EXHIBIT 3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
PROMEDCO MANAGEMENT COMPANY
GS CAPITAL PARTNERS III, L.P.
and
The Parties Listed On The Signature Page Hereto
July 13, 2000
<PAGE>
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of
July 13, 2000, by and among PROMEDCO MANAGEMENT COMPANY, a Delaware
corporation (the "Company"), GS CAPITAL PARTNERS III, L.P., a Delaware
limited partnership ("GSCP"), certain affiliates of GSCP set forth on the
signature page of this Agreement (the "GSCP Affiliates", and collectively
with GSCP and including their respective successors and permitted assigns,
the "GSCP Parties") and MTS Investors E, L.P., a Delaware limited
partnership ("MTS", and together with their respective successors and
permitted assigns, the "MTS Entities").
WHEREAS, the Company and the GSCP Parties have entered into a
Securities Purchase Agreement, dated as of January 13, 2000, a First
Amendment to Securities Purchase Agreement, dated as of May 5, 2000 and a
Second Amendment to Securities Purchase Agreement, dated as of July 12,
2000 (as amended, the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, the GSCP Parties
purchased 425,000 shares of Series A Preferred Stock and 125,000 shares of
Series B Preferred Stock; and
WHEREAS, the GSCP Parties are contemplating transferring shares of
Series A Preferred Stock and Series B Preferred Stock to MTS after the date
hereof (the "MTS Transfer");
WHEREAS, in connection with the Company and the GSCP Parties entering
into the Purchase Agreement and in contemplation of the MTS Transfer, the
Company has agreed to provide the registration rights set forth in this
Agreement.
ACCORDINGLY, the parties hereto agree as follows:
1. Certain Definitions.
-------------------
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
"Affiliate" means (i) with respect to any Person, any other Person
that, directly or indirectly controls, is controlled by, or is under common
control with, such Person or (ii) with respect to any individual, shall
also mean the spouse or child of such individual; provided, that neither
the Company nor any Person controlled by the Company shall be deemed to be
an Affiliate of any Holder.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company, as amended.
"Common Stock Equivalents" means any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock.
"Holder" or "Holders" means any party who is a signatory to this
Agreement and any party who shall hereafter acquire and hold Registrable
Securities.
"Major Holder" means with respect to any registration the Holder that,
together with its Affiliates, includes the largest number of Registrable
Securities in such registration.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Second Closing" shall have the meaning ascribed thereto in the
Purchase Agreement.
"Series A Preferred Stock" shall mean the shares of the Company's
Series A Preferred Stock, par value $0.01 per share.
"Series B Preferred Stock" shall mean the shares of the Company's
Series B Preferred Stock, par value $0.01 per share.
"Registrable Securities" means (a) any shares of Common Stock or
Common Stock Equivalents owned by the GSCP Parties or the MTS Entities at
any time, (b) any shares of Common Stock issued or issuable upon the
conversion, exercise or exchange of any shares of Series A Preferred Stock
or Series B Preferred Stock owned by the GSCP Parties or the MTS Entities
at any time, and (c) any shares of Common Stock issued with respect to the
securities referred to in clauses (a), (b) by way of a stock dividend,
stock split or reverse stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or otherwise. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to
the sale of such securities shall have been declared effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (B) such securities shall have
been sold (other than in a privately negotiated sale) pursuant to Rule 144
(or any successor provision) under the Securities Act and in compliance
with the requirements of paragraphs (f) and (g) of Rule 144
(notwithstanding the provisions of paragraph (k) of such Rule) or (C) such
securities may be sold pursuant to Rule 144(k) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration Rights.
-------------------
2.1. Demand Registrations.
--------------------
(a) (i) Subject to Sections 2.1(b) and 2.3 below, each of (i) the
GSCP Parties and (ii) the MTS Entities, shall have the right to require the
Company to file a registration statement under the Securities Act covering
all or any part of their respective Registrable Securities, by delivering a
written request therefor to the Company specifying the number of
Registrable Securities to be included in such registration by such
Holder(s) and the intended method of distribution thereof. All such
requests by any Holder(s) pursuant to this Section 2.1(a)(i) are referred
to herein as "Demand Registration Requests," and the registrations so
requested are referred to herein as "Demand Registrations" (with respect to
any Demand Registration, the Holder(s) making such demand for registration
being referred to as the "Initiating Holder"). As promptly as practicable,
but no later than ten days after receipt of a Demand Registration Request,
the Company shall give written notice (the "Demand Exercise Notice") of
such Demand Registration Request to all Holders of record of Registrable
Securities. After the Company has effected two Demand Registrations
pursuant to this Section 2.1(a)(i) at the request of the GSCP Parties and
one Demand Registration pursuant to this Section 2.1(a)(i) at the request
of the MTS Entities, the related registration statements have been declared
effective, and with respect to a shelf registration pursuant to Rule 415
under the Securities Act, the distribution contemplated thereunder
completed, the Company shall have no further obligation under this Section
2.1(a)(i); provided however, that with respect to a shelf registration
pursuant to Rule 415 under the Securities Act, such registration statement
shall have been effective for a period of not less than 60 days.
