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EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as
of
November 23, 2005, is made by and among Sunshine Acquisition
Corporation, a
Delaware corporation (the "Company"), Carlyle Partners IV, LP, a
Delaware
limited partnership ("CP IV"), CP IV Coinvestment, LP, a Delaware
limited
partnership ("Coinvest" and, together with CP IV, the "Initial
Carlyle
Investors"), William C. Stone, an individual ("Executive"), and
each of the
other stockholders of the Company that becomes a party hereto from
time to time
by executing a supplemental signature page in the form attached as
Exhibit A
hereto (the "Other Executive Investors" and, collectively with the
Initial
Carlyle Investors and Executive, the "Investors").
RECITALS
WHEREAS, the Initial Carlyle Investors and Executive are holders
of
the issued and outstanding shares of Common Stock; and
WHEREAS, the Company desires to provide to the Investors and to
each
other Holder (as defined below) rights to registration under the
Securities Act
(as defined below) of Registrable Securities (as defined below), on
the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of
the
mutual promises hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
1. Definitions. As used in this Agreement, the following
capitalized
terms shall have the following respective meanings:
"Carlyle Holders": (a) The Initial Carlyle Investors, (b) any
affiliate of any Initial Carlyle Investor that is issued shares of
Common Stock
after the date hereof and (c) any subsequent transferee of any
shares of Common
Stock issued at any time to the Persons listed in clause (a) or
clause (b)
above.
"Common Stock": The shares of common stock, par value $0.01 per
share,
of the Company and any stock into which such Common Stock may
thereafter be
converted or exchanged.
"Exchange Act": The Securities Exchange Act of 1934, as amended,
or
any similar federal statute then in effect, and a reference to a
particular
section thereof shall be deemed to include a reference to the
comparable
section, if any, of any such similar federal statute.
"Executive Holders": (a) Executive and (b) any subsequent
transferee
of any shares of Common Stock issued at any time to Executive.
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"Holder": Any Carlyle Holder, any Executive Holder and any
Other
Executive Investor.
"IPO": The initial public offering of Common Stock pursuant to
an
effective registration statement under the Securities Act.
"IPO Date": The first date of the issuance of Common Stock in an
IPO.
"Person": Any individual, partnership, joint venture,
corporation,
limited liability company, trust, unincorporated organization,
government or any
department or agency thereof or any other entity.
"Registrable Securities": Any shares of Common Stock held at any
time
by any Holder and any shares of Common Stock which may be issued or
distributed
in respect thereof by way of stock dividend or stock split or
other
distribution, recapitalization or reclassification. Any particular
Registrable
Securities that are issued shall cease to be Registrable Securities
when (i) a
registration statement with respect to the sale by the Holder of
such securities
shall have become effective under the Securities Act and such
securities shall
have been disposed of in accordance with such registration
statement, (ii) such
securities shall have been distributed to the public pursuant to
Rule 144 (or
any successor provision) under the Securities Act, (iii) all of the
Registrable
Securities then owned by such Holder could be sold pursuant to Rule
144(k) or
(iv) such securities shall have ceased to be outstanding.
"Registration Expenses": Any and all expenses incident to
performance
of or compliance with this Agreement, including, without
limitation, (i) all SEC
and stock exchange or National Association of Securities Dealers,
Inc. (the
"NASD") registration and filing fees (including, if applicable, the
fees and
expenses of any "qualified independent underwriter," as such term
is defined in
NASD conduct rule 2720, and of its counsel), (ii) all fees and
expenses of
complying with securities or blue sky laws (including fees and
disbursements of
counsel for the underwriters in connection with blue sky
qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery
expenses,
(iv) all fees and expenses incurred in connection with the listing
of the
Registrable Securities on any securities exchange pursuant to
clause (vi) of
Section 4 and all rating agency fees, (v) the fees and
disbursements of counsel
for the Company and of its independent public accountants,
including the
expenses of any special audits and/or "cold comfort" letters
required by or
incident to such performance and compliance, (vi) the reasonable
fees and
disbursements of counsel selected pursuant to Section 7 hereof by
the Holders of
the Registrable Securities being registered to represent such
Holders in
connection with each such registration, and (vii) other reasonable
out-of-pocket
expenses of Holders (provided that such expenses shall not include
expenses of
counsel other than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or
any
similar federal statute then in effect, and a reference to a
particular section
thereof shall be deemed to include a reference to the comparable
section, if
any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other
federal
agency at the time administering the Securities Act or the Exchange
Act.
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"Selling Expenses" Underwriting discounts and commissions and
transfer
taxes, if any, applicable to the sale of Registrable
Securities.
