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Exhibit 10.21
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of February17, 2000, by and among NSP
Holdings L.L.C., a Delaware limited liability company (together with its
successors and permitted assigns, the "COMPANY"), the Persons listed on the
signature page hereof as of the date of this Agreement (the "INITIAL
INVESTORS"), and each of the other Persons who becomes a party to this Agreement
after the date hereof pursuant to paragraph 10(e) or 10(f) below. Certain
capitalized terms used herein are defined in paragraph 9 below.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the Company
has completed the initial public offering of any of its equity securities under
the Securities Act (the "INITIAL IPO"), the holders of a majority of the Argosy
Investor Registrable Securities and a majority of the Hancock Investor
Registrable Securities may each request registration under the Securities Act of
1933, as amended (the "SECURITIES ACT"), of (x) all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration
("LONG-FORM REGISTRATIONS"), and (y) all or any portion of their Registrable
Securities on Form S-2 or S-3 (including pursuant to Rule 415 under the
Securities Act) or any similar short-form registration ("SHORT-FORM
REGISTRATIONS") if available. All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "DEMAND REGISTRATIONS." Each request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within 10 days after receipt of any such request, the Company
shall give written notice of such requested registration to all other holders of
Registrable Securities and, subject to paragraph 1(d) below, shall include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after the
receipt of the Company's notice.
(b) LONG-FORM REGISTRATIONS. The holders of a majority of the
Argosy Investor Registrable Securities and a majority of the Hancock Investor
Registrable Securities shall each be entitled to request 2 Long-Form
Registrations. The Company shall pay all Registration Expenses in connection
with any Demand Registration. A registration shall not count as one of the
permitted Long-Form Registrations until it has become effective and the holders
of Registrable Securities initially requesting the Long-Form Registration are
able to register and sell at least 90% of the Registrable Securities requested
to be included in such registration by such holders; PROVIDED that in any event
the Company shall pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not it has become
effective. All Long-Form Registrations shall be underwritten registrations.
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(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the Argosy Investor Registrable Securities and the holders of a majority of the
Hancock Investor Registrable Securities shall each be entitled to request an
unlimited number of Short-Form Registrations in which the Company shall pay all
Registration Expenses. Notwithstanding anything contained herein to the
contrary, Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has
become subject to the reporting requirement of the Securities Exchange Act, the
Company shall use its reasonable efforts to make Short-Form Registrations on
Form S-3 available for the sale of Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least 75% of
the Investor Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing (with a copy to each party hereto requesting registration
of Registrable Securities) that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold without adversely affecting the
marketability of the offering, the Company shall include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold without adversely affecting the
marketability of the offering, first pro rata among the respective holders of
the Registrable Securities (including, without limitation, the holders of
Registrable Securities which shall have requested to be included in such Demand
Registration pursuant to the provisions of paragraph 2) on the basis of the
amount of Registrable Securities owned by each such holder and then to the
extent that any securities which are not Registrable Securities can still be
included, pro rata among the respective holders thereof on the basis of the
amount of such securities owned by each such holder. Any Persons other than
holders of Registrable Securities who participate in Demand Registrations which
are not at the Company's expense must pay their share of the Registration
Expenses as provided in paragraph 5 hereof.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration. The Company shall be entitled to
postpone, for a reasonable period of time not in excess of 90 days after its
receipt of an initial request for a Demand Registration pursuant to this
Agreement, the filing of any registration statement if at the time it received a
request therefor, the Board determines, in its reasonable business judgment,
that such registration and offering would be reasonably expected to have an
adverse effect on any financing, acquisition, corporate reorganization or other
material transaction or development involving the Company or any of its
subsidiaries or affiliates; PROVIDED that the Company shall only be entitled to
one postponement in any 365-day period. The Company shall give the holders of
Investor Registrable Securities making such request written notice of such
determination. In the event of such postponement, the Company shall file such
registration statement as soon as practicable after it shall determine, in its
reasonable business
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judgment, that such registration and offering will not interfere with the
matters described in the first sentence of this paragraph 1(e) or, if later, at
the end of such 90-day period. If the Company shall postpone the filing of any
registration statement, the holders of Investor Registrable Securities making
such request shall have the right to withdraw their request for such
registration by giving notice to the Company within 15 days of the notice of
postponement; PROVIDED, however, that in the event that the holders of Investor
Registrable Securities withdraw their request in the foregoing manner, such
request shall not be counted for purposes of determining the number of
registrations to which the holders of Investor Registrable Securities are
entitled pursuant to paragraph (a) above.
