EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
November 23, 2005, is made by and among Sunshine Acquisition Corporation, a
Delaware corporation (the "Company"), Carlyle Partners IV, LP, a Delaware
limited partnership ("CP IV"), CP IV Coinvestment, LP, a Delaware limited
partnership ("Coinvest" and, together with CP IV, the "Initial Carlyle
Investors"), William C. Stone, an individual ("Executive"), and each of the
other stockholders of the Company that becomes a party hereto from time to time
by executing a supplemental signature page in the form attached as Exhibit A
hereto (the "Other Executive Investors" and, collectively with the Initial
Carlyle Investors and Executive, the "Investors").
RECITALS
WHEREAS, the Initial Carlyle Investors and Executive are holders of
the issued and outstanding shares of Common Stock; and
WHEREAS, the Company desires to provide to the Investors and to each
other Holder (as defined below) rights to registration under the Securities Act
(as defined below) of Registrable Securities (as defined below), on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
"Carlyle Holders": (a) The Initial Carlyle Investors, (b) any
affiliate of any Initial Carlyle Investor that is issued shares of Common Stock
after the date hereof and (c) any subsequent transferee of any shares of Common
Stock issued at any time to the Persons listed in clause (a) or clause (b)
above.
"Common Stock": The shares of common stock, par value $0.01 per share,
of the Company and any stock into which such Common Stock may thereafter be
converted or exchanged.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Executive Holders": (a) Executive and (b) any subsequent transferee
of any shares of Common Stock issued at any time to Executive.
"Holder": Any Carlyle Holder, any Executive Holder and any Other
Executive Investor.
"IPO": The initial public offering of Common Stock pursuant to an
effective registration statement under the Securities Act.
"IPO Date": The first date of the issuance of Common Stock in an IPO.
"Person": Any individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization, government or any
department or agency thereof or any other entity.
"Registrable Securities": Any shares of Common Stock held at any time
by any Holder and any shares of Common Stock which may be issued or distributed
in respect thereof by way of stock dividend or stock split or other
distribution, recapitalization or reclassification. Any particular Registrable
Securities that are issued shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale by the Holder of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) such
securities shall have been distributed to the public pursuant to Rule 144 (or
any successor provision) under the Securities Act, (iii) all of the Registrable
Securities then owned by such Holder could be sold pursuant to Rule 144(k) or
(iv) such securities shall have ceased to be outstanding.
"Registration Expenses": Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i) all SEC
and stock exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees (including, if applicable, the fees and
expenses of any "qualified independent underwriter," as such term is defined in
NASD conduct rule 2720, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange pursuant to clause (vi) of
Section 4 and all rating agency fees, (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the Holders of
the Registrable Securities being registered to represent such Holders in
connection with each such registration, and (vii) other reasonable out-of-pocket
expenses of Holders (provided that such expenses shall not include expenses of
counsel other than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
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"Selling Expenses" Underwriting discounts and commissions and transfer
taxes, if any, applicable to the sale of Registrable Securities.
"Stockholders Agreement": The Stockholders Agreement, dated as of the
date hereof, among the Company, the Initial Carlyle Investors and Executive.
2. Incidental Registrations. (a) Right to Include Registrable
Securities. If the Company at any time after the IPO Date proposes to register
shares of its Common Stock under the Securities Act (other than (i) a
registration statement filed by the Company in connection with the IPO, (ii) a
registration statement on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes, or (iii) a registration statement with respect
to corporate reorganizations or other transactions under Rule 145 of the
Securities Act or any successor rule promulgated for similar purposes), whether
or not for sale for its own account (including, without limitation, any
registration effected pursuant to Section 3 hereof), in a manner which would
permit registration of Registrable Securities for sale to the public under the
Securities Act, it will, at each such time, give prompt written notice to all
Holders of Registrable Securities of its intention to do so and will afford each
such Holder an opportunity to include in such registration all or part of the
Registrable Securities held by such Holder. Upon the written request of any such
Holder made within fifteen (15) days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder), the Company will, subject to Section 2(c) below, use its
reasonable best efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to register
by the Holders to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided that (i) if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, and (ii) if such registration involves an underwritten offering,
all Holders of Registrable Securities requesting to be included in the Company's
registration must sell their Registrable Securities to the underwriters selected
by the Company on the same terms and conditions as apply to the Company
(including entering into an underwriting agreement in customary form with the
underwriter or underwriters selected for such offering by the Company), as may
be customary or appropriate in combined primary and secondary offerings. If a
registration requested pursuant to this Section 2(a) involves an underwritten
public offering, any Holder of Registrable Securities requesting to be included
in such registration may elect, in writing at least ten (10) days prior to the
effective date of the registration statement filed in connection with such
registration, not to register such securities in connection with such
registration.
