EXHIBIT 4.6
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
CONCERNING
VANGUARD HEALTH SYSTEMS, INC.
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DATED AS OF SEPTEMBER 23, 2004
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TABLE OF CONTENTS
Page
Section 1. Definitions........................................................................................... 1
Section 2. Registration Under the Securities Act................................................................. 5
(a) Required Registration...................................................................... 5
(b) Incidental Registration.................................................................... 9
(c) Expenses................................................................................... 11
(d) Effective Registration Statement; Suspension............................................... 11
(e) Selection of Underwriters.................................................................. 11
Section 3. Restrictions on Public Sale........................................................................... 12
Section 4. Registration Procedures............................................................................... 12
Section 5. Indemnification; Contribution......................................................................... 17
(a) Indemnification by the Company............................................................. 17
(b) Indemnification by Holders................................................................. 18
(c) Conduct of Indemnification Proceedings..................................................... 19
(d) Contribution............................................................................... 19
Section 6. Miscellaneous......................................................................................... 20
(a) No Inconsistent Agreements................................................................. 20
(b) Amendments and Waivers..................................................................... 21
(c) Investor Action............................................................................ 21
(d) Notices.................................................................................... 21
(e) Successors and Assigns..................................................................... 22
(f) Recapitalizations, Exchanges, etc., Affecting Registrable Securities....................... 22
(g) Relative Registration Rights............................................................... 22
(h) Counterparts............................................................................... 23
(i) Descriptive Headings, etc.................................................................. 23
(j) Severability............................................................................... 23
(k) Governing Law.............................................................................. 23
(l) Specific Performance....................................................................... 23
(m) Jurisdiction............................................................................... 23
(n) Waiver of Jury Trial....................................................................... 24
(o) Entire Agreement........................................................................... 24
(i)
REGISTRATION RIGHTS AGREEMENT, dated as of September 23, 2004 (the
"Agreement"), by and between Vanguard Health Systems, Inc., a Delaware
corporation (the "Company"), the Investor Members (as hereinafter defined) and
the Management Members (as hereinafter defined) and any other Person that shall
from and after the date hereof acquire or otherwise be the transferee of any
Registrable Securities and who shall become a signatory hereto (herein referred
to collectively as the "Holders" and individually as a "Holder").
WHEREAS, the Company is a party to an Agreement and Plan of Merger,
dated as of July 23, 2004 (the "Merger Agreement"), by and among the Company,
VHS Holdings LLC, a Delaware limited liability company ("VHS Holdings"), and
Health Systems Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of VHS Holdings ("Merger Sub"), pursuant to which the Merger Sub will
merge with and into the Company (the "Merger") and the Company will become a
subsidiary of VHS Holdings;
WHEREAS, in connection with the Merger, (i) certain members of the
Blackstone Investor Group will purchase Class A Units of VHS Holdings, (ii) the
MSCP Investor Group will purchase Class A Units of VHS Holdings and (iii) the
Management Members (including the Other Rollover Members) will purchase Class A
Units of VHS Holdings;
WHEREAS, in connection with the Merger, the Senior Management
Members will also acquire Class B Units, Class C Units and Class D Units of VHS
Holdings;
WHEREAS, the foregoing holders of Class A Units, Class B Units,
Class C Units and Class D Units are parties to the limited liability company
operating agreement of VHS Holdings, dated as of the date hereof, describing the
rights and privileges of such holders (the "LLC Agreement"), pursuant to which
they may receive shares of common stock of the Company in respect of their
Units;
WHEREAS, the members of the Blackstone Investor Group who have not
purchased Class A Units have invested directly in common stock of the Merger Sub
(which will be converted into common stock of the Company pursuant to the
Merger); and
WHEREAS, the Company has agreed to provide registration rights on
the terms and subject to the conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning set forth in the LLC Agreement.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i)(E).
"Blackstone Blackout Period" shall have the meaning set forth in
Section 2(a)(i)(E).
"Blackstone Investor Group" shall mean the parties identified on the
signature pages hereto as a "Blackstone Investor" and the Permitted Transferees
of Blackstone (as such terms are defined in the LLC Agreement).
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Company Blackout Period" shall have the meaning set forth in
Section 2(a)(i)(E).
"Company Notice" shall have the meaning set forth in Section
2(b)(i).
"Eligible Holders" shall have the meaning set forth in Section
2(b)(i).
"Exchange Act" shall have the meaning set forth in the LLC
Agreement.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required to be
effected by the Company pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
statement of the Company as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Investor Group" shall mean either the Blackstone Investor Group or
the MSCP Investor Group.
"Investor Members" means those Members who are members of an
Investor Group.
"IPO" means an initial firm commitment underwritten public offering
of Shares pursuant to an effective registration statement under the Securities
Act, other than pursuant to a registration statement on Form S-4 or Form S-8 or
other limited purpose form.
"LLC Agreement" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean Holders of Shares representing in the
aggregate a majority of the aggregate number of outstanding Shares beneficially
owned by all Holders.
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"Management Members" shall have the meaning set forth in the LLC
Agreement (including the Other Rollover Members).
"Management Representative" shall have the meaning set forth in the
LLC Agreement.
"Member" shall have the meaning set forth in the LLC Agreement.
"MSCP Investor Group" shall mean the parties identified on the
signature pages hereto as a "MSCP Investor" and the Permitted Transferees of
MSCP (as such terms are defined in the LLC Agreement).
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Other Rollover Members" shall have the meaning set forth in the LLC
Agreement.
"Person" shall have the meaning set forth in the LLC Agreement.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Qualified IPO" shall mean an IPO that results in gross proceeds of
at least $50 million.
"Registrable Securities" shall mean (i) any Shares received in
respect of the Units, whether pursuant to a redemption, conversion, distribution
or otherwise under the LLC Agreement, (ii) any Shares otherwise acquired by any
Holder and (iii) any securities of the Company issued or issuable directly or
indirectly with respect to or in exchange, or substitution for, or conversion of
the securities referred to in clauses (i) or (ii) above by way of dividend or
distribution, recapitalization, merger, consolidation, exchange or other
reorganization. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when they have been distributed to the
public pursuant to an offering registered under the Securities Act or sold to
the public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force).