(f) SELECTION OF UNDERWRITERS. The Company will have the right to
select the investment banker(s) and manager(s) to administer the offering.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its equity securities (including any proposed registration of the
Company's securities by any third party) under the Securities Act whether or not
for sale for its own account, (other than pursuant to a Demand Registration
pursuant to paragraph 1(a) except as provided in the last sentence of paragraph
1(a), or a registration on Form S-4 or S-8 or any successor or similar forms,
but including the Initial IPO) and the registration form to be used may be used
for the registration of Registrable Securities (a "PIGGYBACK REGISTRATION"), the
Company shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration (which notice shall be
given at least 30 days prior to the date the applicable registration statement
is to be filed) and shall include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. Subject to the qualifications set forth in
paragraph 5(b), the Registration Expenses of the holders of Registrable
Securities shall be paid by the Company in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing (with a copy to each party
hereto requesting registration of Registrable Securities) that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the amount of
such securities owned by each such holder, and (iii) third, the other securities
requested to be included in such registration pro rata among the holders of such
securities on the basis of the amount of such securities shares owned by each
such holder.
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(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than the holders of Registrable Securities (a
"SECONDARY REGISTRATION"), and the managing underwriters advise the Company in
writing (with a copy to each party hereto requesting registration of Registrable
Securities) that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, except to the extent otherwise previously agreed
to by holders of a majority of the Registrable Securities, the securities
requested to be included therein by the holders requesting such registration,
together with Registrable Securities (including, without limitation,
Warrantholder Registrable Securities) requested to be included in such
registration, pro rata among the holders of such securities and Registrable
Securities on the basis of the amount of such securities owned by each such
holder, and (ii) second, other securities requested to be included in such
registration pro rata among the holders of such securities on the basis of the
amount of such securities owned by each such holder.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the Company will have the right to select the investment
banker(s) and manager(s) for the offering.
(f) COMPLIANCE WITH HART-SCOTT-RODINO ACT. If any holder of
Warrantholder Registrable Securities has elected to participate in a Piggyback
Registration pursuant to paragraph 2(a) and shall have notified the Company at
the time it elects to participate in a Piggyback Registration pursuant to
paragraph 2(a) that it may be required to file a Notification and Report Form
under the Hart-Scott-Rodino Act in connection with the exercise of Warrants,
then, in such event, the Company shall not consummate a sale of any securities
under such Piggyback Registration until the third (3rd) Business Day following
the expiration or termination of the applicable waiting period under the
Hart-Scott-Rodino Act so as to permit the lawful exercise of the Warrants held
by such holder prior to the consummation of such sale under such Piggyback
Registration.
3. HOLDBACK AGREEMENTS.
(a) To the extent not inconsistent with applicable law, each
holder of Registrable Securities shall not effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities, options or rights convertible into or exchangeable
or exercisable for such securities, during the period (the "LOCKUP PERIOD") (in
no case to exceed an aggregate of 180 days) prior to and after the effective
date of any (x) underwritten Demand Registration except as part of such
underwritten registration or (y) underwritten Piggyback Registration (except as
part of such underwritten registration or pursuant to registrations on Form S-4
or Form S-8 or any successor form) that is agreed to by the underwriter managing
the registered public offering and the Company (in the case of a Piggyback
Registration or Secondary Registration) or 75% of the Investor Registrable
Securities included in such registration (in the case of a Demand Registration),
except, in the case of any holder of Registrable Securities, to the extent that
such holder provides to the Company an opinion of nationally recognized outside
counsel to the effect
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that such holder is prohibited by applicable law or exercise of fiduciary duties
from agreeing to withhold Registrable Securities from sale or is acting in its
capacity as a fiduciary or investment advisor. Without limiting the scope of the
term "fiduciary," a holder shall be deemed to be acting as a fiduciary or an
investment advisor if its actions or the Registrable Securities proposed to be
sold are subject to the Employee Retirement Income Security Act of 1974, as
amended, or the Investment Company Act of 1940, as amended, or if such
Registrable Securities are held in a separate account under applicable insurance
law or regulation.
