Exhibit 10.1

REGISTRATION RIGHTS AGREEMENT

 

TABLE OF CONTENTS

 

 

 

		PAGE
ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms			1
Section 1.02. General Interpretive Principles			5
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Registration			6
Section 2.02. Piggyback Registrations			10
Section 2.03. Selection of Underwriter(s), etc.			11
Section 2.04. Registration Procedures			11
Section 2.05. Holdback Agreements			16
Section 2.06. Underwriting Agreement in Underwritten Offerings			16
Section 2.07. Registration Expenses Paid By Company			17
Section 2.08. Indemnification			17
Section 2.09. Reporting Requirements; Rule 144			19
ARTICLE 3
MISCELLANEOUS
Section 3.01. Term			20
Section 3.02. Notices			20
Section 3.03. Successors, Assigns and Transferees			22
Section 3.04. Governing Law; No Jury Trial			23
Section 3.05. Specific Performance			23
Section 3.06. Headings			23
Section 3.07. Severability			23
Section 3.08. Amendment; Waiver			23
Section 3.09. Further Assurances			24
Section 3.10. Counterparts			24

 

 

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REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT, dated as of May 2, 2021 (this “Agreement”), is by and among Privia Health Group, Inc., a Delaware corporation (the “Company”), Brighton Health Group Holdings, LLC (the “Parent Company”), and the parties listed on Schedule I hereto and any transferee of Registrable Securities to whom any Person who is a party to this Agreement shall assign any rights hereunder in accordance with Section 3.03 (each such Person, a “Holder”).

W I T N E S S E T H:

WHEREAS, the Company is currently contemplating an underwritten initial public offering (“IPO”) of its Common Stock (as defined below); and

WHEREAS, as of the date hereof, each of the Holders holds Class A Units (as defined below) in the Parent Company (and, following the consummation of the IPO, will receive Shares and cash proceeds from the Parent Company’s sale of Shares in the IPO in respect of such Class A Units pursuant to the Distribution (as defined below);

WHEREAS, the Company desires to grant registration rights to the Holders in respect of the Shares to be received by them pursuant to the Distribution on the terms and conditions set out in this Agreement;

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS; DISTRIBUTION

Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

“Action” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority or any federal, state, local, foreign or international arbitration or mediation tribunal.

“Affiliate” in respect of a Person, means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. Notwithstanding anything to the contrary set forth herein, for purposes of this Agreement neither Goldman nor Pamplona shall be deemed to be an Affiliate of the other. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Butler Holder” means the Butler Member and any Permitted Transferee.

“Butler Member” has the meaning set forth in the Parent Company LLC Agreement.

“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions are authorized or obligated by law to be closed in New York, New York.

“Class A Unit” has the meaning set forth in the Parent Company LLC Agreement.

“Common Stock” means the common shares, par value $0.01 per share, of the Company and any shares into which such common stock may be converted.

“Company Notice” has the meaning set forth in Section 2.01(a).

“Company Takedown Notice” has the meaning set forth in Section 2.01(f).

“Demand Registration” has the meaning set forth in Section 2.01(a).

“Eligible Holders” has the meaning set forth in Section 2.01(a).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“FINRA” means the Financial Industry Regulatory Authority.

“Goldman” means Broad Street Principal Investments, L.L.C., MBD 2013 Holdings, L.P., Bridge Street 2013 Holdings, L.P. and their respective successors or Affiliates.

“Governmental Authority” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof.

“HEP Member” has the meaning set forth in the Parent Company LLC Agreement.

“Initiating Holder” has the meaning set forth in Section 2.01(a).

“IPO” has the meaning set forth in the recitals to this Agreement.

“Loss” or “Losses” has the meaning set forth in Section 2.08(a).

“NIGI Member” has the meaning set forth in the Parent Company LLC Agreement.

“Pamplona” means Pamplona Capital Partners III, L.P. or its respective successors or Affiliates.

“Parent Company LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of Brighton Health Group Holdings, LLC (f/k/a MC Acquisition Holdings I, L.L.C.), dated as of August 29, 2014, as amended on May 4, 2017 and as of February 1, 2019.