(ii) The Company, subject to Sections 2.3 and 2.6, shall
include in a Demand Registration (x) the Registrable Securities of the
Initiating Holder and (y) the Registrable Securities of any other Holder
which shall have made a written request to the Company for inclusion in
such registration (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder) within 30
days after the receipt of the Demand Exercise Notice (or, 15 days if, at
the request of the Initiating Holder or the Major Holder participating in
such registration, the Company states in such written notice or gives
telephonic notice to all Holders, with written confirmation to follow
promptly thereafter, that such registration will be on a Form S-3).
(iii) The Company shall, as expeditiously as possible, use
its best efforts to (x) effect such registration under the Securities Act
(including, without limitation, by means of a shelf registration pursuant
to Rule 415 under the Securities Act if so requested and if the Company is
then eligible to use such a registration) of the Registrable Securities
which the Company has been so requested to register, for distribution in
accordance with such intended method of distribution, and (y) if requested
by the Initiating Holder or the Major Holder participating in such
registration, obtain acceleration of the effective date of the registration
statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a) to
the Holders are subject to the following limitations: (i) the Company shall
not be required to cause a registration pursuant to Section 2.1(a)(i) to be
declared effective within a period of 180 days after the effective date of
any registration statement of the Company registering shares of Common
Stock or Common Stock Equivalents (other than pursuant to a registration
statement on Form S-4 or S-8 or an equivalent registration form then in
effect); and (ii) if the Company shall furnish to Holders who have elected
to exercise their rights under Sections 2.1(a)(i) and 2.1(a)(ii) a
certificate signed by the President or the Chief Executive Officer of the
Company stating that, in the good faith judgment of the Board of Directors
of the Company, effecting the registration would adversely affect any
material financing, material acquisition, or disposition of material assets
or stock, or merger or other material comparable transaction or that
disclosure of certain information that would otherwise be required to be
disclosed in a Registration Statement to be filed pursuant to Section
2.1(a)(i) would be seriously detrimental to the Company, and it is
therefore desirable and in the best interests of the Company to defer the
filing of such registration statement, then the Company shall have the
right to defer such filing for a period of time after receipt of such
request; provided, however, that the Company may not defer such filing more
than once in any 12-month period and the aggregate period of time during
any such 12-month period which the Company may defer such filing shall not
exceed 90 days.
If the Company shall give any notice of postponement of any
registration statement, the Company shall not, during the period of
postponement, register any Common Stock, other than pursuant to a
registration statement on Form S-4 or S-8 (or an equivalent registration
form then in effect). If the Company shall withdraw or prematurely
terminate a registration statement filed under Section 2.1(a)(i) as a
result of any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, the Company shall not be
considered to have effected an effective registration for the purposes of
this Agreement until the Company shall have filed a new registration
statement covering the Registrable Securities covered by the withdrawn
registration statement and such registration statement shall have been
declared effective and shall not have been withdrawn. If the Company shall
give any notice of postponement of a registration statement, the Company
shall, at the end of such postponement period (which shall not exceed 90
days), use its best efforts to effect the registration under the Securities
Act of the Registrable Securities covered by the postponed registration
statement in accordance with this Section 2.1 (unless the Initiating Holder
shall have withdrawn such request, in which case the Company shall not be
considered to have effected an effective registration for the purposes of
this Agreement).
(c) If the Company, or any stockholder (other than a Holder) that
has piggyback registration rights granted to such stockholder by the
Company prior to the date hereof ("Additional Piggyback Rights"), wishes to
offer any of its securities in connection with any registration initiated
pursuant to this Section 2.1, no such securities may be offered by the
Company or such other stockholder without the consent of the Major Holder
unless the terms of such Additional Piggyback Rights require that such
securities be registered in connection with any such Demand Registration,
in which case such securities shall be offered only to the extent permitted
by Section 2.3(a).
(d) In connection with any Demand Registration, the Major Holder
participating in such registration shall have the right to designate, (i)
if Goldman, Sachs & Co. or one of its Affiliates (such Person, "GS & Co.")
is not retained by the Company to serve as the lead managing underwriter in
connection with such registration, the lead managing underwriter for such
registration and (ii) each other managing underwriter for such
registration, provided that each such other managing underwriter is
reasonably satisfactory to the Company.