(b) The Company (i) agrees not to effect any public sale or
distribution of its equity securities, or any securities, options or rights
convertible into or exchangeable or exercisable for such securities, during the
LockUp Period, and (ii) agrees to reasonable efforts to cause, to the extent not
inconsistent with applicable law, each holder of its equity securities, or any
securities, options or rights convertible into or exchangeable or exercisable
for equity securities purchased from the Company at any time after the date of
this Agreement that holds more than 3% of the Company's common equity securities
on fully diluted basis (other than in a registered public offering) to agree not
to effect any public sale or distribution (including sales pursuant to Rule 144)
of any such securities during the LockUp Period.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its reasonable efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and use its reasonable efforts to cause such registration
statement to become effective (provided that within a reasonable time before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the counsel selected by the holders of 75%
of the Investor Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel);
(b) notify in writing each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for (i) a
period of not less than 180 days (subject to extension pursuant to paragraph
7(b)), or, if such registration statement relates to an underwritten offering,
such longer period as in the opinion of counsel for the underwriters a
prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer or (ii) such shorter period
as will terminate when all of the securities covered by such registration
statement during such period have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof
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set forth in such registration statement (but in any event not before the
expiration of any longer period required under the Securities Act), and to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until such time as all
of such securities have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company shall promptly furnish to such seller a reasonable number of
copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed; PROVIDED that in connection with (i) any Demand Registration or (ii) any
Piggyback Registration (other than in connection with a firm commitment
underwriting), the Company will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto (including such documents
incorporated by reference) to which the holders of a majority of the
Warrantholder Registrable Securities shall reasonably object, within fifteen
(15) days prior to the filing of such registration statement, based upon a
reasonable good faith belief that such registration statement, amendment,
prospectus, supplement or other document contains any untrue statement of a
material fact or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
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(in the case of any prospectus, in light of the circumstances under which they
were made) not misleading;
(g) provide a transfer agent and registrar for all such
Registrable Securities and a CUSIP number for all such Registrable Securities
not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement and assist
and, at the request of any participating underwriter, cause such officers or
directors to participate in presentations to prospective purchasers;
(j) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of paragraph 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, use its reasonable efforts promptly to obtain the withdrawal of
such order; and
(m) use its reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities.
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5. REGISTRATION EXPENSES.
(a) Subject to paragraph (b) below, all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, travel expenses, filing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
fees and disbursements of counsel for the Company and fees and disbursements of
all independent certified public accountants, underwriters including, if
necessary, a "qualified independent underwriter" within the meaning of the rules
of the National Association of Securities Dealers, Inc. (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne by the Company, except as
otherwise expressly provided in this Agreement, except that the Company shall,
in any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system (or any successor or similar system).