 

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“Permitted Transferee”, as to any Holder, has the meaning set forth in the Parent Company LLC Agreement.

“Person” means an individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority.

“Piggyback Registration” has the meaning set forth in Section 2.02(a).

“Post-IPO Distribution” has the meaning set forth in Section 1.03 below.

“Principal Terms Letter” means that certain Summary of Principal Terms, dated April 29, 2021, by and among the Parent Company, Goldman, Pamplona, Brighton Family, LLC, Jeffrey B. Butler, David Rothenberg, HEP Privia Investors, LLC and National Investment Group, Inc.

“Privia Holders” means each of the Butler Holder, the HEP Member, the NIGI Member and the Rothenberg Holder.

“Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments, and all other material incorporated by reference in such prospectus.

“Registrable Securities” means any Shares and any securities issued or issuable directly or indirectly with respect to, in exchange for, upon the conversion of or in replacement of the Shares, whether by way of a dividend or distribution or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, exchange or other reorganization; provided that any such Shares shall cease to be Registrable Securities if (i) they have been registered and sold pursuant to an effective Registration Statement, (ii) they have been transferred by a Holder in a transaction in which the Holder’s rights under this Agreement are not, or cannot be, assigned, or (iii) they have ceased to be outstanding.

“Registration” means a registration with the SEC of the offer and sale to the public of Common Stock under a Registration Statement. The terms “Register,” “Registered” and “Registering” shall have a correlative meaning.

“Registration Expenses” shall mean any and all expenses incident to the Company’s performance of or compliance with this Agreement, including all (i) registration, qualification and filing fees; (ii) expenses incurred in connection with the preparation, printing and filing under the Securities Act of the Registration Statement, any Prospectus and any issuer free writing prospectus and the distribution thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants (including the expenses of any audit or review and/or “comfort” letter and updates thereto); (iv) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Shares under the state or foreign securities or blue sky laws and the preparation, printing and distribution of a blue sky or legal investment memorandum (including the related fees and expenses of counsel); (v) the costs and charges of any transfer agent, custodian or any registrar; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of an offering by, FINRA; (vii) expenses incurred in connection with any “road show” presentation to potential investors; (viii) printing expenses, messenger, telephone and delivery expenses; (ix) internal expenses of the Company (including all salaries and expenses of employees of the Company performing legal or accounting duties); (x) with respect to each Demand Registration or Underwritten Offering, the reasonable and documented fees and expenses of one counsel for the Initiating Holder and each other Eligible Holder participating in such offering or sale; provided, that the reimbursement of such fees and expenses shall not exceed $75,000 in the aggregate; (xi) any other fees and disbursements of underwriters, if customarily paid by issuers or sellers of securities, including reasonable and documented fees and expenses of counsel for the underwriters (including in connection with any filing with or review by FINRA); and (xii) fees and expenses of listing any Registrable Securities on any securities exchange on which shares of Common Stock are then listed; but excluding any Selling Expenses.

 

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“Registration Period” has the meaning set forth in Section 2.01(c).

“Registration Rights” shall mean the rights of the Holders to cause the Company to Register Registrable Securities pursuant to this Agreement.

“Registration Statement” means any registration statement of the Company filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

“Rothenberg Holder” means David Rothenberg and any Permitted Transferee.

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the U.S. Securities Act of 1933, as amended.

“Selling Expenses” means all underwriting discounts, selling commissions and transfer taxes applicable to the sale of Registrable Securities hereunder.

“Shareholder Rights Agreement” means that certain Shareholder Rights Agreement, dated as of the date hereof, by and among the Company, Broad Street Principal Investments, L.L.C., MBD 2013 Holdings, L.P., Bridge Street 2013 Holdings, L.P., and Pamplona Capital Partners III, L.P.

“Shares” means all shares of Common Stock that are beneficially owned by the Holders or, any of their Affiliates or any permitted transferee of rights under Section 3.03 from time to time, whether or not held immediately following the IPO.

“Shelf Registration” means a Registration Statement of the Company for an offering to be made on a delayed or continuous basis of Common Stock pursuant to Rule 415 under the Securities Act (or similar provisions then in effect).