(b) Expenses. The Company will pay all Registration Expenses incurred
in connection with each registration of Registrable Securities pursuant to this
Section 2. All Selling Expenses applicable to Registrable Securities sold by
Holders incurred in connection with each registration pursuant to this Section 2
shall be borne by the Holders of the Registrable Securities so registered pro
rata based on the number of securities so registered.
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(c) Priority in Incidental Registrations. If a registration pursuant
to this Section 2 involves an underwritten offering and the managing underwriter
determines in good faith that marketing factors require a limitation on the
number of securities to be underwritten, the number of securities that may be
included will be limited to the number of securities that, in the opinion of
such underwriter, should be included and the securities to be included in the
registration shall be allocated first, to the Company, and second, to all
requesting Holders on the basis of the relative number of Registrable Securities
then held by each such Holder (provided that any securities thereby allocated to
any such Holder that exceed such Holder's request will be reallocated among the
remaining requesting Holders in like manner).
3. Registration on Request. (a) At anytime, after the date that is six
(6) months after the IPO Date, upon the written request of (i) the Holder or
Holders of a majority of the Registrable Securities held by the Carlyle Holders
(the "Carlyle Demand Party") requesting that the Company effect the registration
under the Securities Act of all or part of the Registrable Securities held by
the Carlyle Holders (a "Carlyle Demand"), or (ii) Executive requesting that the
Company effect the registration under the Securities Act of all or part of the
Registrable Securities held by the Executive Holders (an "Executive Demand"; for
purposes of this Section 3, "Demand Party" shall mean the Carlyle Demand Party,
in the case of a Carlyle Demand, or Executive, in the case of an Executive
Demand), and specifying the amount and intended method of disposition thereof,
the Company thereupon will, as expeditiously as possible, subject to the
limitations of this Section 3, use its reasonable best efforts to effect the
registration under the Securities Act of (i) such Registrable Securities which
the Company has been so requested to register by the Demand Party, (ii) such
Registrable Securities which the Company has been requested to register by other
Holders of Registered Securities exercising their rights under Section 2 hereof
with respect to such registration and (iii) any shares of Common Stock that the
Company desires to include in such registration, in each case, to the extent
necessary to permit the disposition (in accordance with the intended method
thereof as aforesaid) of the Registrable Securities so to be registered;
provided that the Carlyle Demand Party shall not be entitled to make a Carlyle
Demand at any time that the Carlyle Holders hold less than five percent (5%) of
the Registrable Securities then outstanding; provided further that Executive
shall not be entitled to make an Executive Demand at any time that the Executive
Holders hold less than five percent (5%) of the Registrable Securities then
outstanding. If any registration effected pursuant to this Section 3 is intended
to involve an underwritten offering, the managing underwriter for such offering
shall be selected by the Company (and shall be reasonably acceptable to the
Demand Party).
(b) Expenses. The Company will pay all Registration Expenses incurred
in connection with each registration of Registrable Securities pursuant to this
Section 3. All Selling Expenses applicable to Registrable Securities sold by
Holders incurred in connection with each registration pursuant to this Section 3
shall be borne by the Holders of the Registrable Securities so registered pro
rata based on the number of securities so registered.
(c) Priority in Requested Registrations. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter determines in good faith that marketing factors require a limitation
on the number of securities to be underwritten, the number of securities that
may be included will be limited to the number of securities that, in the opinion
of such managing underwriter, should be included and the
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securities to be included in the registration shall be allocated first, to the
Demand Party and the other Holders requesting inclusion of Registrable
Securities in such registration on the basis of the relative number of
Registrable Securities then held by each such Holder (provided that any
securities thereby allocated to any such Holder that exceed such Holder's
request will be reallocated among the remaining Holders in like manner), and
second, to the Company.