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel (in addition to local counsel) chosen by the holders of 75% of the
Investor Registrable Securities included in such registration and for the
reasonable fees and disbursements of each additional counsel retained by any
holder of Registrable Securities for the purpose of rendering a legal opinion on
behalf of such holder in connection with any underwritten Demand Registration or
Piggyback Registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities, its
officers, directors, agents, partners and employees and each Person who controls
such holder (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities, joint or several, together with reasonable costs
and expenses (including reasonable attorney's fees), to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any violation by the Company of the provisions of the Securities Act, (ii) any
untrue or alleged untrue statement of material fact contained (A) in any
registration statement, prospectus
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or preliminary prospectus or any amendment thereof or supplement thereto or (B)
in any application or other document or communication (in this paragraph 6
collectively called an "application") executed by or on behalf of the Company or
based upon written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify any securities covered by such registration
statement under the "blue sky" or securities laws thereof, or (iii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer, agent, employee, partner
and controlling Person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable 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 an untrue statement or alleged untrue statement, or omission or alleged
omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests (and is customarily provided by selling stockholders) for
use in connection with any such registration statement or prospectus and, to the
fullest extent permitted by law, will indemnify and hold harmless the other
holders of Registrable Securities and the Company, and their respective
directors, officers, agents and employees and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, together with reasonable costs and
expenses (including reasonable attorney's fees), to which such indemnified party
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or in any application or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein,
and such holder will reimburse the Company and each such other indemnified party
for any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, however,
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that the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of the commencement of
any action or proceeding with respect to which a claim for indemnification may
be made pursuant to this paragraph6, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding subparagraphs of this paragraph6, except to the extent, but
only to the extent to which, the indemnifying party is materially prejudiced
thereby and shall not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under this paragraph6. In case
any action or proceeding is brought against an indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, unless in the reasonable
opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, to assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party that it so chooses, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
(i) if the indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within 20 days after receiving notice from
such indemnified party that the indemnified party believes it has failed to do
so; or (ii) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably shall
have concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or (iii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct, then, in any such case, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there may be legal defenses
available to such party or parties which are not available to the other
indemnified parties or to the extent representation of all indemnified parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct) and the indemnifying party shall be liable for any
expenses therefor.
(d) No indemnifying party shall, without the written consent of
each indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(A) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim without any payment or
consideration provided or obligation incurred by any indemnified party and
(B) does not
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include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this paragraph 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any losses, claims, damages or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the sellers of Registrable
Securities and any other sellers participating in the registration statement on
the other hand or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative fault referred to in clause (i) above but also the relative
benefit of the Company on the one hand and of the sellers of Registrable
Securities and any other sellers participating in the registration statement on
the other in connection with the registration statement on the other in
connection with the statement or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the sellers of Registrable Securities and any other sellers participating in
the registration statement on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) to the Company bear to the total net proceeds from the offering
(before deducting expenses) to the sellers of Registrable Securities and any
other sellers participating in the registration statement. The relative fault of
the Company on the one hand and of the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other shall be
determined by reference to, among other things, whether the untrue or alleged
omission to state a material fact relates to information supplied by the Company
or by the sellers of Registrable Securities or other sellers participating in
the registration statement and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this paragraph 6
were determined by pro rata allocation (even if the sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph 6, no seller of Registrable Securities shall be
required to contribute pursuant to this paragraph6 any amount in excess of the
sum of (i) any amounts paid pursuant to paragraph 6(b) and (ii) net proceeds
received by such Seller from the sale of Registrable Securities covered by the
registration statement filed pursuant hereto. No person guilty of fraudulent
misrepresentation (within the meaning of Section11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
11
<Page>
(f) The indemnification and contribution by any such party
provided for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
(g) An indemnifying party shall make payments of all amounts
required to be made pursuant to the foregoing provisions of this paragraph 6 to
or for the account of the indemnified party from time to time promptly upon
receipt of bills or invoices relating thereto or when otherwise due or payable.
Without limiting the generality of the foregoing, each indemnifying party, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or proceeding arising out of or based upon any matter or subject for which
indemnity (or contribution in lieu thereof) may be available to any indemnified
party under this paragraph 6, will promptly reimburse each indemnified party, as
often as invoiced therefor (but in no event more often than monthly) for all
reasonable legal or other expenses incurred in connection with the investigation
or defense of any such claim, action, investigation, inquiry or proceeding,
notwithstanding the absence of any judicial determination as to the propriety or
enforceability of the indemnifying party's obligation to reimburse the
indemnified party for such expenses and notwithstanding the possibility that the
obligations to pay such expenses might later have been held to be improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement is held to be improper, the indemnified party agrees to promptly
return the amount so advanced to the indemnified party, together with interest,
compounded monthly, at the prime rate (or other commercial lending rate for
borrowers of the highest credit standing) listed from time to time in THE WALL
STREET JOURNAL which represents the base rate on corporate loans posted by a
substantial majority of the nation's thirty (30) largest banks. Any such interim
reimbursement payments which are not made to the indemnified party within thirty
(30) days of a request therefor shall bear interest at such prime rate from the
date of such request. To the extent required by any underwriter in connection
with the execution of any underwriting agreement pursuant to which the holders
shall be selling any Registrable Securities, the Company shall agree to
advancement of the expenses of such underwriter to at least the same extent as
provided in this paragraph 6.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any registration hereunder which
is underwritten unless such Person (i) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements, provided, in no event shall any holder of Registrable Securities
be required to indemnify any underwriter or other Person in any manner other
than that which is specifically set forth in paragraph6(b) with respect to its
indemnifications obligations to the Company and other holders of Registrable
Securities.