“Sponsor Holders” means, collectively, Goldman and Pamplona.

“Subsidiary” means, when used with respect to any Person, (a) a corporation in which such Person or one or more Subsidiaries of such Person, directly or indirectly, owns capital stock having a majority of the total voting power in the election of directors of all outstanding shares of all classes and series of capital stock of such corporation entitled generally to vote in such election; and (b) any other Person (other than a corporation) in which such Person or one or more Subsidiaries of such Person, directly or indirectly, has (i) a majority ownership interest or (ii) the power to elect or direct the election of a majority of the members of the governing body of such first-named Person.

 

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“Sullivan Holder” means Brighton Family, LLC.

“Takedown Notice” has the meaning set forth in Section 2.01(f).

“Underwritten Offering” means a Registration in which securities of the Company are sold to an underwriter or underwriters on a firm commitment basis for reoffering to the public.

“Unit” has the meaning set forth in the Parent Company LLC Agreement.

“Unit Holder” has the meaning set forth in the Parent Company LLC Agreement.

“Valid Business Reason” has the meaning set forth in Section 2.01(h).

Section 1.02. General Interpretive Principles. Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Unless otherwise specified, the terms “hereof,” “herein,” “hereunder” and similar terms refer to this Agreement as a whole (including the exhibits hereto), and references herein to Articles and Sections refer to Articles and Sections of this Agreement. Except as otherwise indicated, all periods of time referred to herein shall include all Saturdays, Sundays and holidays; provided, however, that if the date to perform the act or give any notice with respect to this Agreement shall fall on a day other than a Business Day, such act or notice may be performed or given timely if performed or given on the next succeeding Business Day. References to a Person are also to its permitted successors and assigns. The parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Section 1.03. Distribution. As promptly as practicable after the date of consummation of the IPO, the Parent Company shall effect a distribution of all of the Shares held by it and the net cash proceeds received from the Parent Company’s sale of Shares in the IPO to the Unit Holders of the Parent Company (including the Holders) in respect of their Units in accordance with and pursuant to the provisions of Section 5.1 of the Parent Company LLC Agreement and the terms and conditions of the Principal Terms Letter (such distribution, the “Post-IPO Distribution”). For the avoidance of doubt, following the Post-IPO Distribution (x) the Holders will continue to own their Units in the Parent Company, and (y) the terms and conditions of this Agreement shall cease to apply to the Parent Company.

 

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ARTICLE 2

REGISTRATION RIGHTS

Section 2.01. Registration.

(a) Request. Each of Goldman and Pamplona and, subject to the limitations in Section 2.01(b), each of (x) the Privia Holders, and (y) the Sullivan Holder, and any permitted transferee of rights pursuant to Section 3.03, shall have the right to request that the Company file a Registration Statement with the SEC on the appropriate registration form (a “Demand Registration” ) for all or part of the Registrable Securities held by such Holder once such Holder is no longer subject to the underwriter lock-up applicable to it entered into in connection with the IPO (which may be due to the expiration or waiver of such underwriter lock-up with respect to such Registrable Securities) by delivering a written request to the Company specifying the kind and approximate number of shares of Registrable Securities such Holder wishes to Register and the intended method of distribution thereof (a “Demand Request” and the Holder submitting such Demand Request, the “Initiating Holder”). The Company shall (i) within 10 days of the receipt of such request, give written notice of such Demand Request (the “Company Notice”) to all Holders other than the relevant Initiating Holder (the “Eligible Holders”), (ii) as expeditiously as possible (but in any event within 45 days of receipt of the request) use its reasonable best efforts to file a Registration Statement in respect of such Demand Request (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), (iii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as reasonably practicable thereafter, and (iv) use its reasonable best efforts to obtain acceleration of the effective date of the Registration Statement relating to such Demand Request. Subject to Section 2.01(e), the Company shall include in such Registration, in addition to the Registrable Securities of the relevant Initiating Holder covered by the Demand Request, all Registrable Securities that the Eligible Holders request to be included within the 10 Business Days following their receipt of the Company Notice.