"Registration Expenses" shall mean all (i) registration,
qualification and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of a
qualified independent underwriter, if any, counsel in connection therewith and
the reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties),
(v) fees and disbursements of counsel for the Company, (vi) customary fees and
expenses for independent certified public accountants retained by the
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Company (including the expenses of any comfort letters or costs associated with
the delivery by independent certified public accountants of a comfort letter or
comfort letters), (vii) fees and expenses of any special experts retained by the
Company in connection with such registration, (viii) reasonable fees and
expenses of one separate firm of attorneys for the Holders (which counsel shall
be selected by the Holders selling securities constituting a majority of all
securities to be included in such registration) and (ix) fees and expenses of
listing the Registrable Securities on a securities exchange; but shall not
include any Selling Expenses.
"Registration Statement" shall mean any registration statement of
the Company which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Request" shall have the meaning set forth in Section 2(a)(i)(A)(1).
"Required Registration" shall mean any registration required to be
effected pursuant to Section 2(a)(i)(A).
"Required Registration Statement" shall mean a Registration
Statement which covers the Registrable Securities requested to be included
therein pursuant to a Required Registration on an appropriate form pursuant to
the Securities Act (including pursuant to Rule 415 thereunder or any similar
rule then in force), and which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and all amendments and supplements to such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein. Notwithstanding any other provisions of this Agreement,
(i) any Required Registration Statement filed pursuant to a Request by the MSCP
Investor Group will be on Form S-3 (or any successor to such form); and (ii) the
Company shall not be obligated to effect a Shelf Registration on Form S-1 or
Form S-2 (or any successor to such forms).
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall have the meaning set forth in the LLC
Agreement.
"Selling Expenses" shall mean underwriting discounts, selling
commissions and stock transfer taxes applicable to the Shares registered by the
Holders.
"Senior Management Member" shall have the meaning set forth in the
LLC Agreement.
"Shares" shall have the meaning set forth in the LLC Agreement.
"Shelf Registration" shall have the meaning set forth in Section
2(a)(i)(A)(1).
"Underwriter" shall have the meaning set forth in Section 5(a).
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"Underwritten Offering" shall mean a sale of securities of the
Company to an Underwriter or Underwriters for reoffering to the public.
"Units" shall have the meaning set forth in the LLC Agreement.
Other capitalized terms used but not defined herein shall have the
meaning set forth in the LLC Agreement.
Section 2. Registration Under the Securities Act.
(a) Required Registration.
(i) Right to Require Registration.
(A) (1) Blackstone Investor Group. At any time after the
date of this Agreement, the Blackstone Investor Group shall have the
right to deliver a request in writing to the Company (together with
any similar request made by the MSCP Investor Group pursuant to
Section 2(a)(i)(A)(2) below, a "Request") (which Request shall
specify the Registrable Securities intended to be disposed, the
identity of the Person(s) within the Blackstone Investor Group
intending to dispose of such Registrable Securities, and the
intended method of distribution thereof) that the Company register
the Registrable Securities held by the specified Person(s) within
the Blackstone Investor Group (including, if available, by means of
a shelf offering pursuant to Rule 415 under the Securities Act (or
any similar rule then in force) (a "Shelf Registration")) by filing
with the SEC a Required Registration Statement.
(2) MSCP Investor Group. At any time 180 days after the
consummation of a Qualified IPO, the MSCP Investor Group shall have
the right to deliver a Request (which Request shall specify the
Registrable Securities intended to be disposed, the identity of the
Person(s) within the MSCP Investor Group intending to dispose of
such Registrable Securities, and the intended method of distribution
thereof) that the Company register the Registrable Securities held
by the specified Person(s) within the MSCP Investor Group
(including, if available, by means of a Shelf Registration) by
filing with the SEC a Required Registration Statement; provided,
however, that the MSCP Investor Group may not submit a Request in
respect of a contemplated Shelf Registration prior to the first
anniversary of the consummation of the Qualified IPO.
(B) (1) Upon the receipt of any Request by the
Blackstone Investor Group in connection with a Qualified IPO in
which the Blackstone Investor Group is proposing to sell Registrable
Securities, the Company will, by the tenth day thereafter, give
written notice of such Required Registration to the MSCP Investor
Group, and the MSCP Investor Group shall be entitled to notify the
Company within ten days of receipt of notice of such Request of its
election to include all or a portion of its Registrable Securities
in such registration. Not later than the 60th day after the receipt
of such a Request by the Company, the
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Company will, subject to the other provisions of this Section 2(a),
cause to be filed with the SEC a Required Registration Statement
covering the Registrable Securities which the Company has been so
requested to register in such Request and all other Registrable
Securities which the Company has been requested to register by the
MSCP Investor Group, all to the extent necessary to permit the
disposition of such Registrable Securities so to be registered in
accordance with the intended methods of distribution thereof
specified in such Request or further requests.
(2) Upon the receipt of any Request after the
consummation of a Qualified IPO, the Company will, by the tenth day
thereafter, give written notice of such requested registration to
all Holders of Registrable Securities, and each such Holder shall be
entitled to notify the Company within ten days of receipt of notice
of such Request of such Holder's election to include all or a
portion of its Registrable Securities in such registration; provided
that any Holder owning less than 1% of the outstanding Shares and
who is entitled to sell all of the Registrable Securities owned by
such Holder at such time pursuant to Rule 144 or Rule 145 of the
Securities Act shall not be entitled to such notice and shall not be
entitled to include any Registrable Securities in such registration
unless on the date of determination the average daily trading volume
of the Shares during the 30 trading days prior to such date is less
than the total number of Shares owned by such Holder. Not later than
the 60th day after the receipt of such a Request by the Company, the
Company will, subject to the other provisions of this Section 2(a),
cause to be filed with the SEC a Required Registration Statement
covering the Registrable Securities which the Company has been so
requested to register in such Request and all other Registrable
Securities which the Company has been requested to register by
Holders thereof other than the Holder(s) who are members of the
Investor Group initiating such Request, all to the extent necessary
to permit the disposition of such Registrable Securities so to be
registered in accordance with the intended methods of distribution
thereof specified in such Request or further requests.