12
<Page>
(b) Each Person that is participating in any registration
hereunder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph 4(e) above, such
Person will forthwith discontinue the disposition of its Registrable Securities
pursuant to the registration statement until such Person's receipt of the copies
of a supplemented or amended prospectus as contemplated by such paragraph 4(e).
In the event the Company shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. RULE 144 AND RULE 144A REPORTING. With a view to making
available the benefits of certain rules and regulations of the Securities and
Exchange Commission that may permit the sale of Registrable Securities to the
public without registration, the Company agrees at all times after the Company
has filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Exchange Act to
use its reasonable efforts to: (a) make and keep public information regarding
the Company available as those terms are understood and defined in Rule 144 and
Rule 144A under the Securities Act; (b) file with the Securities and Exchange
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") at any time after it has become subject to such
reporting requirements; and (c) so long as a holder owns any Registrable
Securities, furnish to the holder forthwith upon written request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and Rule 144A, and of the Securities Act and the Exchange Act, a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents so filed as a holder may reasonably request in availing
itself of any rule or regulation of the Securities and Exchange Commission
allowing a holder to sell any such securities without registration.
9. DEFINITIONS.
"ARGOSY GROUP" is defined in the LLC Agreement.
"ARGOSY INVESTOR REGISTRABLE SECURITIES" means Investor Registrable
Securities held by members of the Argosy Group.
"BOARD" means (i) in the case of a Person that is a limited liability
company, the managers authorized to act therefor (or, of the limited liability
company has no managers, the members), (ii) in the case of a Person that is a
corporation, the board of directors of such Person or any committee authorized
to act therefor, (iii) in the case of a Person that is a limited partnership,
the board of directors of its corporate general partner (or, if the general
partner is itself a limited partnership, the board of directors of such general
partner's corporate general partner) and (iv) in the case of any other Person,
the board of directors, management committee or similar governing body
13
<Page>
or any authorized committee thereof responsible for the management of the
business and affairs of such Person.
"COMMON UNITS" has the meaning given to such term in the LLC
Agreement.
"HANCOCK GROUP" is defined in the LLC Agreement.
"HANCOCK INVESTOR REGISTRABLE SECURITIES" means Investor Registrable
Securities held by members of the Hancock Group.
"INVESTOR REGISTRABLE SECURITIES" means (i) any Common Units held by
members of the Argosy Group and the Hancock Group, and (ii) any securities
issued or issuable directly or indirectly with respect to the securities
referred to in clause (i) above by way of dividend or split or in connection
with a combination of securities, recapitalization, merger, consolidation, or
other reorganization, PROVIDED, however, that in the event that any equity
securities are issued which do not participate in the residual equity of the
Company ("NON-PARTICIPATING SECURITIES"), such Non-Participating Securities will
not be Registrable Securities.
"LLC AGREEMENT" means the Amended and Restated Limited Liability
Company Agreement of the Company, dated as of February17, 2000 (as the same may
be amended, modified, supplemented or waived from time to time).
"NON-PARTICIPATING SECURITIES" is defined in the definition of
Investor Registrable Securities noted above.