(b) Limitations of Demand Registrations. There shall be no limitation on the number of Demand Requests by either Goldman or Pamplona pursuant to Section 2.01(a). If, within twenty-four (24) months of the date of consummation of the IPO, neither Goldman nor Pamplona has requested that the Company effect a Demand Registration, then (i) the Privia Holders, collectively, may, in a writing signed by the Butler Member and either the NIGI Member or the HEP Member delivered to the Company, request that the Company effect one Demand Registration pursuant to this Section 2.01(b); provided further, that any Demand Registration requested by the Privia Holders pursuant to this Section 2.01(b) (including, for the avoidance of doubt, the Registrable Securities of Eligible Holders requested to be registered) must represent (A) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $25,000,000 in gross proceeds or (B) all of the remaining Registrable Securities owned by the relevant Initiating Holder and its Affiliates, and (ii) the Sullivan Holder may request that the Company effect one Demand Registration pursuant to this this Section 2.01(b); provided further, that any Demand Registration requested by the Sullivan Holder pursuant to this Section 2.01(b) (including, for the avoidance of doubt, the Registrable Securities of Eligible Holders requested to be registered) must represent (A) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $25,000,000 in gross proceeds or (B) all of the remaining Registrable Securities owned by the relevant Initiating Holder and its Affiliates. For purposes of this Section 2.01(b), the Privia Holders shall be deemed to be a single Initiating Holder.

(c) Effective Registration. The Company shall be deemed to have effected a Registration for purposes of Section 2.01(b) if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC, and remains effective until the earlier of (i) the date when all Registrable Securities thereunder have been sold and (ii) 180 days from the effective date of the Registration Statement (or, with respect to a shelf registration statement on Form S-3, until all Registrable Securities covered by such registration statement shall have been sold or have otherwise ceased to be Registrable Securities) (the “Registration Period”). No Registration shall be deemed to have been effective if (A) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such Registration are not satisfied by reason of any refusal, inability or failure on the part of the Company to satisfy any such condition or (B) the number of Registrable Securities included in any such Registration Statement is reduced in accordance with Section 2.01(e) such that less than 25% of the aggregate number of Registrable Securities requested to be Registered pursuant to Section 2.01(a) are included. If, during the Registration Period, such Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority, the Registration Period shall be extended on a day-for-day basis for any period the Holder is unable to complete an offering as a result of such stop order, injunction or other order or requirement of the SEC or other Governmental Authority.

 

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(d) Underwritten Offering. If the Initiating Holder so indicates at the time of its request pursuant to Section 2.01(a), such offering of Registrable Securities shall be in the form of an Underwritten Offering and the Company shall include such information in the Company Notice. In the event that the Initiating Holder intends to distribute the Registrable Securities by means of an Underwritten Offering, no Holder may include Registrable Securities in such Registration unless such Holder, subject to the limitations set forth in Section 2.06, (i) agrees to sell its Registrable Securities on the basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements and (iii) cooperates with the Company’s reasonable requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of this Agreement). In the event that the Initiating Holder intends to distribute the Registrable Securities by means of an Underwritten Offering, such Initiating Holder shall have the right to designate the lead managing underwriter and each other managing and non-managing underwriter for such Underwritten Offering; provided, that, in each case, such lead managing underwriter and each other managing and non-managing underwriter is reasonably satisfactory to the Company, which such approval shall not be unreasonably withheld, conditioned or delayed.

(e) Priority of Securities in an Underwritten Offering. If the managing underwriter or underwriters of a proposed Underwritten Offering of the Registrable Securities included in a Demand Registration, including an Underwritten Offering from a Shelf Registration, pursuant to this Section 2.01, advise the Board of Directors of the Company in writing that, in its or their opinion, the number of securities requested to be included in such Underwritten Offering exceeds the number that can be sold in such Underwritten Offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the number of securities to be included in such Underwritten Offering shall be reduced in the following order of priority: first, there shall be excluded from the Underwritten Offering any securities to be sold for the account of any selling securityholder other than the Initiating Holder and the Eligible Holders; second, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Company; third, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Initiating Holder, the Eligible Holders and their Affiliates that have been requested to be included therein, pro rata based on the number of Registrable Securities requested to be included in such Underwritten Offering by the Initiating Holder and each such Eligible Holder, in each case to the extent necessary to reduce the total number of securities to be included in such offering to the number determined by the Initiating Holder and the Eligible Holders after consultation with the managing underwriter or underwriters.