2.2. Piggyback Registrations.
-----------------------
(a) If, at any time, the Company proposes or is required to
register any of its equity securities under the Securities Act (other than
pursuant to (i) registrations on such form or similar form(s) solely for
registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger or consolidation or (ii) a Demand
Registration under Section 2.1) on a registration statement on Form S-1,
Form S-2 or Form S-3 (or an equivalent general registration form then in
effect), whether or not for its own account, the Company shall give prompt
written notice of its intention to do so to each of the Holders of record
of Registrable Securities. Upon the written request of any such Holder,
made within 20 days following the receipt of any such written notice (which
request shall specify the maximum number of Registrable Securities intended
to be disposed of by such Holder and the intended method of distribution
thereof), the Company shall, subject to Sections 2.2(b), 2.3 and 2.6
hereof, use its best efforts to cause all such Registrable Securities, the
Holders of which have so requested the registration thereof, to be
registered under the Securities Act (with the securities which the Company
at the time proposes to register) to permit the sale or other disposition
by the Holders (in accordance with the intended method of distribution
thereof) of the Registrable Securities to be so registered. There is no
limitation on the number of such piggyback registrations pursuant to the
preceding sentence which the Company is obligated to effect. No
registration effected under this Section 2.2(a) shall relieve the Company
of its obligations to effect Demand Registrations.
(b) If, at any time after giving written notice of its intention
to register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give written notice of such determination to all Holders of record of
Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, without
prejudice, however, to the rights of Holders under Section 2.1, and (ii) in
the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made
in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable and, after
making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was
made.
2.3. Allocation of Securities Included in Registration Statement.
----------------------------------------------------------------
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and the lead managing underwriter of such
offering (the "Manager") shall advise the Company that, in its view, the
number of securities requested to be included in such registration by the
Holders or any other persons (including those shares of Common Stock
requested by the Company and pursuant to Additional Piggyback Rights (each
as permitted by the Major Holder)) exceeds the largest number (the "Section
2.1 Sale Number") that can be sold in an orderly manner in such offering
within a price range acceptable to the Major Holder, the Company shall
include in such registration:
(i) all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities; provided,
however, that, if the number of such Registrable Securities exceeds
the Section 2.1 Sale Number, the number of such Registrable Securities
(not to exceed the Section 2.1 Sale Number) to be included in such
registration shall be allocated on a pro rata basis among all Holders
requesting that Registrable Securities be included in such
registration, based on the number of Registrable Securities then owned
by each Holder requesting inclusion in relation to the number of
Registrable Securities owned by all Holders requesting inclusion;
(ii) to the extent that the number of Registrable Securities
to be included by all Holders pursuant to clause (i) of this Section
2.3(a) is less than the Section 2.1 Sale Number, securities that the
Company proposes to register (as approved by the Major Holder); and
(iii) to the extent that the number of Registrable
Securities to be included by all Holders and the number of securities
to be included by the Company is less than the Section 2.1 Sale
Number, any other securities that the Holders thereof propose to
register pursuant to the exercise of Additional Piggyback Rights (as
approved by the Major Holder).
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; provided, however, that (x) such request must be made in writing
prior to the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such registration and
(y) such withdrawal shall be irrevocable and, after making such withdrawal,
a Holder shall no longer have any right to include Registrable Securities
in the registration as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering that was initially proposed by the Company as a
primary registration of its securities and the Manager shall advise the
Company that, in its view, the number of securities requested to be
included in such registration exceeds the number (the "Section 2.2 Company
Sale Number") that can be sold in an orderly manner in such registration
within a price range acceptable to the Company, the Company shall include
in such registration:
(i) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Company
proposes to register for its own account (the "Company Securities");
(ii) to the extent that the number of Company Securities is
less than the Section 2.2 Company Sale Number, the remaining shares to
be included in such registration shall be allocated on a pro rata
basis among all Holders of Registrable Securities requesting that
Registrable Securities be included in such registration, based on the
number of Registrable Securities then owned by each Holder requesting
inclusion in relation to the number of Registrable Securities owned by
all Holders requesting inclusion; and
(iii) to the extent the number of Company Securities plus
the number of Registrable Securities requested to be included by all
Holders is less than the Section 2.2 Company Sale Number, any other
securities that the Holders thereof propose to register pursuant to
the exercise of Additional Piggyback Rights.