(3) For any Required Registration Statement prepared and
filed pursuant to Section 2(a)(i), the Company shall use all
reasonable efforts to have such Required Registration Statement
declared effective by the SEC as soon as practicable after the
filing of such Required Registration Statement and to keep such
Required Registration Statement continuously effective (x) for a
period of at least 60 days, in the case of a Required Registration
other than a Shelf Registration (or, in the case of an Underwritten
Offering, such period as the Underwriters shall reasonably require)
following the date on which such Required Registration Statement is
declared effective (or such shorter period which will terminate when
all of the Registrable Securities covered by such Required
Registration Statement have been sold pursuant thereto) or (y) until
all of the Registrable Securities that are the subject of such
Required Registration Statement have been disposed of pursuant
thereto, in the case of a Shelf Registration, including, in either
case, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the Required Registration Statement or
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the related Prospectus or any document incorporated therein by
reference or by filing any other required document or otherwise
supplementing or amending the Required Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Required Registration
Statement or by the Securities Act, the Exchange Act, any state
securities or blue sky laws, or any rules and regulations
thereunder.
(C) The Company shall not be required to effect,
pursuant to this Section 2(a)(i), (w) more than one Required
Registration within any continuous six month period, (x) any
Underwritten Offering covering Registrable Securities with gross
proceeds reasonably expected by the Holders to be less than $25
million, or (y) more than two (2) Required Registrations requested
by the MSCP Investor Group; provided, however, that for purposes of
clause (y), any Required Registration initiated pursuant to a
Request by the MSCP Investor Group shall, subject to Sections
2(a)(i)(D) and 2(d) below, be treated as a Required Registration
requested by the MSCP Investor Group for purposes of this Section
2(a)(i)(C) only if the MSCP Investor Group sells a majority of the
Registrable Securities included within the offering related to such
Required Registration (or, in the case of a Shelf Registration, only
if the MSCP Investor Group is the beneficial owner of a majority of
the Registrable Securities registered in such Shelf Registration);
and provided further, that any Required Registration constituting a
Shelf Registration initiated pursuant to a Request by the MSCP
Investor Group shall, subject to Sections 2(a)(i)(D) and 2(d) below,
be treated as being requested by the MSCP Investor Group for
purposes of this Section 2(a)(i)(C) only if management of the
Company is required to travel on a "road show" or the offering
pursuant to such Required Registration results in any lock-up being
imposed on the Blackstone Investor Group or the Company. The
Management Members shall have no right to, and shall not, make a
Request in respect of a Required Registration at any time. For the
avoidance of doubt, the Blackstone Investor Group shall not be
limited as to the number of Required Registrations which it is
entitled to request under this Section 2(a)(i).
(D) A Request may be withdrawn prior to the filing of
the Required Registration Statement by the Investor Group which made
such Request and a Required Registration Statement may be withdrawn
prior to the effectiveness thereof by the Holders of a majority of
the Registrable Securities included therein, and, in either such
event, such withdrawal shall not be treated as a Required
Registration for purposes of clauses (w) or (y) of the immediately
preceding paragraph.
(E) Notwithstanding the foregoing, (1) the Blackstone
Investor Group shall have the right to suspend any Shelf
Registration requested by the MSCP Investor Group for a period not
to exceed 90 days upon the Blackstone Investor Group submitting to
the Company its own Request for a Required Registration (a
"Blackstone Blackout Period") (it being understood that the MSCP
Investor Group shall have the right to participate in such Required
Registration pursuant to Section 2(a)(i)(B)); and (2) the Company
may delay the filing of a
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Required Registration Statement (irrespective of the Investor Group
submitting the Request with respect thereto) for a period not to
exceed 90 days if the board of directors of the Company determines
in good faith that the Company or its subsidiaries are engaged in,
or plan to engage in, any financing, acquisition or other material
transaction which would be adversely affected by the filing of a
registration statement (a "Company Blackout Period"; together with
the Blackstone Blackout Period, a "Blackout Period"); provided that
neither the MSCP Investor Group nor the Blackstone Investor Group
shall be subject to more than one Blackout Period in any six month
period.
(F) The registration rights granted pursuant to the
provisions of this Section 2(a)(i) shall be in addition to the
registration rights granted pursuant to the other provisions of this
Section 2.
(ii) Priority in Required Registrations. If a Required
Registration pursuant to this Section 2(a) involves an Underwritten
Offering, and the sole Underwriter or the lead managing Underwriter, as
the case may be, of such Underwritten Offering shall advise the Company in
writing (with a copy to each Holder requesting registration) that, in its
opinion, the amount of Registrable Securities requested to be included in
such Required Registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the Registrable
Securities being offered, the Company will include in such Required
Registration only the amount of Registrable Securities that the Company is
so advised can be sold in such offering without so adversely affecting
such distribution; provided, however, that the Company shall be required
to include in such Required Registration first, all Registrable Securities
requested to be included in the Required Registration by the Investor
Members and, if any, the Management Members and, to the extent not all
such Registrable Securities can be included in such Required Registration,
the number of Registrable Securities to be included shall be allocated pro
rata among such Members on the basis of the number of Registrable
Securities requested to be included in such Required Registration by each
such Member or on such other basis as shall be agreed among such Investor
Members and the Management Representative (if the Management Members have
requested Registrable Securities to be included in such Required
Registration); second, all Registrable Securities requested to be included
in such Required Registration by the other Holders and, to the extent not
all such Registrable Securities can be included in such Required
Registration, the number of Registrable Securities to be included shall be
allocated pro rata among such other Holders on the basis of the number of
Registrable Securities requested to be included in such Required
Registration by each such Holder and third, all other securities
requested, in accordance with any registration rights which are granted in
compliance with Section 6(a), to be included in such Required Registration
which are of the same class as the Registrable Securities otherwise to be
included in such Required Registration and, to the extent not all such
securities can be included in such Required Registration, the number of
securities to be included shall be allocated pro rata among the holders
thereof requesting inclusion in such Required Registration on the basis of
the number of securities requested to be included by all such holders.