 

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(f) Shelf Registration. At any time after the date hereof when the Company is eligible to Register the applicable Registrable Securities on Form S-3 (or a successor form) and an Initiating Holder is entitled to request Demand Registrations, such Initiating Holder may request the Company to effect a Demand Registration as a Shelf Registration. For the avoidance of doubt, the requirement that (i) the Company deliver a Company Notice in connection with a Demand Registration and (ii) the right of Eligible Holders to request that their Registrable Securities be included in a Registration Statement filed in connection with a Demand Registration, each as set forth in Section 2.01(a), shall apply to a Demand Registration that is effected as a Shelf Registration. Subject to Section 2.01(b), there shall be no limitations on the number of Underwritten Offerings pursuant to a Shelf Registration by the Sponsor Holders. If any Initiating Holder holds Registrable Securities included on a Shelf Registration, it shall have the right to request that the Company cooperate in a shelf takedown at any time, including an Underwritten Offering, by delivering a written request thereof to the Company specifying the kind and approximate number of shares of Registrable Securities such Initiating Holder wishes to include in the shelf takedown (“Takedown Notice”). The Company shall (i) within five days of the receipt of a Takedown Notice, give written notice of such Takedown Notice to all Holders of Registrable Securities included on such Shelf Registration (the “Company Takedown Notice”), and (ii) shall take all actions reasonably requested by the Initiating Holder who submitted the Takedown Notice, including the filing of a Prospectus supplement and the other actions described in Section 2.04, in accordance with the intended method of distribution set forth in the Takedown Notice as expeditiously as practicable. If the takedown is an Underwritten Offering, the Company shall include in such Underwritten Offering all Registrable Securities that the Holders of Registrable Securities included in the Registration Statement for such Shelf Registration request be included within the five Business Days following such Holders’ receipt of the Company Takedown Notice. If the takedown is an Underwritten Offering initiated by either the Privia Holders or the Sullivan Holder pursuant to Section 2.01(b), then, in each such case, the Registrable Securities requested to be included in a shelf takedown must represent (i) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $25,000,000 in gross proceeds (including, for the avoidance of doubt, the Registrable Securities of all other Holders who request their Registrable Securities to be included) or (ii) all of the remaining Registrable Securities owned by the requesting Initiating Holder and its Affiliates. Notwithstanding the foregoing, if a Sponsor Holder wishes to engage in an underwritten block trade off of a Shelf Registration (either as a takedown under a newly filed automatic Shelf Registration or through a takedown from an already existing Shelf Registration), then, notwithstanding the foregoing time periods, the applicable Sponsor Holder only needs to notify the Company of the block trade at least five days prior to the day such offering is to commence (and such Sponsor Holder shall have provided the non-initiating Sponsor Holder with prior written notice of such block trade in accordance with the procedures adopted by the Coordination Committee (as defined in the Shareholder Rights Agreement)) and the Company shall notify the other Holders and the other Holders must elect whether or not to participate no later than two days prior to the date that such offering is to commence, and the Company shall (x) include in such offering all Registrable Securities of the Initiating Holder and the other Holders that elect to include their Registrable Securities in such offering (subject to the requirement that the Registrable Securities held by all such Holders electing to participate in such offering to be included must represent (A) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $25,000,000 or (B) all of the remaining Registrable Securities owned by the Initiating Holder and all such Holders, as applicable), and (y) as expeditiously as possible use its reasonable best efforts to consummate such underwritten block trade (which may close as early as two (2) trading days after the trade date for such block trade). The Company shall, at the request of any Initiating Holder, file any prospectus supplement or, if the applicable Shelf Registration is an automatic shelf registration statement, any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the applicable Initiating Holder(s) to effect such takedown offering. Once a Shelf Registration has been declared effective, the Sponsor Holders may request, and the Company shall be required to consummate, an unlimited number of takedown offerings and underwritten block trades with respect to such Shelf Registration, subject to the right of the Privia Holders to elect to participate in any such takedown offering or underwritten block trade on the terms and conditions contemplated by this Section 2.01(f) (including, to the extent elected by the Privia Holders, on a pro rata basis in respect of the portion of Registrable Securities then held by the relevant initiating Holder, on the one hand, and the Privia Holders, on the other hand. For the avoidance of doubt, in the event that any Sponsor Holder initiates a block trade that is to be effected as a Rule 4(a)(1)(1/2) private placement, the provisions of this Section 2.01(f) shall apply to such offering mutatis mutandis.