(c) If any registration pursuant to Section 2.2 involves an
underwritten offering that was initially proposed by holders of securities
of the Company other than the Holders or the Company (the "Registering
Stockholders") and the Manager shall advise such Registering Stockholders
that, in its view, the number of securities requested to be included in
such registration (the "Stockholder Securities") exceeds the number (the
"Section 2.2 Stockholder Sale Number") that can be sold in an orderly
manner in such registration within a price range acceptable to the Company,
the Company shall include in such registration:
(i) all Stockholder Securities requested to be included in
such registration by the Registering Stockholders; provided, however,
that, if the number of such Stockholder Securities exceeds the Section
2.2 Stockholder Sale Number, the number of such Stockholder Securities
(not to exceed the Section 2.2 Stockholder Sale Number) to be included
in such registration shall be allocated on a pro rata basis among all
Registering Stockholders requesting that Stockholder Securities be
included in such registration, based on the number of Stockholder
Securities then owned by each Registering Stockholder requesting
inclusion in relation to the number of Stockholder Securities owned by
all Registering Stockholders requesting inclusion;
(ii) to the extent that the number of Stockholder Securities
to be included by all Registering Stockholders pursuant to clause (i)
of this Section 2.3(c) is less than the Section 2.2 Stockholder Sale
Number, Company Securities that the Company proposes to register; and
(iii) to the extent that the number of Stockholder
Securities plus the number of Company Securities is less than the
Section 2.2 Stockholder Sale Number, the remaining shares to be
included in such registration shall be allocated on a pro rata basis
among all Holders of Registrable Securities requesting that
Registrable Securities be included in such registration, based on the
number of Registrable Securities then owned by each Holder requesting
inclusion in relation to the number of Registrable Securities owned by
all Holders requesting inclusion.
2.4. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect or
cause the registration of any Registrable Securities under the Securities
Act as provided in this Agreement, the Company shall, as expeditiously as
possible:
(a) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC for the disposition of such
Registrable Securities in accordance with the intended method of
disposition thereof, which form (i) shall be selected by the Company and
(ii) shall, in the case of a shelf registration, be available for the sale
of the Registrable Securities by the selling Holders thereof and such
registration statement shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and the Company shall
use its best efforts to cause such registration statement to become and
remain effective (provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, or
comparable statements under securities or blue sky laws of any
jurisdiction, the Company will furnish to one counsel for the Holders
participating in the planned offering (selected by the Major Holder) and
the underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the Company
shall not file any registration statement or amendment thereto or any
prospectus or supplement thereto to which the Holders of a majority of the
Registrable Securities covered by such registration statement or the
underwriters, if any, shall reasonably object in writing on the basis that
the registration statement fails to comply in any material respect with the
requirements of the Securities Act and the rules and regulations
promulgated thereunder);
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
for such period (which shall not be required to exceed 180 days in the case
of a registration pursuant to Section 2.1 or 120 days in the case of a
registration pursuant to Section 2.2) as any seller of Registrable
Securities pursuant to such registration statement shall request and to
comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including
all exhibits), and the prospectus included in such registration statement
(including each preliminary prospectus) in conformity with the requirements
of the Securities Act, and other documents, as such seller and underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such seller (the Company
hereby consenting to the use in accordance with all applicable law of each
such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or supplement
thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or
prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers or underwriter, if
any, to consummate the disposition of the Registrable Securities in such
jurisdictions, except that in no event shall the Company be required to
qualify to do business as a foreign corporation in any jurisdiction where
it would not, but for the requirements of this paragraph (d), be required
to be so qualified, to subject itself to taxation in any such jurisdiction
or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if
any: (i) when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to
the registration statement or any post-effective amendment, when the same
has become effective; (ii) of any request by the SEC or state securities
authority for amendments or supplements to the registration statement or
the prospectus related thereto or for additional information; (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) of
the existence of any fact of which the Company becomes aware which results
in the registration statement, the prospectus related thereto or any
document incorporated therein by reference containing an untrue statement
of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statement therein not misleading;
and (vi) if at any time the representations and warranties contemplated by
any underwriting agreement, securities sale agreement, or other similar
agreement, relating to the offering shall cease to be true and correct in
all material respects; and, if the notification relates to an event
described in clause (v), the Company shall promptly prepare and furnish to
each such seller and each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading;
(f) comply with all applicable rules and regulations of the SEC,
and make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in
any event within 17 months thereafter), an earnings statement (which need
not be audited) covering the period of at least twelve consecutive months
beginning with the first day of the Company's first calendar quarter after
the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if
the listing of such Registrable Securities is then permitted under the
rules of such exchange, or (ii) if no similar securities are then so
listed, to either cause all such Registrable Securities to be listed on a
national securities exchange or to secure designation of all such
Registrable Securities as a Nasdaq National Market "national market system