"OTHER REGISTRABLE SECURITIES" means (i) any Common Units of the
Company held by a Person who is a party to this Agreement that do not constitute
Investor Registrable Securities or Warrantholder Registrable Securities and (ii)
any securities of the Company issued or issuable directly or indirectly with
respect to the securities referred to in clause (i) above by way of dividend, or
split or in connection with a combination of securities, recapitalization,
merger, consolidation or other reorganization, including a recapitalization or
exchange; provided, however, that in the event that any such securities are
Non-Participating Securities, such Non-Participating Securities will not be
Other Registrable Securities.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"REGISTRABLE SECURITIES" means Investor Registrable Securities,
Warrantholder Registrable Securities and Other Registrable Securities. As to any
particular Registrable Securities, such securities shall cease to be Investor
Registrable Securities, Warrantholder Registrable Securities or Other
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
14
<Page>
compliance with Rule 144 under the Securities Act (or any similar rule then in
force). For purposes of this Agreement, a Person shall be deemed to be a holder
of Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder; provided that prior to
participating in any Demand Registration or Piggyback Registration, such Person
shall exercise rights to acquire such Registrable Securities.
"REQUIRED WARRANTHOLDERS" shall have the meaning ascribed to it in the
LLC Agreement.
"UNITS" means the Company's Common Units as described in the LLC
Agreement.
"WARRANT" means each warrant issued pursuant to the Warrant Agreement.
"WARRANT AGREEMENT" means the Warrant Agreement, dated as of February
[__], 2000, among the Company and the purchasers party thereto, as amended,
modified, supplemented or waived from time to time.
"WARRANTHOLDER REGISTRABLE SECURITIES" means (i) any Common Units of
the Company issued or issuable upon exercise of any Warrant held by a Person who
is a party to this Agreement and (ii) any securities of the Company issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) above by way of dividend, or split or in connection with a
combination of securities, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange; provided, however,
that in the event that any such securities are Non-Participating Securities,
such Non-Participating Securities will not be Warrantholder Registrable
Securities.
10. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(b) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any
15
<Page>
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the holders of Registrable Securities unless
such modification, amendment or waiver is approved in writing by (i) the Company
and (ii)the holders of at least 75% of the (A)Registrable Securities then in
existence, (B)Investor Registrable Securities then in existence and (C)Investor
Registrable Securities held by members of each of the Argosy Group and the
Hancock Group and then in existence; PROVIDED that no such amendment or action
which materially adversely affects any one holder of Registrable Securities, as
such, vis-a-vis the other holders of Registrable Securities, as such, shall be
effective against such holder without the prior written consent of such holder.
The failure of any party to enforce any of the provisions of this Agreement
shall in no way be construed as a waiver of such provisions and shall not affect
the right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms. Notwithstanding the foregoing no
amendment or modification of the provisions of, or the defined terms used in,
the 180 day limitation in paragraph 3(a) or the proviso in paragraph 7(a), shall
be effective against any holder of Warrantholder Registrable Securities without
the consent of the Required Warrantholders.
(e) ADDITIONAL PARTIES. Except as otherwise described below, the
governing body of the Company shall be entitled, but not obligated, to allow any
purchaser of equity securities (or securities or rights convertible or
exercisable into equity securities), of the same type and class of the
Registrable Securities, to execute a counterpart to this Agreement and become a
party hereto (each, an "ADDITIONAL PARTY"), in which case the equity securities
issued or issuable to any such Additional Party prior to the Initial IPO shall,
except if such Additional Party holds securities that meet the definition of
"Investor Registrable Securities" be deemed "Other Registrable Securities" for
purposes of this Agreement. Notwithstanding the foregoing, a Person who acquires
equity securities of the same type and class of the Registrable Securities
pursuant to the LLC Agreement shall be entitled to become an Additional Party
(and the Company shall be obligated to allow such Person to become an Additional
Party) by executing a counterpart hereof. Except as set forth in this paragraph
10(e), the Company will not grant to any other Persons any registration rights.
(f) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of the
purchasers or holders of any type of Registrable Securities are, except as
otherwise described herein, also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities. Notwithstanding the foregoing, in
order to obtain the benefit of this Agreement, any subsequent holder of
Registrable Securities must execute a counterpart to this Agreement, thereby
agreeing to be bound the terms hereof and, in connection with any such
assignment described in this paragraph 10(f) (whether by operation of law or
otherwise), such subsequent holder of Registrable Securities
16
<Page>
must also become subject to the terms and conditions (if any) contained in the
LLC Agreement in effect at the time of such assignment.