 

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(g) SEC Form. Except as set forth in the next sentence, the Company shall use its reasonable best efforts to cause Demand Registrations to be Registered on Form S-3 (or any successor form), and if the Company is not then eligible under the Securities Act to use Form S-3, Demand Registrations shall be Registered on Form S-1 (or any successor form). The Company shall use its reasonable best efforts to become eligible to use Form S-3 as expeditiously as possible and, after becoming eligible to use Form S-3, shall use its reasonable best efforts to remain so eligible. All Demand Registrations shall comply with applicable requirements of the Securities Act and, together with each Prospectus included, filed or otherwise furnished by the Company in connection therewith, shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

(h) Postponement. Upon notice to, in the case of a Demand Registration, the Initiating Holder for such Demand Registration and any other Eligible Holders or, in the case of a shelf takedown, the Initiating Holder or Holders requesting such shelf takedown and any other Holders to which a Company Takedown Notice has been delivered with respect to such shelf takedown, the Company may postpone effecting a Registration or shelf takedown, as applicable, pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (provided that (1) such period may not be extended or renewed, and (2) the Company may not so postpone effecting a Registration or shelf takedown, as applicable, for two consecutive (i.e., on a “back-to-back” basis) 90-day periods without the prior written consent of the applicable Initiating Holder (such consent not to be unreasonably withheld, conditioned or delayed)), if (i) the Board of Directors of the Company reasonably believes that effecting the Registration or shelf takedown, as applicable, would materially and adversely affect a proposal or plan by the Company to engage in (directly or indirectly through any of its Subsidiaries): (x) a material acquisition or divestiture of assets; (y) a merger, consolidation, tender offer, reorganization, primary offering of the Company’s securities or similar material transaction; or (z) a material financing or any other material business transaction with a third party or (ii) the Company is, based on the advice of counsel, in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company (the foregoing clauses (i) and (ii), a “Valid Business Reason”). Any notice to be delivered by the Company pursuant to this Section 2.01(h) shall be in the form of a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company stating that in their good faith judgment a Valid Business Reason exists. If the Company delivers a postponement notice pursuant to this Section 2.01(h), the Company shall not, during the applicable period of postponement, withdrawal or suspension, register any of its common equity securities, other than pursuant to a registration statement on Form S-4 or Form S-8 (or an equivalent registration form then in effect). If the Company shall give any notice of any withdrawal or postponement of a Registration Statement pursuant to this Section 2.01(h), the Company shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists, use its reasonable best efforts to effect the applicable Registration or shelf takedown covered by the withdrawn or postponed Registration Statement in accordance with this Section 2.01 (unless the relevant Initiating Holder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective Registration for purposes of this Section 2.01).

 

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(i) Right to Withdraw. Unless otherwise agreed, as to any Underwritten Offering in which a Holder shall have requested its Registrable Securities to be included, such Holder shall have the right to prior notice of the proposed pricing for the Shares to be sold in such Underwritten Offering and to withdraw its request for inclusion of its Registrable Securities in any Underwritten Offering pursuant to this Section 2.01 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of such Holder’s request to withdrawn and, subject to the preceding clause, each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Demand Registration at any time prior to the effective date thereof.

Section 2.02. Piggyback Registrations.