security" within the meaning of Rule 11Aa2-1 of the Exchange Act or,
failing that, secure Nasdaq National Market authorization for such shares
and, without limiting the generality of the foregoing, take all actions
that may be required by the Company as the issuer of such Registrable
Securities in order to facilitate the managing underwriter's arranging for
the registration of at least two market makers as such with respect to such
shares with the National Association of Securities Dealers, Inc. (the
"NASD");
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) in connection with an underwritten offering, enter into such
customary agreements (including, if applicable, an underwriting agreement)
and take such other actions as the Holders of a majority of the Registrable
Securities or the Major Holder participating in such offering shall
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities. The Holders of the Registrable Securities
which are to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that the Company
make to and for the benefit of such Holders the representations, warranties
and covenants of the Company which are being made to and for the benefit of
such underwriters and which are of the type customarily provided to
institutional investors in secondary offerings;
(j) use its best efforts to obtain an opinion from the Company's
counsel and a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters as are customarily
covered by such opinions and "cold comfort" letters delivered to
underwriters in underwritten public offerings, which opinion and letter
shall be reasonably satisfactory to the underwriter, if any, and to the
Major Holder participating in such offering, and furnish to each Holder
participating in the offering and to each underwriter, if any, a copy of
such opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the offering
and each underwriter, if any, copies of all correspondence between the SEC
and the Company, its counsel or auditors and all memoranda relating to
discussions with the SEC or its staff with respect to the registration
statement, other than those portions of any such memoranda which contain
information subject to attorney-client privilege with respect to the
Company, and, upon receipt of such confidentiality agreements as the
Company may reasonably request, make reasonably available for inspection by
any seller of such Registrable Securities covered by such registration
statement, by any underwriter, if any, participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement only for the purpose of
conducting reasonable due diligence in connection with such disposition;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement and prior to the
effectiveness thereof) provide copies of such document to counsel for the
selling Holders of Registrable Securities and to each managing underwriter,
if any, and make the Company's representatives reasonably available for
discussion of such document and make such changes in such document
concerning the selling holders prior to the filing thereof as counsel for
such selling Holders or underwriters may reasonably request;
(p) furnish to the Major Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy, and to
each other Holder participating in the offering, without charge, at least
one photocopy of a signed copy, of the registration statement and any
post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(q) cooperate with the selling Holders of Registrable Securities
and the managing underwriter, if any, to facilitate the timely preparation
and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in
such names in accordance with the underwriting agreement prior to any sale
of Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the selling Holders of
Registrable Securities at least three business days prior to any sale of
Registrable Securities and instruct any transfer agent and registrar of
Registrable Securities to release any stop transfer orders in respect
thereof;
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities; and
(s) take no direct or indirect action prohibited by Regulation M
under the Exchange Act; provided, however, that to the extent that any
prohibition is applicable to the Company, the Company will take such action
as is necessary to make any such prohibition inapplicable.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request provided
that such information is necessary for the Company to consummate such
registration and shall be used only in connection with such registration.
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 paragraph (e) of this Section 2.4, such Holder
will discontinue such Holder's 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 paragraph (e) of this Section 2.4 and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus covering such Registrable Securities
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 2.4 shall be extended by the number of days
during such period from and including the date of the giving of such notice
to and including the date when each seller of any Registrable Securities
covered by such registration statement shall have received the copies of
the supplemented or amended prospectus contemplated by paragraph (e) of
this Section 2.4.
If any such registration statement or comparable statement under
"blue sky" laws refers to any Holder by name or otherwise as the Holder of
any securities of the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder and the Company, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state
"blue sky" or securities law then in force, the deletion of the reference
to such Holder.
2.5. Registration Expenses.
---------------------
(a) "Expenses" shall mean any and all fees and expenses incident
to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) SEC, stock exchange or NASD registration
and filing fees and all listing fees and fees with respect to the inclusion
of securities in Nasdaq National Market, (ii) fees and expenses of
compliance with state securities or "blue sky" laws and in connection with
the preparation of a "blue sky" survey, including without limitation,
reasonable fees and expenses of blue sky counsel, (iii) printing and
copying expenses, (iv) messenger and delivery expenses, (v) expenses
incurred in connection with any road show, (vi) fees and disbursements of
counsel for the Company, (vii) with respect to each registration, the fees
and disbursements of one counsel for the selling Holder(s) (selected by the
Major Holder), (viii) fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort"
letter) and fees and expenses of other persons, including special experts,
retained by the Company, (ix) fees and expenses payable to a Qualified
Independent Underwriter (as such term is defined in Schedule E to the
By-Laws of the NASD) and (x) any other fees and disbursements of
underwriters, if any, customarily paid by issuers or sellers of securities
(collectively, "Expenses").
(b) The Company shall pay all Expenses with respect to any Demand
Registration.