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(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time in
connection with or after the consummation of an IPO, the Company proposes
to register any Shares under the Securities Act (other than (A) any
registration of public sales or distributions solely by and for the
account of the Company of securities issued (x) pursuant to any employee
benefit or similar plan or any dividend reinvestment plan or (y) in any
acquisition by the Company or financing thereof, or (B) pursuant to
Section 2(a) hereof (it being understood that such Section 2(a) provides
for incidental registration rights with respect to registrations conducted
thereunder) in connection with a primary offering for cash for the account
of the Company or a secondary offering, the Company will, each time it
intends to effect such a registration, subject to the following
qualifications, give written notice (the "Company Notice") (1) in
connection with or at any time after an IPO, to the Blackstone Investor
Group, (2) in connection with or at any time after a Qualified IPO, to
each of the Investor Groups, and (3) at any time after a Qualified IPO, to
all Holders of Registrable Securities (including the Investor Groups), at
least ten but no more than 45 days prior to the expected initial filing of
a Registration Statement with the SEC pertaining thereto, informing such
Holders entitled to receive the Company Notice (the "Eligible Holders") of
its intent to file such Registration Statement, the expected filing date,
and of the Eligible Holders' rights to request the registration of the
Registrable Securities held by the Eligible Holders under this Section
2(b); provided that any Holder owning less than 1% of the outstanding
Shares and who is entitled to sell all of the Registrable Securities owned
by such Holder at such time pursuant to Rule 144 or Rule 145 of the
Securities Act shall not be entitled to such notice and shall not be an
"Eligible Holder" with respect to such registration unless on the date of
determination the average daily trading volume of the Shares during the 30
trading days prior to such date is less than the total number of Shares
owned by such Holder. Upon the written request of any such Eligible Holder
made within ten days after any such Company Notice is given (which request
shall specify the Registrable Securities intended to be disposed of by
such Eligible Holder and, unless the applicable registration is intended
to effect a primary offering of Shares for cash for the account of the
Company, the intended method of distribution thereof), the Company will
use all reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested
to register by such Eligible Holders to the extent required to permit the
disposition (in accordance with the intended methods of distribution
thereof or, in the case of a registration which is intended to effect a
primary offering for cash for the account of the Company, in accordance
with the Company's intended method of distribution) of the Registrable
Securities so requested to be registered, including, if necessary, by
filing with the SEC a post-effective amendment or a supplement to the
Incidental Registration Statement or the related Prospectus or any
document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Incidental
Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder;
provided, however, that in connection with a Qualified IPO, the Company
shall have no obligation to, and shall not, include or cause to be
included in the Incidental Registration Statement any Registrable
Securities requested
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to be included by the MSCP Investor Group if the Blackstone Investor Group
does not also register Registrable Securities held by it in such
Incidental Registration Statement; and provided further that if, at any
time after giving written notice of its intention to register any
securities and prior to the effective date of the Incidental Registration
Statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Eligible Holder and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
incurred in connection therewith), and (B) in the case of a determination
to delay such registration, the Company shall be permitted to delay
registration of any Registrable Securities requested to be included in
such Incidental Registration Statement for the same period as the delay in
registering such other securities.
The registration rights granted pursuant to the provisions of this
Section 2(b)(i) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
the Company, and the sole Underwriter or the lead managing Underwriter, as
the case may be, of such Underwritten Offering shall advise the Company in
writing (with a copy to each Holder of Registrable Securities requesting
registration) that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such registration
exceeds the amount which can be sold in (or during the time of) such
offering without adversely affecting the distribution of the securities
being offered, then the Company will be required to include in such
registration, first, all the securities entitled to be sold pursuant to
such Registration Statement without reference to the incidental
registration rights of any holder (including Holders); second all
Registrable Securities requested to be included in the Underwritten
Offering by the Investor Members and Management Members and, to the extent
not all such Registrable Securities can be included in such Underwritten
Offering, the number of Registrable Securities to be included shall be
allocated pro rata among such Members on the basis of the number of
Registrable Securities requested to be included in the Underwritten
Offering by all the Investor Members and Management Members or on such
other basis as shall be agreed among such Investor Members and the
Management Representative (if the Management Members have requested
Registrable Securities to be included in such Required Registration)
(provided that, the provisions under this clause "second" shall have
priority over the foregoing clause "first" if Blackstone gives notice to
the Company that Blackstone is electing to have the applicable
Underwritten Offering to constitute a Required Registration); third, all
Registrable Securities requested to be included in such Underwritten
Offering by the other Holders and, to the extent not all such Registrable
Securities can be included in such Underwritten Offering, the number of
Registrable Securities to be included shall be allocated pro rata among
such other Holders on the basis of the number of Registrable Securities
requested to be included in such Underwritten Offering by all such Holders
and fourth, all other
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securities requested, in accordance with any registration rights which are
granted in compliance with Section 6(a), to be included in such
Underwritten Offering which are of the same class as the Registrable
Securities otherwise to be included in such Required Registration and, to
the extent not all such securities can be included in such Underwritten
Offering, the number of securities to be included shall be allocated pro
rata among the holders thereof requesting inclusion in such Underwritten
Offering on the basis of the number of securities requested to be included
by all such holders; provided, however, that in the event the Company will
not, by virtue of this paragraph, include in any such registration all of
the Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to the Company given
within three days of the time such Holder first is notified of such
matter, reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders
not so reducing shall be entitled to a corresponding increase in the
amount of Registrable Securities to be included in such registration.
(c) Expenses. The Company agrees to (i) pay all Registration
Expenses in connection with each of the registrations requested pursuant to
Section 2(a) and (ii) pay all Registration Expenses in connection with each
registration as to which Holders request inclusion of Registrable Securities
pursuant to Section 2(b). All Selling Expenses relating to securities registered
on behalf of Holders shall be borne by the Holders of securities included in
such registration pro rata on the basis of the number of securities so
registered.