"Stockholders Agreement": The Stockholders Agreement, dated as of
the
date hereof, among the Company, the Initial Carlyle Investors and
Executive.
2. Incidental Registrations. (a) Right to Include Registrable
Securities. If the Company at any time after the IPO Date proposes
to register
shares of its Common Stock under the Securities Act (other than (i)
a
registration statement filed by the Company in connection with the
IPO, (ii) a
registration statement on Form S-4 or S-8, or any successor or
other forms
promulgated for similar purposes, or (iii) a registration statement
with respect
to corporate reorganizations or other transactions under Rule 145
of the
Securities Act or any successor rule promulgated for similar
purposes), whether
or not for sale for its own account (including, without limitation,
any
registration effected pursuant to Section 3 hereof), in a manner
which would
permit registration of Registrable Securities for sale to the
public under the
Securities Act, it will, at each such time, give prompt written
notice to all
Holders of Registrable Securities of its intention to do so and
will afford each
such Holder an opportunity to include in such registration all or
part of the
Registrable Securities held by such Holder. Upon the written
request of any such
Holder made within fifteen (15) days after the receipt of any such
notice (which
request shall specify the Registrable Securities intended to be
disposed of by
such Holder), the Company will, subject to Section 2(c) below, use
its
reasonable best efforts to effect the registration under the
Securities Act of
all Registrable Securities which the Company has been so requested
to register
by the Holders to the extent requisite to permit the disposition of
the
Registrable Securities so to be registered; provided that (i) if,
at any time
after giving written notice of its intention to register any
securities and
prior to the effective date of the registration statement filed in
connection
with such registration, the Company shall determine for any reason
not to
proceed with the proposed registration of the securities to be sold
by it, the
Company may, at its election, give written notice of such
determination to each
Holder of Registrable Securities and, thereupon, shall be relieved
of its
obligation to register any Registrable Securities in connection
with such
registration, and (ii) if such registration involves an
underwritten offering,
all Holders of Registrable Securities requesting to be included in
the Company's
registration must sell their Registrable Securities to the
underwriters selected
by the Company on the same terms and conditions as apply to the
Company
(including entering into an underwriting agreement in customary
form with the
underwriter or underwriters selected for such offering by the
Company), as may
be customary or appropriate in combined primary and secondary
offerings. If a
registration requested pursuant to this Section 2(a) involves an
underwritten
public offering, any Holder of Registrable Securities requesting to
be included
in such registration may elect, in writing at least ten (10) days
prior to the
effective date of the registration statement filed in connection
with such
registration, not to register such securities in connection with
such
registration.
(b) Expenses. The Company will pay all Registration Expenses
incurred
in connection with each registration of Registrable Securities
pursuant to this
Section 2. All Selling Expenses applicable to Registrable
Securities sold by
Holders incurred in connection with each registration pursuant to
this Section 2
shall be borne by the Holders of the Registrable Securities so
registered pro
rata based on the number of securities so registered.
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(c) Priority in Incidental Registrations. If a registration
pursuant
to this Section 2 involves an underwritten offering and the
managing underwriter
determines in good faith that marketing factors require a
limitation on the
number of securities to be underwritten, the number of securities
that may be
included will be limited to the number of securities that, in the
opinion of
such underwriter, should be included and the securities to be
included in the
registration shall be allocated first, to the Company, and second,
to all
requesting Holders on the basis of the relative number of
Registrable Securities
then held by each such Holder (provided that any securities thereby
allocated to
any such Holder that exceed such Holder's request will be
reallocated among the
remaining requesting Holders in like manner).
3. Registration on Request. (a) At anytime, after the date that is
six
(6) months after the IPO Date, upon the written request of (i) the
Holder or
Holders of a majority of the Registrable Securities held by the
Carlyle Holders
(the "Carlyle Demand Party") requesting that the Company effect the
registration
under the Securities Act of all or part of the Registrable
Securities held by
the Carlyle Holders (a "Carlyle Demand"), or (ii) Executive
requesting that the
Company effect the registration under the Securities Act of all or
part of the
Registrable Securities held by the Executive Holders (an "Executive
Demand"; for
purposes of this Section 3, "Demand Party" shall mean the Carlyle
Demand Party,
in the case of a Carlyle Demand, or Executive, in the case of an
Executive
Demand), and specifying the amount and intended method of
disposition thereof,
the Company thereupon will, as expeditiously as possible, subject
to the
limitations of this Section 3, use its reasonable best efforts to
effect the
registration under the Securities Act of (i) such Registrable
Securities which
the Company has been so requested to register by the Demand Party,
(ii) such
Registrable Securities which the Company has been requested to
register by other
Holders of Registered Securities exercising their rights under
Section 2 hereof
with respect to such registration and (iii) any shares of Common
Stock that the
Company desires to include in such registration, in each case, to
the extent
necessary to permit the disposition (in accordance with the
intended method
thereof as aforesaid) of the Registrable Securities so to be
registered;
provided that the Carlyle Demand Party shall not be entitled to
make a Carlyle
Demand at any time that the Carlyle Holders hold less than five
percent (5%) of
the Registrable Securities then outstanding; provided further that
Executive
shall not be entitled to make an Executive Demand at any time that
the Executive
Holders hold less than five percent (5%) of the Registrable
Securities then
outstanding. If any registration effected pursuant to this Section
3 is intended
to involve an underwritten offering, the managing underwriter for
such offering
shall be selected by the Company (and shall be reasonably
acceptable to the
Demand Party).