(c) Notwithstanding the foregoing, (x) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which
the offering is made and (y) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with
respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Holder, and (z) the Company
shall, in the case of all registrations under this Article 2, be
responsible for all its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties).
2.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in
the case of a registration under Section 2.2 if the Company has determined
to enter into an underwriting agreement in connection therewith, all
securities to be included in such registration shall be subject to an
underwriting agreement and no person may participate in such registration
unless such person agrees to sell such person's securities on the basis
provided therein and completes and executes all reasonable questionnaires,
and other documents (including custody agreements and powers of attorney)
which must be executed in connection therewith, and provides such other
information to the Company or the underwriter as may be necessary to
register such Person's securities.
2.7. Limitations on Sale or Distribution of Other Securities. (a) Each
Holder of Registrable Securities agrees that, to the extent requested in
writing by a managing underwriter of any underwritten public offering
effected by the Company for its own account it will not sell any Common
Stock (other than as part of such underwritten public offering) during the
time period reasonably requested by the managing underwriter, which period
shall not exceed 90 days.
(b) The Company hereby agrees that, if it shall previously have
received a request for registration pursuant to Section 2.1 or 2.2, and if
such previous registration shall not have been withdrawn or abandoned, the
Company shall not sell, transfer, or otherwise dispose of, any Common
Stock, or any other equity security of the Company or any security
convertible into or exchangeable or exercisable for any equity security of
the Company (other than as part of such underwritten public offering, a
registration on Form S-4 or Form S-8 or any successor or similar form which
is then in effect or upon the conversion, exchange or exercise of any then
outstanding Common Stock Equivalent), until a period of 180 days shall have
elapsed from the effective date of such previous registration; and the
Company shall so provide in any registration rights agreements hereafter
entered into with respect to any of its securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. Indemnification. (a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to this Article
2, the Company will, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder of Registrable Securities, its
directors, officers, fiduciaries, employees and stockholders or general and
limited partners (and the directors, officers, employees and stockholders
thereof), each other Person who participates as an underwriter or a
Qualified Independent Underwriter, if any, in the offering or sale of such
securities, each officer, director, employee, stockholder, fiduciary,
managing director, agent, affiliates, consultants, representatives,
successors, assigns or partner of such underwriter or Qualified Independent
Underwriter, and each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, against any and
all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected
with the Company's consent, which consent shall not be unreasonably
withheld or delayed) to which each such indemnified party may become
subject under the Securities Act or otherwise in respect thereof
(collectively, "Claims"), insofar as such Claims arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such securities
were registered under the Securities Act or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement
thereto, together with the documents incorporated by reference therein, or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (iii) any violation by the Company of any federal, state or
common law rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration, and the Company will reimburse any such indemnified party for
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such Claim as such
expenses are incurred; provided, however, that the Company shall not be
liable to any such indemnified party in any such case to the extent such
Claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact made in such registration statement or amendment thereof or supplement
thereto or in any such prospectus or any preliminary, final or summary
prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such indemnified party
specifically for use therein. Such indemnity and reimbursement of expenses
shall remain in full force and effect regardless of any investigation made
by or on behalf of such indemnified party and shall survive the transfer of
such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is
being effected (and, if the Company requires as a condition to including
any Registrable Securities in any registration statement filed in
accordance with Section 2.1 or 2.2, any underwriter and Qualified
Independent Underwriter, if any) shall, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as
set forth in paragraph (a) of this Section 2.9) to the fullest extent
permitted by law the Company, its officers and directors, each Person
controlling the Company within the meaning of the Securities Act and all
other prospective sellers and their respective directors, officers,
fiduciaries, managing directors, employees, agents, affiliates,
consultants, representatives, successors, assigns, general and limited
partners, stockholders and respective controlling Persons with respect to
any untrue statement or alleged untrue statement of any material fact in,
or omission or alleged omission of any material fact from, such
registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company or its representatives by or on behalf of such Holder or
underwriter or Qualified Independent Underwriter, if any, specifically for
use therein and reimburse such indemnified party for any legal or other
expenses reasonably incurred in connection with investigating or defending
any such Claim as such expenses are incurred; provided, however, that the
aggregate amount which any such Holder shall be required to pay pursuant to
this Section 2.9(b) and Sections 2.9(c) and (e) shall in no case be greater
than the amount of the net proceeds received by such person upon the sale
of the Registrable Securities pursuant to the registration statement giving
rise to such claim. Such indemnity and reimbursement of expenses shall
remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified party and shall survive the transfer of such
securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities
with respect to any required registration or other qualification of
securities under any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of the commencement
of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure
of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails
to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so; or (ii)
if such indemnified party who is a defendant in any action or proceeding
which is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or
(iii) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in
any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm
of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded
that there may be legal defenses available to such party or parties which
are not available to the other indemnified parties or to the extent
representation of all indemnified parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct) and the
indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or
is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any Claim
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the
other hand, with respect to such offering of securities. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. If, however, the allocation
provided in the second preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this Section 2.9(e) were to
be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the preceding sentences of this Section 2.9(e). The amount paid or payable
in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. Notwithstanding anything in this
section 2.9(e) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.9(e) to contribute
any amount in excess of the net proceeds received by such indemnifying
party from the sale of Registrable Securities in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate,
less the amount of any indemnification payment made by such indemnifying
party pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section
2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. Underwritten Offerings.