(d) Effective Registration Statement; Suspension. Subject to Section
2(a)(i)(D), a Registration Statement pursuant to Section 2(a) will not be deemed
to have become effective (and the related registration will not be deemed to
have been effected) unless it has been declared effective by the SEC or, in the
case of a Registration Statement filed pursuant to Rule 415 (or any similar rule
then in force) in connection with a Shelf Registration, unless Registrable
Securities have been disposed of pursuant thereto, prior to a request by the
Holders of a majority of the Registrable Securities included in such
registration that such Registration Statement be withdrawn; provided, however,
that if, after it has been declared effective, the offering of any Registrable
Securities pursuant to such Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective and the related registration will not be deemed to have
been effected.
(e) Selection of Underwriters. At any time or from time to time, the
holder (including the Company, if applicable) of the greatest number of
Registrable Securities covered by a Registration Statement may elect to have
such Registrable Securities sold in an Underwritten Offering and may select the
investment banker or investment bankers and manager or managers that will serve
as lead and co-managing Underwriters with respect to the offering of such
Registrable Securities, subject to the consent of the Company, which shall not
be unreasonably withheld. No Holder may participate in any Underwritten Offering
hereunder unless such Holder (i) agrees to sell such Holder's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, custody
-11-
agreements, indemnities, underwriting agreements and other documents required
under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale.
(a) If requested by the sole Underwriter or lead managing
Underwriter(s) in an Underwritten Offering, the Company agrees not to effect any
public sale or distribution (other than, in the case of the Company, public
sales or distributions solely by and for the account of the Company of
securities issued pursuant to any employee benefit or similar plan or any
dividend reinvestment plan) of any Shares (or equity or equity-linked
securities) during the period commencing on the date the Company receives a
Request from any Holder and continuing until one hundred eighty (180) days after
the effective date of any IPO, Qualified IPO or other Underwritten Offering (or
for such shorter period as the sole or lead managing Underwriter shall request)
unless earlier terminated by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering.
(b) If requested by the sole Underwriter or lead managing
Underwriter(s) in an Underwritten Offering, the Holders shall not sell or
otherwise transfer or dispose of any Shares (or equity or equity-linked
securities) of the Company held by the Holders (other than those included in the
registration) during the fourteen (14) day period prior to and the one hundred
eighty (180) day period following the effective date (including such effective
date), of an IPO, Qualified IPO or any other offering, or in the case of a Shelf
Registration pursuant to Rule 415 of the Securities Act (or any similar rule
then in force), the 180 day period following the date of any underwritten
take-down, or in either case such shorter period as the sole Underwriter or lead
managing Underwriter(s) may request, provided that the obligations described in
this Section 3(b) shall not apply to a registration relating solely to the sale
of securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or Rule 145 (or any similar rule then in force) or
similar transaction. The Company may impose stop-transfer instructions with
respect to the Shares (or equity or equity-linked securities) subject to the
foregoing restriction until the end of the applicable period pursuant to the
first sentence of this Section 3(b). Notwithstanding the foregoing, if any
Holder (other than a Management Member who is not a Senior Management Member) is
released from the Underwriters' restriction on the sale or transfer of Shares
(or equity or equity-linked securities) of the Company held by such Holder, all
other Holders subject to such restriction shall also be released to the same
extent (based on the percentage of all Shares of such Holder subject to such
Underwriters' restriction that were released from such restriction). Any
agreement entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed Shares or other
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
period referred to in the first sentence of this Section 3(b), including any
sale pursuant to Rule 144 under the Securities Act (or any similar rule then in
force) (except as part of such registration, if permitted).
Section 4. Registration Procedures.
In connection with the obligations of the Company pursuant to
Section 2, the Company shall use all reasonable efforts to effect the
registration of the Registrable Securities
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under the Securities Act to permit the sale of such Registrable Securities by
the Holders in accordance with their intended method or methods of distribution,
and the Company shall:
(a) (i) prepare and file a Registration Statement with the SEC which
(x) shall be on Form S-1 (if in connection with an IPO) and otherwise on Form
S-3 (or any successor to such form), if available, (y) shall be available for
the sale or exchange of the Registrable Securities in accordance with the
intended method or methods of distribution by the selling Holders thereof, and
(z) shall comply as to form with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith and
all other information reasonably requested by the lead managing Underwriter or
sole Underwriter, if applicable, to be included therein, (ii) use all reasonable
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2, (iii) use all reasonable efforts to not
take any action that would cause a Registration Statement to contain a material
misstatement or omission or to be not effective and usable for resale of
Registrable Securities during the period that such Registration Statement is
required to be effective and usable, and (iv) cause each Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of the
effective date of such Registration Statement, amendment or supplement (x) to
comply in all material respects with any requirements of the Securities Act and
the rules and regulations of the SEC and (y) not to contain any 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 not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file
with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration Statement
effective for the applicable period; cause each such Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act (or any similar rule then in
force); and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof, as set forth in such registration
statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities; the Company
hereby consents to the use of the Prospectus, including each preliminary
Prospectus, by each Holder of Registrable Securities and each Underwriter of an
Underwritten Offering of Registrable Securities, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or the
preliminary Prospectus;
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) use all reasonable efforts to keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective; and (iii)
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do any and all other acts and things which may be reasonably necessary or
advisable to enable each such Underwriter, if any, and Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to consent to be subject to
general service of process (other than service of process in connection with
such registration or qualification or any sale of Registrable Securities in
connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which the Company is a
party, the representations and warranties of the Company contained in such
agreement cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (iv) of the happening of any
event during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of Registrable Securities and
the sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, 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 Securities to be in
such denominations (consistent with the provisions of the governing documents
thereof) and registered in such names as the selling Holders or the sole
Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable
-14-
Securities, if any, may reasonably request at least five days prior to any sale
of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus,
or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any 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;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the lead managing Underwriter,
if any, and the Holders of a majority of the Registrable Securities
being sold by all Holders in such offering) addressed to each
selling Holder and the Underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary
underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the
Holders providing for, among other things, the appointment of such
representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement
shall be customary in form, substance and scope and shall contain
customary representations, warranties and covenants; and
-15-
(5) deliver such customary documents and certificates as may
be reasonably requested by the Majority Holders selling Registrable
Securities in such offering or by the managing Underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the Holders
of the Registrable Securities and any Underwriters participating in any
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company and cause
the respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Holders of Registrable Securities and to counsel to such Holders
and to the Underwriter or Underwriters of an Underwritten Offering of
Registrable Securities, if any; fairly consider such reasonable changes in any
such document prior to or after the filing thereof as the counsel to the Holders
or the Underwriter or the Underwriters may request and not file any such
document in a form to which Holders of a majority of the Registrable Securities
being sold by all Holders in such offering or any Underwriter shall reasonably
object; and make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities being registered
or any Underwriter available for discussion of such document;
(ii) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, provide copies of such document to counsel for
the Holders; fairly consider such reasonable changes in such document
prior to or after the filing thereof as counsel for such Holders or such
Underwriter shall request; and make such of the representatives of the
Company as shall be reasonably requested by such counsel available for
discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion
in or listed on The New York Stock Exchange, the NASDAQ National Market or any
other securities exchange or quotation system on which securities of the same
class issued by the Company are then so qualified or listed if so requested by
the Holders of a majority of the Registrable Securities being sold by all
Holders in such offering, or if so requested by the Underwriter or Underwriters
of an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar provision then in force);
-16-
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution and
sale of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Holders of a majority of the Registrable Securities being sold by all
Holders in such offering or the lead managing Underwriter of an Underwritten
Offering; provided that the Company shall not be required to make road show
presentations in connection with any Underwritten Offering of Registrable
Securities that would not reasonably be expected to have gross proceeds of at
least $50 million.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to the Company such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraph (e)(iv) of this
Section, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the affected Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus, contemplated by
paragraph (j) of this Section, and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company), all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities which was current at the
time of receipt of such notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Person who participates in the sale of Registrable
Securities hereunder as an underwriter (any such Person being an "Underwriter"),
each Investor Group, Holder and their respective partners, directors, officers
and employees and each Person, if any, who controls any Investor Group, Holder
or Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a
-17-
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any other claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Company;
and
(iii) against any and all reasonable expense whatsoever (including
fees and disbursements of counsel), as incurred in investigating,
preparing or defending against any litigation, investigation or proceeding
by any governmental agency or body, commenced or threatened, in each case
whether or not such Person is a party, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under sub-paragraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any Investor
Group, Holder or Underwriter with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus, or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in any such case made in reliance upon and in conformity
with written information furnished to the Company by such Investor Group, Holder
or Underwriter expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto); provided,
further, that the Company shall not be liable to any Holder with respect to any
preliminary prospectus to the extent that any such loss, liability, claim,
damage, cost or expense results from the fact that such Holder sold Registrable
Securities to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus if the Company
has previously and timely furnished copies thereof to such Holder and if such
final prospectus would have corrected such untrue statement or omission. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Holder Indemnified Party and shall survive the
transfer of such securities by any Holder.
(b) Indemnification by Holders. Each selling Holder severally but
not jointly agrees to indemnify and hold harmless the Company, each Underwriter
and the other selling Holders and Investor Groups, and each of their respective
partners, managers, officers and employees (including each officer of the
Company who signed the Registration Statement), and each Person, if any, who
controls the Company, any Underwriter or any other selling Holder or Investor
Group within the meaning of Section 15 of the Securities Act, against any and
all losses, liabilities, claims, damages, judgments and expenses described in
the indemnity contained in paragraph (a) of this Section (provided that any
settlement of the type described therein is effected with the written consent of
such selling Holder), as incurred, but only with respect to untrue statements or
alleged untrue statements of a material fact contained in any Registration
Statement or Prospectus or omissions, or alleged omissions therefrom of a
material fact
-18-
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to the Company by such
selling Holder expressly for use in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party
or parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is or are not so entitled
to assume the defense of such action or does or do not assume such defense,
after having received the notice referred to in the first sentence of this
paragraph, the indemnifying party or parties will pay the reasonable fees and
expenses of counsel for the indemnified party or parties (limited in each
jurisdiction to one counsel for all Underwriters and another counsel for all
other indemnified parties under this Agreement). No indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party or parties, which consent shall not be unreasonably
withheld. If an indemnifying party is entitled to assume, and assumes, the
defense of such action or proceeding in accordance with this paragraph, such
indemnifying party or parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection with such
action or proceeding.
(d) Contribution. (i) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided
for in this Section is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms in
respect of any losses, liabilities, claims, damages, judgments and
expenses suffered by an indemnified party referred to herein, each
applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, liabilities, claims, damages, judgments
and expenses in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other in connection with the statements or
omissions which resulted in
-19-
such losses, liabilities, claims, damages, judgments or expenses, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the liable selling Holders (including, in
each case, that of their respective officers, managers, employees and
agents) on the other 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 Company, on the one hand, or by or on behalf
of the selling Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, liabilities, claims, damages, judgments and expenses
referred to above shall be deemed to include, subject to the limitations
set forth in paragraph (c) of this Section, any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(ii) The Company and each Holder of Registrable Securities
agree that it would not be just and equitable if contribution pursuant to
this paragraph (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in sub-paragraph (i) above. Notwithstanding the
provisions of this paragraph (d), in the case of distributions to the
public, an indemnifying Holder shall not be required to contribute any
amount in excess of the amount by which (A) the total price at which the
Registrable Securities sold by such indemnifying Holder and its affiliated
indemnifying Holders and distributed to the public were offered to the
public exceeds (B) the amount of any damages which such indemnifying
Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder, Investor Group or an Underwriter within the meaning of
Section 15 of the Securities Act (and their respective partners,
directors, officers and employees) shall have the same rights to
contribution as such Holder, Investor Group or Underwriter; and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, shall have the
same rights to contribution as the Company.
Section 6. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement which conflicts with the
provisions of this Agreement or which grants registration or similar rights
without the prior written consent of the Blackstone Investor Group, the MSCP
Investor Group and the Management Representative, nor has the Company entered
into any such agreement. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
-20-
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented unless the Company has obtained (i) the prior written consent of
the Holders of a majority of the Registrable Securities, and (ii) if any such
amendment, modification or supplement would adversely affect the rights,
privileges or interests of the Blackstone Investor Group, the MSCP Investor
Group or the Management Members hereunder, the prior written consent of the
Blackstone Investor Group, the MSCP Investor Group or the Management
Representative, respectively.