(d) Limitation on Registration on Request. Notwithstanding anything in
this Section 3 to the contrary, (i) the Company shall not be obligated to take
any action to effect any registration pursuant to this Section 3 if the Company
has previously effected a number of registrations upon the request of a Demand
Party pursuant to this Section 3 equaling or exceeding four (4) registrations,
in the case of the Carlyle Demand Party, and three (3) registrations, in the
case of Executive and (ii) the Company shall not be obligated to effect more
than three (3) registrations pursuant to this Section 3 in any year; provided,
however, that no registration effected pursuant to this Section 3 will count
towards the foregoing numerical limits on the number of registrations that may
be requested by a Demand Party pursuant to this Section 3 if the Registrable
Securities proposed to be sold by such Demand Party in such registration are cut
back pursuant to Section 3(c).
(e) Postponements in Requested Registrations. (i) If the Company shall
at any time furnish to the Demand Party a certificate signed by its chairman of
the board, chief executive officer, president or any other of its authorized
officers stating that the filing of such registration statement would be
materially detrimental to the Company or its stockholders, the Company may
postpone the filing of a registration statement required by this Section 3 for
up to one hundred eighty (180) days and (ii) if the Board of Directors of the
Company determines in its good faith judgment that the registration and offering
otherwise required by this Section 3 would have an adverse effect on a then
contemplated public offering of the Company's Common Stock, the Company may
postpone the filing of a registration statement required by this Section 3,
during the period starting with the sixtieth (60th) day immediately preceding
the date of the anticipated filing of, and ending on a date one hundred eighty
(180) days following the effective date of, the registration statement relating
to such other public offering. The Company shall promptly give the Demand Party
requesting registration thereof pursuant to this Section 3 written notice of any
postponement made in accordance with the preceding sentence.
4. Registration Procedures. If and whenever the Company is required to
use its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will (to the extent not relieved of such obligation as provided in
Section 2 hereof), as expeditiously as possible:
(i) prepare and, in any event within sixty (60) days after the end of
the period within which a request for registration may be given to the
Company pursuant to Section 2 or 3, file with the SEC a registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such Registration
Statement effective for up to one hundred eighty (180) days or, if earlier,
until the Holder or Holders have completed the distribution described in
the registration statement related thereto;
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(ii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for the
period set forth in paragraph (i) above and to comply with the provisions
of the Securities Act, the Exchange Act and the rules and regulations of
the SEC thereunder 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 seller or sellers thereof
set forth in such registration statement;
(iii) furnish to each seller of such Registrable Securities such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities by such seller;
(iv) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration under such other
securities or blue sky laws in such jurisdictions as each seller shall
reasonably request, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in
any jurisdiction where, but for the requirements of this clause (iv), it
would not be obligated to be so qualified, to subject itself to taxation in
any such jurisdiction or to consent to general service of process in any
such jurisdiction;
(v) notify each seller of any such Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (i) of this Section 4, of the Company's becoming
aware that the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing;
(vi) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then
listed if such Registrable Securities are not already so listed and if such
listing is then permitted under the rules of such exchange;
(vii) in the event of an underwritten public offering, enter into an
underwriting agreement in usual and customary form with the managing
underwriter(s) of such offering;
(viii) in the event of an underwritten public offering, use its
reasonable best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, a "cold comfort"
letter from the Company's independent public accounts in form and substance
as is customarily given by independent public accountants to underwriters
in an underwritten public offering;
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(ix) in the event of an underwritten public offering, use its
reasonable best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, an opinion of
counsel for the Company, dated as of such date, in form and substance as is
customarily given to underwriters in an underwritten public offering; and
(x) cooperate and assist with any filings required to be made with the
NASD.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (v) of this Section 4, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (v) of this Section 4,
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (i) of this
Section 4 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (v) of this
Section 4 and to and including the date when each seller of Registrable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by clause (v) of this
Section 4.