----------------------
3.1. Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Holders pursuant to a
registration requested under Section 2.1, the Company shall enter into a
customary underwriting agreement with the underwriters. Such underwriting
agreement shall be satisfactory in form and substance to the Major Holder
and shall contain such representations and warranties by, and such other
agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without
limitation, indemnities and contribution agreements on substantially the
same terms as those contained herein. Any Holder participating in the
offering shall be a party to such underwriting agreement and may, at its
option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such
Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holder; provided, however, that the
Company shall not be required to make any representations or warranties
with respect to written information specifically provided by a selling
Holder for inclusion in the registration statement. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders with respect to title and ownership of shares as are
customary in agreements of that type.
3.2. Piggyback Underwritten Offerings. In the case of a registration
pursuant to Section 2.2 hereof, if the Company shall have determined to
enter into an underwriting agreement in connection therewith, all of the
Holders' Registrable Securities to be included in such registration shall
be subject to such underwriting agreement. Any Holder participating in such
registration may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Holder and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holder. Such
underwriting agreement shall also contain such representations and
warranties by the participating Holders as are customary in agreements of
that type, on substantially the same terms as those contained herein.
3.3. Underwriting Services. Notwithstanding anything contained herein
to the contrary, in connection with a Demand Registration pursuant to
Section 2.1, GS & Co. shall have the right to act as the lead managing
underwriter in any registration including Registrable Securities. If GS &
Co. acts as a managing underwriter in any such registered offering, to the
extent required by applicable law, a Qualified Independent Underwriter
shall be retained by the Company and shall be acceptable to GS & Co. (which
consent shall not be unreasonably withheld), and the Company shall pay all
fees and expenses (other than underwriting discounts and commissions) of
such Qualified Independent Underwriter.
4. General.
-------
4.1. Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision
of shares which would adversely affect the ability of the Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration. The Company agrees that it
will take all reasonable steps necessary to effect a subdivision of shares
if in the reasonable judgment of (a) the Initiating Holder of a Demand
Registration Request, (b) the Major Holder or (c) the managing underwriter
for the offering in respect of such Demand Registration Request, such
subdivision would enhance the marketability of the Registrable Securities.
Each Holder agrees to vote all of its shares of capital stock in a manner,
and to take all other actions necessary, to permit the Company to carry out
the intent of the preceding sentence including, without limitation, voting
in favor of an amendment to the Company's Certificate of Incorporation in
order to increase the number of authorized shares of capital stock of the
Company.
4.2. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or
a registration statement pursuant to the requirements of the Securities Act
in respect of the Common Stock or securities of the Company convertible
into or exchangeable or exercisable for Common Stock, the Company covenants
that (i) so long as it remains subject to the reporting provisions of the
Exchange Act, it will timely file the reports required to be filed by it
under the Securities Act or the Exchange Act (including, but not limited
to, the reports under Sections 13 and 15(d) of the Exchange Act referred to
in subparagraph (c)(1) of Rule 144 under the Securities Act), and (ii) will
take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (A) Rule
144 under the Securities Act, as such Rule may be amended from time to
time, or (B) any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
4.3. Nominees for Beneficial Owners. If Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its option, be treated as the Holder of such Registrable
Securities for purposes of any request or other action by any Holder or
Holders of Registrable Securities pursuant to this Agreement (or any
determination of any number or percentage of shares constituting
Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement), provided that the Company shall
have received assurances reasonably satisfactory to it of such beneficial
ownership.
4.4 Amendments and Waivers. The terms and provisions of this Agreement
may be modified or amended, or any of the provisions hereof waived,
temporarily or permanently, pursuant to the written consent of the Company
and GSCP.
4.5. Notices. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by such party
to the other parties:
(i) if to the Company, to:
ProMedCo Management Company
801 Cherry Street, Suite 1450
Fort Worth, Texas 76102
Facsimile: (817) 335-8321
Attention: Robert Smith
Chief Financial Officer
with a copy to (which shall not constitute notice):
Dyer, Ellis & Joseph
600 New Hampshire, NW
Washington, DC 20037
Telecopy: (202) 944-3068
Attention: Michael Joseph, Esq.