(c) Investor Action. Any action which requires the approval of an
Investor Group shall be effective if approved by the Holders beneficially
holding a majority of the Registrable Securities held by all Holders of such
Investor Group.
(d) Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be personally served in writing, shall
be deemed to have been given on the date of service, and shall be addressed as
follows:
To the Company: Vanguard Health Systems, Inc.
20 Burton Hills Boulevard, Suite 100
Nashville, TN 37215
Attention: Ronald Soltman
Fax: (615) 665-6197
With copies to: VHS Holdings LLC
c/o Blackstone Management Associates
IV L.L.C.
345 Park Avenue
New York, New York 10154
Attention: Neil Simpkins
Fax: (212) 583-5257
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Ed Chung
Fax: (212) 455-2502
To Blackstone Investor Group: The Blackstone Group
345 Park Avenue, 31st Floor
New York, NY 10154
Attention: Neil Simpkins
Fax: (212) 583-5257
With a copy to: Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Ed Chung
Fax: (212) 455-2502
-21-
To MSCP Investor Group: Morgan Stanley Capital Partners
1585 Broadway
New York, NY 10036
Attention: Eric Fry
Fax: (212) 761-9628
With a copy to: Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: John Bick
Fax: (212) 450-3800
To any Management Member: c/o Vanguard Health Systems, Inc.
20 Burton Hills Boulevard, Suite 100
Nashville, TN 37215
Attention: Management Representative
Fax: (615) 665-6197
To any other Holder: At the address set forth on
the attached signature page.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement. For purposes of this
Agreement, "successor" for any entity other than a natural person shall mean a
successor to such entity as a result of such entity's merger, consolidation,
liquidation, dissolution, sale of substantially all of its assets, or similar
transaction.
(f) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise.
(g) Relative Registration Rights. Notwithstanding any other
provisions of this Agreement, the Blackstone Investor Group shall not, at any
time, enjoy registration rights (whether pursuant to this Agreement or
otherwise) that are more favorable in any respect to the Blackstone Investor
Group than (i) those granted to the MSCP Investor Group (other than the number
of Requests for Required Registrations that may be made to the Company and the
rights to cause an IPO or a Qualified IPO) or (ii) those granted to the
Management Members (other
-22-
than the right to make Requests for Required Registrations, the rights to cause
an IPO or a Qualified IPO and the rights to sell Shares in an IPO or a Qualified
IPO).
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(i) Descriptive Headings, etc. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section and paragraph references are to the Articles,
Sections and paragraphs to this Agreement unless otherwise specified; (4) the
word "including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless otherwise specified; (5) "or" is
not exclusive; and (6) provisions apply to successive events and transactions.
(j) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(k) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.
(l) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform in any material
respect any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement.
(m) Jurisdiction. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
Delaware for any actions, suits or proceedings arising out of or relating to
this agreement and the transactions contemplated hereby (and agree not to
commence any action, suit or proceeding relating thereto except in such courts,
and further agree that service of any process, summons, notice or document by
U.S. registered mail to the address specified in Section 6(d) shall be effective
service of process for any action, suit or proceeding brought against such party
in any such court). The parties herby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding
-23-
arising out of this agreement or the transactions contemplated hereby in the
courts of the State 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.
(n) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(o) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the Company, on the one hand, and the
other parties to this Agreement, on the other, with respect to such subject
matter.
* * *
-24-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
VANGUARD HEALTH SYSTEMS, INC.
By: /s/ Joseph D. Moore
-----------------------------------------
Name: Joseph D. Moore
Title: Executive Vice President,
Treasurer and Chief
Financial Officer
Blackstone Investors:
BLACKSTONE FCH CAPITAL PARTNERS IV L.P.
By: Blackstone Management Associates
IV L.L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
BLACKSTONE HEALTH COMMITMENT PARTNERS L.P.
By: Blackstone Management Associates
IV L.L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
BLACKSTONE CAPITAL PARTNERS IV - A L.P.
By: Blackstone Management Associates IV
L.L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
Signature Page to Registration Rights Agreement
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP IV - A
L.P.
By: Blackstone Management Associates IV L.
L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
BLACKSTONE HEALTH COMMITMENT PARTNERS - A L.P.
By: Blackstone Management Associates IV L.
L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
[Signature Page to Registration Rights Agreement]
BLACKSTONE FCH CAPITAL PARTNERS IV - B L.P.
By: Blackstone Management Associates IV L.
L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
BLACKSTONE FCH CAPITAL PARTNERS IV - A L.P.
By: Blackstone Management Associates IV L.
L.C., as a General Partner
By: /s/ Neil Simpkins
-----------------------------------------
Name: Neil Simpkins
Title: Managing Director
[Additional signature pages follow]
[Signature Page to Registration Rights Agreement]
MSCP Investors:
MORGAN STANLEY CAPITAL PARTNERS III, L.P.
MORGAN STANLEY CAPITAL INVESTORS, L.P.
MSCP III 892 INVESTORS, L.P.
By: MSCP III, LLC, as General Partner of each
of the limited partnerships named above
By: Morgan Stanley Capital Partners III,
Inc., as Member
By: /s/ Eric Fry
-------------------------------------
Name: Eric Fry
Title: Managing Director
MORGAN STANLEY DEAN WITTER CAPITAL
PARTNERS IV, L.P.
MORGAN STANLEY DEAN WITTER CAPITAL
INVESTORS IV, L.P.
MSDW IV 892 INVESTORS, L.P.
By: MSDW Capital Partners IV, LLC, as General
Partner of each of the limited
partnerships named above
By: MSDW Capital Partners IV, Inc., as Member
By: /s/ Eric Fry
-------------------------------------
Name: Eric Fry
Title: Managing Director
[Additional signature pages follow]
[Signature Page to Registration Rights Agreement]
Management Members:
/s/ Charles N. Martin, Jr.
------------------------------------------
Name: Charles N. Martin, Jr.