(b) Expenses. The Company will pay all Registration Expenses
incurred
in connection with each registration of Registrable Securities
pursuant to this
Section 3. All Selling Expenses applicable to Registrable
Securities sold by
Holders incurred in connection with each registration pursuant to
this Section 3
shall be borne by the Holders of the Registrable Securities so
registered pro
rata based on the number of securities so registered.
(c) Priority in Requested Registrations. If a requested
registration
pursuant to this Section 3 involves an underwritten offering and
the managing
underwriter determines in good faith that marketing factors require
a limitation
on the number of securities to be underwritten, the number of
securities that
may be included will be limited to the number of securities that,
in the opinion
of such managing underwriter, should be included and the
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securities to be included in the registration shall be allocated
first, to the
Demand Party and the other Holders requesting inclusion of
Registrable
Securities in such registration on the basis of the relative number
of
Registrable Securities then held by each such Holder (provided that
any
securities thereby allocated to any such Holder that exceed such
Holder's
request will be reallocated among the remaining Holders in like
manner), and
second, to the Company.
(d) Limitation on Registration on Request. Notwithstanding anything
in
this Section 3 to the contrary, (i) the Company shall not be
obligated to take
any action to effect any registration pursuant to this Section 3 if
the Company
has previously effected a number of registrations upon the request
of a Demand
Party pursuant to this Section 3 equaling or exceeding four (4)
registrations,
in the case of the Carlyle Demand Party, and three (3)
registrations, in the
case of Executive and (ii) the Company shall not be obligated to
effect more
than three (3) registrations pursuant to this Section 3 in any
year; provided,
however, that no registration effected pursuant to this Section 3
will count
towards the foregoing numerical limits on the number of
registrations that may
be requested by a Demand Party pursuant to this Section 3 if the
Registrable
Securities proposed to be sold by such Demand Party in such
registration are cut
back pursuant to Section 3(c).
(e) Postponements in Requested Registrations. (i) If the Company
shall
at any time furnish to the Demand Party a certificate signed by its
chairman of
the board, chief executive officer, president or any other of its
authorized
officers stating that the filing of such registration statement
would be
materially detrimental to the Company or its stockholders, the
Company may
postpone the filing of a registration statement required by this
Section 3 for
up to one hundred eighty (180) days and (ii) if the Board of
Directors of the
Company determines in its good faith judgment that the registration
and offering
otherwise required by this Section 3 would have an adverse effect
on a then
contemplated public offering of the Company's Common Stock, the
Company may
postpone the filing of a registration statement required by this
Section 3,
during the period starting with the sixtieth (60th) day immediately
preceding
the date of the anticipated filing of, and ending on a date one
hundred eighty
(180) days following the effective date of, the registration
statement relating
to such other public offering. The Company shall promptly give the
Demand Party
requesting registration thereof pursuant to this Section 3 written
notice of any
postponement made in accordance with the preceding sentence.
4. Registration Procedures. If and whenever the Company is required
to
use its reasonable best efforts to effect or cause the registration
of any
Registrable Securities under the Securities Act as provided in this
Agreement,
the Company will (to the extent not relieved of such obligation as
provided in
Section 2 hereof), as expeditiously as possible:
(i) prepare and, in any event within sixty (60) days after the end
of
the
period within which a request for registration may be given to
the
Company pursuant to
Section 2 or 3, file with the SEC a registration
statement with respect to such Registrable Securities and use
its
reasonable best efforts to cause such registration statement to
become
effective and, upon the request of the Holders of a majority of
the
Registrable Securities registered thereunder, keep such
Registration
Statement effective for up to one hundred eighty (180) days or, if
earlier,
unti