5. Indemnification. (a) Indemnification by the Company. In the event
of any registration of any securities of the Company under the Securities Act
pursuant to Sections 2 or 3 hereof, the Company will indemnify and hold
harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers, stockholders, members or general
and limited partners (including any director, officer, affiliate, employee,
agent and controlling Person of any of the foregoing), each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including reasonable
attorney's fees and reasonable expenses of investigation) to which such
indemnified party may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such indemnified party is a party
thereto) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (b) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, and the Company will reimburse such indemnified
party for any legal or any
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other expenses reasonably incurred by it in connection with investigating or
defending against any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable to any indemnified party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus or a document incorporated by
reference into any of the foregoing in reliance upon and in conformity with
written information furnished to the Company by such seller specifically for use
in the preparation thereof; and provided, further, that the Company will not be
liable to any indemnified person under the indemnity agreement in this Section
5(a) with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the extent
that any such loss, claim, damage or liability of such indemnified person
results from the fact that an underwriter 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 or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously furnished copies thereof to such underwriter.
(b) Indemnification by the Seller. In the event of any registration of
any securities of the Company under the Securities Act pursuant to Sections 2 or
3 hereof, each seller of Registrable Securities included in such registration
will indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 5(a)) the Company, each affiliate of the Company and their
respective directors, officers, stockholders, members or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each other Person who participates
as an underwriter in the offering or sale of such securities and all other
sellers of Registrable Securities covered by such registration statement, each
affiliate of such seller and their respective directors, officers, stockholders,
members or general and limited partners (including any director, officer,
affiliate, employee, agent and controlling person of any of the foregoing) and
each other Person, if any, who controls the Company or such underwriter or such
seller within the meaning of the Securities Act, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such seller specifically for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
In no event shall the liability of any selling Holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its
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obligations under this Section 5, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include, as an unconditional term thereof, the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) Contribution. If the indemnification provided for in this Section
5 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the 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, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and such indemnified party in connection with the actions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and such indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 5(d) as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(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 the immediately preceding paragraph.
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.
6. Rule 144. With a view to making available the benefits of certain
rules and regulations of the SEC which may permit the sale of restricted
securities to the public without registration, the Company agrees to:
(a) use its reasonable best efforts to make and keep public
information available as those terms are understood and defined in Rule 144
under the Securities Act ("Rule 144"), at all times from and after ninety (90)
days following the effective date of the IPO;
(b) use its reasonable best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements; and
(c) so long as the Holder owns any Registrable Securities, furnish to
the Holder upon request, (x) a written statement by the Company as to the status
of its compliance
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with the reporting requirements of Rule 144 (at any time from and after ninety
(90) days following the effective date of the IPO, and of the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), (y) a copy of the most recent annual or quarterly report of the
Company, and (z) such other reports and documents so filed as the Holder may
reasonably request in availing itself of any rule of regulation of the SEC
allowing the Holder to sell any such securities without registration.
7. Selection of Counsel. In connection with any registration of
Registrable Securities pursuant to Sections 2 or 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration.
8. Miscellaneous.
(a) Holdback Agreement. If the Company effects any registration in
connection with an underwritten public offering (including the IPO) of the
Common Stock (whether pursuant to this Agreement or otherwise), each Holder of
Registrable Securities will, if requested by the Company, enter into an
agreement with the Company and the underwriter or underwriters of such offering
(in form reasonably acceptable to the Company) pursuant to which such Holder
will agree not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of, including any sale pursuant to Rule 144
under the Securities Act, any equity securities of the Company, or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering), within seven days before, or ninety (90) days (or one hundred eighty
(180) days in the case of an IPO) after, the effective date of such
registration. The Company may impose stop - transfer instructions with respect
to the Registrable Securities subject to the foregoing restriction until the end
of said 180-day or 90-day period.
(b) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
Registrable Securities that own, in the aggregate, at least fifty percent (50%)
of the Registrable Securities then outstanding and Executive (so long as
Executive holds more than five percent (5%) of the Registrable Securities then
outstanding); provided that any amendment, action or omission to act that would
disproportionately and adversely affect the rights of any Holder under this
Agreement shall also require the consent of such Holder. Each Holder of
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(b), whether or not such Registrable
Securities shall have been marked to indicate such consent.
