (unless
such Long-Form Registration does not become effective due solely to the fault of
the holders requesting such registration and such holders do not bear all
Registration Expenses in connection therewith); provided that in any event
(absent an agreement by the holders requesting such registration to bear such
expenses) the Company will pay all Registration Expenses in connection with any
registration initiated as a Company-Paid Long-Form Registration whether or not
it has become effective. All Long-Form Registrations shall be underwritten
registrations.
(c) Short-Form Registrations. In addition to the Company-Paid
Long-Form Registrations provided pursuant to Section 1(b), the Majority Onex
Investors and, at the times and subject to the conditions set forth in Section
1(a), the holders of a majority of the Registrable Securities will each be
entitled to request an unlimited number of Short-Form Registrations in which the
Company will pay all Registration Expenses. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Company will use its commercially reasonable
efforts to be and remain eligible to use Short-Form Registrations for the sale
of Registrable Securities. The Majority Onex Investors may require that any
Short-Form Registration provide, pursuant to Rule 415 under the Securities Act
or any successor rule, for the continuous offering and sale of Registrable
Securities through market transactions and such methods of distribution as the
Majority Onex Investors may reasonably request (a "SHELF REGISTRATION"). Each
request for a registration under this Section 1(c) shall specify the approximate
number of Registrable Securities to be registered and the proposed method of
distribution.
(d) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities that are not Registrable Securities
without the prior written consent of the holders of at least a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted pursuant to the immediately preceding sentence, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company will include
in such registration prior to the inclusion of any securities which are not
Registrable Securities the number of Registrable Securities requested to be
included (whether upon exercise of a demand registration right or upon exercise
of the right to participate in such a demand registration) that in the opinion
of such underwriters can be sold without adversely affecting the marketability
of the offering, pro rata among the respective holders thereof on the basis of
the number of Registrable Securities requested to be included by each such
holder.
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration, other than a Shelf Registration,
within six months after the effective date of a Demand Registration or a
registration in which the holders of Registrable Securities were
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given piggyback rights pursuant to Section 2 and in which there was no
significant reduction in the number of Registrable Securities requested to be
included. The Company may postpone for up to six months the filing or the
effectiveness of a registration statement for a Demand Registration if the Board
determines that such Demand Registration or the disclosure required thereby
could reasonably be expected to have an adverse effect on (i) any proposal or
plan by the Company or any of its subsidiaries to engage in any acquisition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction, or (ii) any material
corporate development; provided that in such event, the holders of Registrable
Securities initially requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as a requested Demand Registration hereunder and the
Company will pay all Registration Expenses in connection with such registration.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval, which will not be unreasonably withheld.
(g) Other Registration Rights. The Company will not grant to any
Persons the right to request the Company to register any equity securities of
the Company, or any securities convertible or exchangeable into or exercisable
for such securities, without the prior written consent of the holders of at
least a majority of the Registrable Securities; provided that the Company may
grant rights to other Persons to participate in Piggyback Registrations or
Demand Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations
or Demand Registrations.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (including primary registrations on
behalf of the Company and secondary registrations on behalf of the holders of
its securities other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), the Company will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice. However, the
Company shall not include Registrable Securities in a primary registration on
behalf of the Company if the Majority Onex Investors so determine.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the
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Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company will include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities requested to be
included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares requested to be included by each
such holder, and (iii) third, other securities requested to be included in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the Registrable Securities requested to be
included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares to be included by each such
holder, and (ii) second, other securities requested to be included in such
registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities included in such Piggyback Registration. Such approval will not be
unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company will not, except as required by
Section 1, file or cause to be effected any other registration of any of its
equity securities or securities convertible or exchangeable into or exercisable
for its equity securities under the Securities Act (except on Form S-8, or Form
S-4 or any successor forms), whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least 90 days has
elapsed from the effective date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144 under the
Securities Act) of Registrable Securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 90-day (180-day in the case of the initial Public
Offering) period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Registrable
Securities are included or which is a Public Offering (including the initial
Public Offering) for the account of the Company (except as part of such
underwritten registration), unless the underwriters managing the Public Offering
otherwise agree. In connection with any underwritten Demand Registration, each
holder of Registrable Securities will, if so requested by the managing
underwriter, enter into customary lock-up agreements for the periods specified
in the
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preceding sentence (or such shorter periods to which the managing underwriter
may agree), subject to extension for up to 35 days on customary terms by reason
of earnings releases or material news or events concerning the Company.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
Form S-4 or any successor forms), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to cause each holder of its
common stock, or any securities convertible into or exchangeable or exercisable
for common stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144 under the
Securities Act) of any Registrable Securities during such period (except as part