(g) 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 prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(h) GOVERNING LAW. The corporate law of the State of Delaware
shall govern all issues and questions concerning the relative rights of the
Company and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware. In furtherance of the foregoing,
the internal law of the State of Delaware shall control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even
though under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
(i) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to holder of Registrable Securities at the address
indicated on the books and records of the Company and to the Company at its
principal executive office (to the attention of the Company's president) or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
(j) WITHDRAWAL. At any time following the LockUp Period for the
Initial IPO, a holder of Registrable Securities (that together with its
affiliates holds less than 3% of the Company's common equity on a fully diluted
basis and is not otherwise an officer, director or employee of the Company) may,
upon written notice to the Company, withdraw as a holder of Registrable
Securities hereunder and, upon the receipt by the Company of such notice, no
longer be bound by any of the rights or obligations set forth herein (other than
those set forth in paragraph 6, which provisions shall continue to apply).
(k) ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties and supersede and preempt any prior understandings, agreements, or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way. Without limiting
17
<Page>
the generality of the foregoing, this Agreement amends and restates in its
entirety that certain Registration Rights Agreement, dated as of October 2,
1998, by and among the Company and the other Persons party thereto.
* * * * *
18
<Page>
AMERICAN GENERAL LIFE INSURANCE COMPANY
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY
THE FRANKLIN LIFE INSURANCE COMPANY
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
By: /s/ C. Scott Inglis
-----------------------------
C. SCOTT INGLIS
Its: INVESTMENT OFFICER
-----------------------------
[Signature Page to Registration Rights Agreement]
<Page>
ALLSTATE LIFE INSURANCE
COMPANY
By: /s/ [ILLEGIBLE]
---------------------------------
Its:
---------------------------------
By: /s/ David Walsh
---------------------------------
Its:
---------------------------------
Authorized Signatories
[Signature Page to Registration Rights Agreement]
<Page>
JOHN HANCOCK VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Daniel C. Budde
---------------------------------
Its: Authorized Signatory
[Signature Page to Registration Rights Agreement]
<Page>
HMI Inc.
By: /s/ [ILLEGIBLE]
---------------------------------
Its:
---------------------------------
[ILLEGIBLE]
[Signature Page to Registration Rights Agreement]
<Page>
HANCOCK MEZZANINE PARTNERS L.P.
By: Hancock Mezzanine Investment LLC
Its: General Partner
/s/ Daniel C. Budde
----------------------------------
By: John Hancock Mutual Life Insurance
Company
Its: Investment Advisor
[Signature Page to Registration Rights Agreement]
<Page>
JOHN HANCOCK LIFE INSURANCE
COMPANY
By: /s/ Daniel C. Budde
---------------------------------
Its: Daniel C. Budde
---------------------------------
Managing Director
[Signature Page to Registration Rights Agreement]
<Page>
JOHN HANCOCK VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Daniel C. Budde
---------------------------------
Its: Daniel C. Budde
---------------------------------
Managing Director
[Signature Page to Registration Rights Agreement]
<Page>
SIGNATURE 3 LIMITED
By: John Hancock Life Insurance
Company, as Portfolio Adviser
By: /s/ Daniel C. Budde
---------------------------------
Its: Daniel C. Budde
---------------------------------
Managing Director
[Signature Page to Registration Rights Agreement]
<Page>
SIGNATURE 4 LIMITED
By: John Hancock Life Insurance
Company, as Portfolio Adviser
By: /s/ Daniel C. Budde
---------------------------------
Its: Daniel C. Budde
---------------------------------
Managing Director
[Signature Page to Registration Rights Agreement]
<Page>
INVESTORS PARTNER LIFE
INSURANCE COMPANY
By: /s/ Daniel C. Budde
---------------------------------
Its: Daniel C. Budde
---------------------------------
AUTHORIZED SIGNATORY
[Signature Page to Registration Rights Agreement]
<Page>
Argosy-Safety Products L.P.
By: /s/ [ILLEGIBLE]
---------------------------------
Its:
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
NSP HOLDINGS L.L.C.