(c) Successors, Assigns and Transferees. This Agreement shall not be
assigned; provided that (i) any Carlyle Holder may assign all or part of their
rights and obligations under this Agreement to any transferee who has acquired
Registrable Securities from any such Carlyle Holder to the extent that such
transfer does not violate the Stockholders Agreement and such transferee agrees
in writing to be bound by the terms of this Agreement and (ii) any Executive
Holder may assign all or part of his rights and obligations under this Agreement
to a transferee who has acquired Registrable Securities from such Executive
Holder
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to the extent such transfer does not violate the Stockholders Agreement and such
transferee agrees in writing to be bound by the provisions of this Agreement;
provided further that, notwithstanding the foregoing, Executive may not transfer
his rights to request registration pursuant to Section 3 hereof, except that, in
the event of death or legal disability of Executive, such rights shall vest in
the executor or trustee that controls the Registrable Securities held by
Executive immediately prior to such death or legal disability. Subject to the
foregoing restrictions, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their successors and assigns.
(d) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
If to the Company: Sunshine Acquisition Corporation
c/o The Carlyle Group
101 South Tryon Street
Charlotte, NC 28280
Attention: Claudius E. Watts IV
Facsimile: 704-632-0299
With a copy to: Latham & Watkins LLP
(which shall not 555 Eleventh Street, N.W., Suite 1000
constitute notice) Washington, DC 20004
Attention: Daniel T. Lennon, Esq.
Facsimile: 202-637-2201
If to any other Holder of Registrable Securities, to the address of such other
Holder as shown in the stock record book of the Company, or to such other
address as any of the above shall have designated in writing to all of the other
above. All such notices and communications shall be deemed to have been given or
made (A) when delivered by hand, (B) five (5) business days after being
deposited in the mail, postage prepaid or (C) when telecopied, receipt
acknowledged.
(e) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may be executed by facsimile
signature(s).
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(h) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without giving effect to
the choice of law principles therein).
(i) Specific Performance; Submission to Jurisdiction. The parties
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in Court of Chancery or other courts of the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of the Court of Chancery or other courts of the
State of Delaware in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from such court, (iii) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the Court of Chancery or other courts of the
State of Delaware and (iv) to the fullest extent permitted by Law, consents to
service being made through the notice procedures set forth in Section 8(d). Each
party hereto hereby agrees that, to the fullest extent permitted by Law, service
of any process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 8(d) shall be effective service of
process for any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby.
(j) Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the request
of any other party, to execute and deliver any further instruments or documents
and to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
(k) Termination. The provisions of this Agreement (other than Section
5) shall terminate (A) with respect to any Holder, at such time as all of the
Registrable Securities then owned by such Holder could be sold pursuant to Rule
144(k), (B) upon execution of a written agreement of each Holder to terminate
this Agreement or (C) at such time as there shall be no Registrable Securities
outstanding.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
SUNSHINE ACQUISITION CORPORATION
By: /s/ Claudius E. Watts, IV
------------------------------------
Name: Claudius E. Watts, IV
Title: President
CARLYLE PARTNERS IV, L.P.
a Delaware limited partnership
BY:
TC GROUP IV, L.P.,
ITS GENERAL PARTNER
BY:
TC GROUP IV, L.L.C.,
ITS GENERAL PARTNER
BY:
TC GROUP, L.L.C.,
ITS MANAGING MEMBER
BY:
TCG HOLDINGS, L.L.C.,
ITS MANAGING MEMBER
By: /s/ Claudius E. Watts, IV
------------------------------------
Name: Claudius E. Watts, IV
Title: Managing Director
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CP IV COINVESTMENT, L.P.
a Delaware limited partnership
BY:
TC GROUP IV, L.P.,
ITS GENERAL PARTNER
BY:
TC GROUP III, L.L.C.,
ITS GENERAL PARTNER
BY:
TC GROUP, L.L.C.,
ITS MANAGING MEMBER
BY:
TCG HOLDINGS, L.L.C.,
ITS MANAGING MEMBER
By: /s/ Claudius E. Watts, IV
------------------------------------
Name: Claudius E. Watts, IV
Title: Managing Director
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By: /s/ William C. Stone
------------------------------------
William C. Stone
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EXHIBIT A
SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
By execution of this signature page, _____________ hereby agrees to become a
party to, and to be bound by the obligations of, and receive the benefits of,
that certain Registration Rights Agreement, dated as of [__], 2005, by and among
Sunshine Acquisition Corporation, a Delaware corporation, Carlyle Partners IV,
L.P., a Delaware limited partnership, CP IV Coinvestment, L.P., a Delaware
limited partnership, and William C. Stone, an individual, as amended from time
to time thereafter.
----------------------------------------
[Name]
Notice Address:
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Registration Rights Agreement