of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use commercially reasonable efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
commercially reasonable efforts to cause such registration statement to become
effective (provided, that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to the
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed, which documents will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period required to accomplish the plan of
distribution set forth therein (but not, except in the case of a Short
Registration, more than six months) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller
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may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided, that the Company will not be required
to (i) qualify generally to do business in any jurisdiction, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction, in each case where it would not otherwise be
required to qualify, subject itself to taxation or consent to general service of
process but for this subparagraph);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed, if eligible for such listing, on one
or more securities exchanges or the NASD automated quotation system (on the
National Market System if the Company so qualifies);
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
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(j) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain comfort letters, dated (i) the effective date of such
registration statement, (ii) the date the Registrable Securities being sold are
delivered to the underwriters, if any, for sale pursuant thereto and (iii) if
required by the underwriters, if any, on or prior to the date of any preliminary
prospectuses, from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters and if the Registrable Securities included in such registration
statement constitute at least 10% of the securities covered by such registration
statement, also covering such matters as the holders of a majority of the
Registrable Securities being sold reasonably request;
(m) provide a legal opinion of the Company's outside counsel with
respect to the registration statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of
the type customarily covered by legal opinions of such nature;
(n) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering (including an underwritten offering under a Shelf Registration),
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters and the holders of a majority of the
Registrable Securities being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(o) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable
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Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(p) cooperate with, and make members of management available to
participate in, road shows and other marketing activities as reasonably
requested by the managing underwriter or underwriters; and
(q) use commercially reasonable efforts to cause the Registrable
Securities covered by the applicable registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses associated with filings required to be made
with the NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter"and its counsel as may be required by the rules and
regulations of the NASD), fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system (on the National Market System if the Company so
qualifies).
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
initially requesting such registration (in the case of a Demand Registration) or
the holders of a majority of the Registrable Securities included in such
registration (in the case of a Piggyback Registration).
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
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6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act or the
Securities Exchange Act) against all losses, claims, damages, liabilities and
expenses (including any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld) caused by
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation by the Company of any federal, state or common
law applicable to the Company and relating to action required of or inaction by
the Company in connection with such registration, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify the underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act or the Securities Exchange Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information relating to such holder and its Registrable
Securities as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Securities
Exchange Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information so furnished in writing by such holder
which specifically states that it is for use in the preparation of such
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto; provided that the obligation to indemnify will be
individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (but any failure to so notify the indemnifying
party shall not relieve it of any liability which it may otherwise have to any
indemnified party unless such failure shall materially adversely affect the
defense of such claim) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party.
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If such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in such proportion as is appropriate to
reflect the relative benefits received by, and the relative fault of, the
Company and such indemnified party in the event the Company's indemnification is
unavailable for any reason. The indemnification and contribution provided for in
this Agreement shall be in addition to, and not in lieu of, the indemnification
and contribution provisions in any underwriting or similar agreement.
7. Participation in Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s)) and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e), such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(e).
8. Current Public Information. At all times after the Company has effected
a Public Offering, the Company will use commercially reasonable efforts to file
all reports required to be filed by it under the Securities Act and the
Securities Exchange Act and the rules and regulations adopted by the Securities
and Exchange Commission thereunder, and will take such further action as any
holder or holders of Registrable Securities may reasonably request, all to the
extent required to enable such holders to sell Registrable Securities pursuant
to Rule 144 adopted by the Securities and Exchange commission under the
Securities Act (as such rule may be amended from time to time) or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission.
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9. Definitions.
(a) "COMMON STOCK" means the Company's common stock, par value $0.001
per share.
(b) "COMPANY-PAID LONG-FORM REGISTRATIONS" has the meaning set forth
in Section 1(b).
(c) "DEMAND REGISTRATIONS" has the meaning set forth in Section 1(a).
(d) "LONG-FORM REGISTRATIONS" has the meaning set forth in Section
1(a).
(e) "PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
(f) "PIGGYBACK REGISTRATIONS" has the meaning set forth in Section
2(a).
(g) "PUBLIC OFFERING" means the sale of Common Stock in an
underwritten public offering registered under the Securities Act.
(h) "PUBLIC SALE" means any sale of the Company's common stock to the
public pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or to a market maker pursuant to the provisions
of Rule 144 adopted under the Securities Act.