(a) Participation. If the Company proposes to file a Registration Statement under the Securities Act with respect to any offering of Common Stock for its own account and/or for the account of any other Persons (other than a Registration (i) under Section 2.01 hereof, (ii) pursuant to a Registration Statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit arrangement) or Form S-4 or similar form that relates to a transaction subject to Rule 145 under the Securities Act, (iii) in connection with any dividend reinvestment or similar plan or (iv) for the sole purpose of offering securities to another entity or its security holders in connection with the acquisition of assets or securities of such entity or any similar transaction), then, as soon as practicable (but in no event less than 10 Business Days prior to the proposed date of filing such Registration Statement), the Company shall give written notice of such proposed filing to each Holder, and such notice shall offer such Holders the opportunity to Register under such Registration Statement such number of Registrable Securities as each such Holder may request in writing (a “Piggyback Registration”). Subject to this Section 2.02(a) and Section 2.02(c), the Company shall include in such Registration Statement all such Registrable Securities that are requested to be included therein within 7 Business Days after the receipt of any such notice; provided, however, that if, at any time after giving written notice of its intention to Register any securities pursuant to this Section 2.02(a) 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 securities, the Company may, at its election, give written notice of such determination to each such Holder and, thereupon, (A) in the case of a determination not to Register, shall be relieved of its obligation to Register any Registrable Securities in connection with such Registration and shall have no liability to any Holder in connection with such termination, and (B) in the case of a determination to delay Registration, shall be permitted to delay Registering any Registrable Securities for the same period as the delay in Registering such other shares of Common Stock, in each case without prejudice, however, to the rights of any Holder to request that such Registration be effected as a Demand Registration under Section 2.01. For the avoidance of doubt, no Registration effected under this Section 2.02 shall relieve the Company of its obligation to effect any Demand Registration under Section 2.01. If any offering pursuant to a Registration Statement pursuant to this Section 2.02 is to be an Underwritten Offering, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.02(a) shall, and the Company shall use reasonable best efforts to coordinate arrangements with the underwriters so that each such Holder may, participate in such Underwritten Offering. If any offering pursuant to such Registration Statement is to be on any other basis, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.02(a) shall, and the Company shall use reasonable best efforts to coordinate arrangements so that each such Holder may, participate in such offering on such basis. If the Company files a Shelf Registration for its own account and/or for the account of any other Persons, the Company agrees that it shall use its reasonable best efforts to include in such Registration Statement such disclosures as may be required by Rule 430B under the Securities Act in order to ensure that the Holders may be added to such Shelf Registration at a later time through the filing of a Prospectus supplement rather than a post-effective amendment.

 

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(b) Right to Withdraw. Unless otherwise agreed, each Holder shall have the right to withdraw such Holder’s request for inclusion of its Registrable Securities in any Underwritten Offering pursuant to this Section 2.02 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of such Holder’s request to withdraw and, subject to the preceding clause, each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration at any time prior to the effective date thereof.

(c) Priority of Piggyback Registration. If the managing underwriter or underwriters of any proposed Underwritten Offering of a class of Registrable Securities included in a Piggyback Registration informs the Company and the Holders in writing that, in its or their opinion, the number of securities of such class which such Holder and any other Persons intend to include in such Underwritten Offering exceeds the number which can be sold in such Underwritten Offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Underwritten Offering shall be reduced in the following order of priority: first, there shall be excluded from the Underwritten Offering any securities to be sold for the account of any selling securityholder other than the Holders; and second, there shall be excluded from the Underwritten Offering any securities to be sold for the account of the Holders and their Affiliates that have been requested to be included therein, pro rata based on the number of Registrable Securities requested to be included in such Underwritten Offering by each such Holder, in each case to the extent necessary to reduce the total number of securities to be included in such offering to the number recommended by the managing underwriter or underwriters.

Section 2.03. Selection of Underwriter(s) etc. In any Underwritten Offering pursuant to Section 2.02, the Company shall select the underwriter(s), financial printer and/or solicitation and/or exchange agent (if any). The Company may consult with the applicable Sponsor Holder(s) participating in such Underwritten Offering in its selection, provided that the Company shall be under no obligation to such Holder(s) as a result of or in connection with such consultation.

Section 2.04. Registration Procedures.