/s/ William L. Hough
------------------------------------------
Name: William L. Hough
/s/ Joseph D. Moore
------------------------------------------
Name: Joseph D. Moore
/s/ Ronald P. Soltman
------------------------------------------
Name: Ronald P. Soltman
/s/ Keith B. Pitts
------------------------------------------
Name: Keith B. Pitts
/s/ Reginald M. Ballantyne III
------------------------------------------
Name: Reginald M. Ballantyne III
/s/ Bruce Chafin
------------------------------------------
Name: Bruce Chafin
/s/ Alan N. Cranford
------------------------------------------
Name: Alan N. Cranford
/s/ Robert Galloway
------------------------------------------
Name: Robert Galloway
/s/ Jim Johnston
------------------------------------------
Name: Jim Johnston
/s/ Robert M. Martin
------------------------------------------
Name: Robert M. Martin
[Signature Page to Registration Rights Agreement]
/s/ Phillip W. Roe
------------------------------------------
Name: Phillip W. Roe
/s/ James H. Spalding
------------------------------------------
Name: James H. Spalding
/s/ Alan G. Thomas
------------------------------------------
Name: Alan G. Thomas
/s/ Kent H. Wallace
------------------------------------------
Name: Kent H. Wallace
/s/ Thomas M. Ways
------------------------------------------
Name: Thomas M. Ways
/s/ Carol A. Bailey
------------------------------------------
Name: Carol A. Bailey
/s/ James C. Bonnette
------------------------------------------
Name: James C. Bonnette
/s/ Pamela Farrell
------------------------------------------
Name: Pamela Farrell
/s/ John Geer
------------------------------------------
Name: John Geer
/s/ Dennis Jacobs
------------------------------------------
Name: Dennis Jacobs
/s/ Linn H. McCain
------------------------------------------
Name: Linn H. McCain
[Signature Page to Registration Rights Agreement]
/s/ John R. McCaslin
------------------------------------------
Name: John R. McCaslin
/s/ Deborah T. McCormick
------------------------------------------
Name: Deborah T. McCormick
/s/ Elizabeth Minkoff
------------------------------------------
Name: Elizabeth Minkoff
/s/ Jerry Pressley
------------------------------------------
Name: Jerry Pressley
/s/ Anne L. Sanford
------------------------------------------
Name: Anne L. Sanford
/s/ Tony W. Simpson
------------------------------------------
Name: Tony W. Simpson
/s/ Neal Somaney
------------------------------------------
Name: Neal Somaney
/s/ Michael Brooks Turkel
------------------------------------------
Name: Michael Brooks Turkel
/s/ Beverly F. Weber
------------------------------------------
Name: Beverly F. Weber
/s/ Carole Beauchamp
------------------------------------------
Name: Carole Beauchamp
/s/ Jack Cumber
------------------------------------------
Name: Jack Cumber
/s/ Mark Price
------------------------------------------
Name: Mark Price
[Signature Page to Registration Rights Agreement]
/s/ Suzanne Towry
------------------------------------------
Name: Suzanne Towry
/s/ Ray Denson
------------------------------------------
Name: Ray Denson
/s/ Shelly Stocker
------------------------------------------
Name: Shelly Stocker
/s/ Mary A. Botticella
------------------------------------------
Name: Mary A. Botticella
/s/ David K. Culberson
------------------------------------------
Name: David K. Culberson
/s/ Victor Jordon
------------------------------------------
Name: Victor Jordon
/s/ Bruce Eady
------------------------------------------
Name: Bruce Eady
/s/ Angela Skalla
------------------------------------------
Name: Angela Skalla
/s/ Dennis Knox
------------------------------------------
Name: Dennis Knox
/s/ Jonathan Bartlett
------------------------------------------
Name: Jonathan Bartlett
/s/ Sonja Hagel
------------------------------------------
Name: Sonja Hagel
[Signature Page to Registration Rights Agreement]
/s/ Roger Faculak
------------------------------------------
Name: Roger Faculak
/s/ Debra Flores
------------------------------------------
Name: Debra Flores
/s/ John Harrington
------------------------------------------
Name: John Harrington
/s/ Tracy Ann Rogers
------------------------------------------
Name: Tracy Ann Rogers
/s/ Nicke Lynn Waters
------------------------------------------
Name: Nicke Lynn Waters
/s/ Mark Clayton
------------------------------------------
Name: Mark Clayton
/s/ Linda J. Mild
------------------------------------------
Name: Linda J. Mild
/s/ A. Gene Smith
------------------------------------------
Name: A. Gene Smith
/s/ Keith L. Swinney
------------------------------------------
Name: Keith L. Swinney
/s/ Bruce Buchanan
------------------------------------------
Name: Bruce Buchanan
/s/ Dominic Dominguez
------------------------------------------
Name: Dominic Dominguez
/s/ Andrew Harris
------------------------------------------
Name: Andrew Harris
[Signature Page to Registration Rights Agreement]
/s/ Steven King
------------------------------------------
Name: Steven King
/s/ Jeanette Rasmussen
------------------------------------------
Name: Jeanette Rasmussen
/s/ Nancy Novick
------------------------------------------
Name: Nancy Novick
/s/ Cliff Adlerz
------------------------------------------
Name: Cliff Adlerz
/s/ Carl F. Chafin
------------------------------------------
Name: Carl F. Chafin
/s/ Juanita B. Chafin
------------------------------------------
Name: Juanita B. Chafin
/s/ Richard Francis
------------------------------------------
Name: Richard Francis
/s/ John Luke McGuiness Jr., as Trustee
------------------------------------------
Name: John Luke McGuinness Jr. Trust
/s/ Anthony C. Krayer
------------------------------------------
Name: Anthony C. Krayer
/s/ Harold H. Pilgrim, Jr.
------------------------------------------
Name: Harold H. Pilgrim, Jr.
/s/ Carol Murdock
------------------------------------------
Name: Carol Murdock
[Signature Page to Registration Rights Agreement]
/s/ William V. B. Webb
------------------------------------------
Name: William V.B. Webb
BAPTIST HEALTH SERVICES.
By: /s/ John D. Box
---------------------------------------
Name: John D. Box
Title: Executive Vice President and
General Counsel
[Signature Page to Registration Rights Agreement]