(i) "REGISTRABLE SECURITIES" means (i) any of the Common Stock issued
pursuant to the Stock Purchase Agreements (including shares of Common Stock
issuable upon conversion of any convertible securities issued pursuant to the
Stock Purchase Agreements), (ii) any of the Common Stock issued or issuable with
respect to the securities referred to in clause (i) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, and (iii) any other shares of
Common Stock held by Persons holding securities described in clauses (i) or
(ii). As to any particular Registrable Securities, such securities will cease to
be Registrable Securities when they have been sold pursuant to a Public Sale.
For purposes of this Agreement, a Person will be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion, exchange or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
(j) "REGISTRATION EXPENSES" has the meaning set forth in Section 5(a).
(k) "SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
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(l) "SECURITIES AND EXCHANGE COMMISSION" includes any governmental
body or agency succeeding to the functions thereof.
(m) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, or any similar federal law then in force.
(n) "SHELF REGISTRATION" has the meaning set forth in Section 1(c).
(o) "SHORT-FORM REGISTRATIONS" has the meaning set forth in Section
1(a).
(p) "STOCKHOLDERS AGREEMENT" means the Investor Stockholder Agreement,
of even date herewith, entered into by and among the Company and the Investors.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Stockholders Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Remedies. The parties shall be entitled to enforce their rights
under this Agreement specifically to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or temporary, preliminary or
permanent injunctive relief (without posting a bond or other security) in order
to enforce or prevent any violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the Majority Onex Investors and the holders of
at least a majority of the Registrable Securities. The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No purported waiver shall be effective unless in writing. The waiver by any
party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent or other breach.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express
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assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities
who agrees to be bound by the provisions of this Agreement.
(e) Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provisions of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
(f) Counterparts; Joinder. This Agreement may be executed in
counterparts, each of which shall be considered an original, but all of which
together shall constitute one and the same instrument. Additional Persons may
become parties to this Agreement as "Investors" with the consent of the Company
and the Majority Onex Investors, by executing and delivering to the Company a
joinder agreement.
(g) Interpretation. In this Agreement, unless a contrary intention
appears, (i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision, (ii) the words "include," "includes" or
"including" shall be deemed to be followed by the words "without limitation,"
(iii) reference to any Section means such Section hereof, (iv) words of any
gender shall be deemed to include each other gender, and (v) words using the
singular or plural number shall also include the plural or singular number,
respectively. No provision of this Agreement shall be interpreted or construed
against any party hereto solely because such party or its legal representative
drafted such provision.
(h) Captions. The captions in this Agreement are for convenience of
reference
only and shall not be given any effect in the interpretation of this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without regard to
the choice of law provisions thereof.
(j) Jurisdiction. Each party to this Agreement irrevocably submits to
the exclusive jurisdiction of the Chancery Court of the State of Delaware and
the United States District Court for the District of Delaware in connection with
any action, suit or proceeding arising out of or relating to this Agreement, the
parties hereto hereby waiving any claim or defense that such forum is not
convenient or proper. If for any reason the Chancery Court is deemed to be an
inappropriate venue for any such action, suit or proceeding, each party to this
Agreement also submits to the exclusive jurisdiction of the courts of the State
for Delaware. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the courts of the
State of Delaware (including the Chancery Court) and the United States District
Court from the District of Delaware, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
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(k) Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each party hereby irrevocably
and unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated hereby. Each party certifies and acknowledges that (a)
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver, (b) each such party
understands and has considered the implications of this waiver, (c) each such
party makes this waiver voluntarily, and (d) each such party has been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 10(k).
(l) Complete Agreement. This Agreement, the documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understanding, agreements or representations by or among the parties,
written or oral, that may be related to the subject matter hereof in any way.
(m) Notices. All notices, consents and other communications required
or permitted to be given under or by reason of this Agreement shall be in
writing, shall be delivered personally or by e-mail or telecopy as described
below or by reputable overnight courier, and shall be deemed given on the date
on which such delivery is made. If delivered by e-mail or telecopy, such notices
or communications shall be confirmed by a registered or certified letter (return
receipt requested), postage prepaid. Such notices, consents and other
communications will be sent to the parties at the addresses specified for
notices in the Stockholders Agreement or to such other address as the recipient
has specified by prior notice to the other parties.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto, all as of the date first above written.
SHG HOLDING SOLUTIONS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Registration Agreement]
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IN WITNESS WHEREOF, this Registration Agreement has been duly executed by
the undersigned.
Dated: as of _____________, 200_ INVESTOR
By:
------------------------------------
Name:
----------------------------------
[Signature Page (joinder agreement) to the Registration Agreement]
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