By: /s/ Robert A. Peterson
---------------------------------
Its:
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
/s/ Robert A. Peterson
----------------------------------------
Robert A. Peterson
[Signature Page to Registration Rights Agreement]
<Page>
/s/ David F. Myers
----------------------------------------
David F. Myers, Jr.
[Signature Page to Registration Rights Agreement]
<Page>
/s/ Robert J. Larsen
----------------------------------------
Robert J. Larsen
[Signature Page to Registration Rights Agreement]
<Page>
CITIZENS CAPITAL, INC.
By: /s/ [ILLEGIBLE]
---------------------------------
Its: Managing Director
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
CONTINENTAL ILLINIOS VENTURE
CORP.
By: /s/ Marcus D. Wedner
---------------------------------
Its: Marcus D. Wedner
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
Caravelle Investment Fund, L.L.C.
By: Caravelle Advisor & LLC
----------------------------------
Its: Investment Manager and Attorney
in Fact
----------------------------------
/s/ [ILLEGIBLE]
----------------------------------
Executive Director
[Signature Page to Registration Rights Agreement]
<Page>
/s/ William Grilliot
----------------------------------------
William Grilliot
[Signature Page to Registration Rights Agreement]
<Page>
/s/ Mary Grilliot
----------------------------------------
Mary Grilliot
[Signature Page to Registration Rights Agreement]
<Page>
CONTINENTAL CASUALTY COMPANY
Form Approved
by Law Dept.
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
- --------------- -------------------------------------
Its: Vice President
[Signature Page to Registration Rights Agreement]
<Page>
CIBC WMV INC.
By: /s/ [ILLEGIBLE]
---------------------------------
Its: Managing Director
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
Caravelle Norcross Investment Corporation
By: /s/ [ILLEGIBLE]
---------------------------------
Its: President
---------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
ALLIANCE INVESTMENT
OPPORTUNITIES FUND, L.L.C.
By: Alliance Investment Opportunities
Management, L.L.C.
Its: Managing Member
By: Alliance Capital Management, L.P.
Its: Managing Member
By: Alliance Capital Management
Corporation
Its: General Partner
By: /s/ [ILLEGIBLE]
----------------------------------
Its: SENIOR VICE PRESIDENT
----------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
Co-Invest Merchant Fund 2 L.L.C.
By: /s/ [ILLEGIBLE]
----------------------------------
Its:
----------------------------------
[Signature Page to Registration Rights Agreement]
<Page>
ALBION ALLIANCE MEZZANINE FUND,
L.P
By: /s/ U. Peter C. Cummeson
----------------------------------
Its: U. PETER C. CUMMESON
----------------------------------
SENIOR VICE PRESIDENT
[Signature Page to Registration Rights Agreement]
<Page>
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA Investments, Inc.
(authorized agent)
By: /s/ Edward Lewis
----------------------------------
Its: EDWARD LEWIS
----------------------------------
MANAGING DIRECTOR
[Signature Page to Registration Rights Agreement]
<Page>
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By: CIGNA Investments, Inc.
(authorized-agent)
By: /s/ Edward Lewis
----------------------------------
Its: EDWARD LEWIS
----------------------------------
MANAGING DIRECTOR
[Signature Page to Registration Rights Agreement]
<Page>
PPM AMERICA SPECIAL
INVESTMENTS CBO II, L.P.
By PPM AMERICA, INC., its Attorney in
Fact
By: /s/ Levovd E. Robinson
----------------------------------
Name: Levovd E. Robinson, CFA
----------------------------------
Its: Senior Managing Director
----------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
<Page>
PPM AMERICA SPECIAL
INVESTMENTS FUND, L.P.
By PPM AMERICA, INC., its Attorney in
Fact
By: /s/ Levovd E. Robinson
----------------------------------
Name: Levovd E. Robinson, CFA
----------------------------------
Its: Senior Managing Director
----------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
<Page>
J.H. WHITNEY MEZZANINE FUND, L.P.
By: Whitney GP, L.L.C.
By: /s/ Joseph Carrabino
----------------------------------
Name: Joseph Carrabino, Jr.
A Managing Member
[Signature Page to Registration Rights Agreement]