(ii) if to the GSCP Parties, to:
GS Capital Partners III, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Telecopy: (212) 357-5505
Attention: Mr. Sanjeev Mehra
Attention: Ben Adler, Esq.
with copies to (which shall not constitute notice):
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Telecopy: (212) 859-8587
Attention: Robert C. Schwenkel, Esq.
(iii) if to the MTS Entities, to:
MTS Investors E, L.P.
c/o MTS Partners, L.P.
65 E. 55th Street, 33rd Floor
New York, NY 10022
Telecopy: (212) 857-3195
Attention: Curtis S. Lane
with a copy to (which shall not constitute notice):
Schulte Roth & Zabel LLP
900 Third Avenue, 20th Floor
New York, NY 10022
Telecopy: (212) 756-2431
Attention: Andre Weiss, Esq.
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
4.6. Miscellaneous. (a) This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and the
respective successors, personal representatives and assigns of the parties
hereto, whether so expressed or not. If any Person shall acquire
Registrable Securities from any Holder, in any manner, whether by operation
of law or otherwise, such transferee shall promptly notify the Company and
such Registrable Securities acquired from such Holder shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement. If the Company
shall so request, any such successor or assign shall agree in writing to
acquire and hold the Registrable Securities acquired from such Holder
subject to all of the terms hereof. If any Holder shall acquire additional
Registrable Securities, such Registrable Securities shall be subject to all
of the terms, and entitled to all the benefits, of this Agreement.
(b) This Agreement and the other Transaction Documents and the
Confidentiality Agreement contain the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAW.
(d) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
(e) This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid, but if any
provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
(g) The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled
to injunctive relief, including specific performance, to enforce such
obligations without the posting of any bond, and, if any action should be
brought in equity to enforce any of the provisions of this Agreement, none
of the parties hereto shall raise the defense that there is an adequate
remedy at law.
(h) The parties hereto agree to cooperate with each other, and at
the request of the 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.
4.7. Prior Agreements. Each of the Holders and the Company hereby
agrees that any agreement previously entered into by it pursuant to which
the Company granted to it any registration rights shall be superseded by
this Agreement and each such agreement (and any rights such Holder has
pursuant to such agreement) shall be terminated, null and void and no
longer in effect, including, without limitation, the Registration Rights
Agreement, dated as of January 13, 2000, by and among the Company and the
GSCP Parties and the First Amendment to the Registration Rights Agreement,
dated as of May 5, 2000.
4.8. No Inconsistent Agreements. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are
not inconsistent with any other agreements to which the Company is a party
or by which it is bound. Without the prior written consent of GSCP, neither
the Company nor any Holder will, on or after the date of this Agreement,
enter into any agreement with respect to its securities which is
inconsistent with the rights granted in this Agreement or otherwise
conflicts with the provisions hereof, other than any lock-up agreement with
the underwriters in connection with any registered offering effected
hereunder, pursuant to which the Company shall agree not to register for
sale, and the Company shall agree not to sell or otherwise dispose of,
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, for a specified period following the
registered offering. The Company further agrees that if any other
registration rights agreement entered into after the date of this Agreement
with respect to any of its securities contains terms which are more
favorable to, or less restrictive on, the other party thereto than the
terms and conditions contained in this Agreement are (insofar as they are
applicable) to the GSCP Parties, then the terms and conditions of this
Agreement shall immediately be deemed to have been amended without further
action by the Company or any of the Holders of Registrable Securities so
that the GSCP Parties shall be entitled to the benefit of any such more
favorable or less restrictive terms or conditions.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the date first above written.
PROMEDCO MANAGEMENT COMPANY
By: /s/ Robert D. Smith
-------------------------------------
Name: Robert D. Smith
Title: Chief Financial Officer
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C.,
its general partner
By: /s/ John E. Bowman
------------------------------
Name: John E. Bowman
Title: Vice President
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
its general partner
By: /s/ John E. Bowman
------------------------------
Name: John E. Bowman
Title: Vice President
GOLDMAN, SACHS & CO. VERWALTUNGS GMBH
By: /s/ Joseph H. Gleberman
-------------------------------------
Name: Joseph H. Gleberman
Title: Managing Director
and
By: /s/ John E. Bowman
-------------------------------------
Name: John E. Bowman
Title: Registered Agent
STONE STREET FUND 2000, L.P.
By: Stone Street 2000, L.L.C.,
its general partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Vice President
MTS INVESTORS E, L.P.
By: MTS Investors, L.L.C.,
its general partner
By: /s/ Curtis S. Lane
-----------------------------------
Name: Curtis S. Lane
Title: Partner