(a) In connection with the Registration and/or sale of Registrable Securities pursuant to this Agreement, through an Underwritten Offering or otherwise, the Company shall use reasonable best efforts to effect or cause the Registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof and:

 

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(i) prepare and file the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish (without charge) to the underwriters, if any, and to the Holders participating in such Registration, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such participating Holders and their respective counsel, and (B) consider in good faith any comments of the underwriters and Holders and their respective counsel on such documents;

(ii) prepare and file with the SEC such pre- and post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares Registered thereon, in each case, in accordance with the intended method(s) of disposition by the participating Holders set forth in such Registration Statement;

(iii) in the case of a Shelf Registration, prepare and file with the SEC such pre- and post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the 3^rd anniversary after the effective date of such Registration Statement;

(iv) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

(v) promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;

 

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(vi) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;

(vii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders may reasonably request to be included therein in order to permit the intended method of distribution of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;

(viii) furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);

(ix) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;

(x) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

(xi) in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;

 

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(xii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;

(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;

(xiv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion, including customary negative assurances, from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement;

(xv) in the case of an Underwritten Offering, obtain for delivery to and addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;

(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder and covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the Registration Statement;

(xvii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

 

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(xviii) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s Common Stock are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Common Stock are then quoted, including the filing of any required supplemental listing application;

(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be Registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder(s) and their counsel should be included; and for a reasonable period prior to the filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company’s officers, employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any such Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix) shall agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;

(xx) to cause the executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and

(xxi) take all other customary steps reasonably necessary to effect the Registration, offering and sale of the Registrable Securities.

(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing (which such information shall be used by the Company only in connection with the consummation of such Registration). Each such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.

 

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(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the occurrence of any event of the kind described in Section 2.04(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and if so directed by the Company, such Holder 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 current at the time of receipt of such notice. In the event the Company shall give any such notice, the period during which the applicable Registration Statement for a Demand Registration is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 2.04(a)(v) or is advised in writing by the Company that the use of the Prospectus may be resumed.

Section 2.05. Holdback Agreements. Upon notice from the managing underwriter or underwriters in connection with any Registration for an Underwritten Offering of the Company’s securities (other than pursuant to a registration statement on Form S-4 or any similar or successor form or pursuant to a registration solely relating to an offering and sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit plan arrangement), the Company and each Holder that requests to have its Registrable Securities included in such Registration agrees not to effect (other than pursuant to such Registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to Rule 144, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of, any Registrable Securities, any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company without the prior written consent of the managing underwriters during such period as reasonably requested by the managing underwriters (but in no event longer than the seven days before and the 90 days after the pricing of such Underwritten Offering); and subject to reasonable and customary exceptions to be agreed with such managing underwriter or underwriters. Notwithstanding the foregoing, no holdback agreements of the type contemplated by this Section 2.05 shall be required of Holders unless each of the Company’s directors and executive officers agrees to be bound by a substantially identical holdback agreement for at least the same period of time.

Section 2.06. Underwriting Agreement in Underwritten Offerings. If requested by the managing underwriters for any Underwritten Offering, the Company and the participating Holders shall enter into an underwriting agreement in customary form with such underwriters for such offering; provided, however, that no Holder shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding (i) such Holder’s ownership of Registrable Securities to be transferred free and clear of all liens, claims and encumbrances created by such Holder, (ii) such Holder’s power and authority to effect such transfer, (iii) such matters pertaining to such Holder’s compliance with securities laws as reasonably may be requested and may be agreed and (iv) such Holder’s intended method of distribution) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 2.08 hereof.

 

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Section 2.07. Registration Expenses Paid By Company. In the case of any Registration of Registrable Securities required pursuant to this Agreement (including any Registration that is delayed or withdrawn) or proposed Underwritten Offering pursuant to this Agreement, the Company shall pay all Registration Expenses regardless of whether the Registration Statement becomes effective or the Underwritten Offering is completed. The Company shall have no obligation to pay any Selling Expenses for Registrable Securities offered by any Holders.

Section 2.08. Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Holder and such Holder’s officers, directors, employees, advisors, Affiliates and agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Holder from and against any and all losses, claims, damages, liabilities (or actions in respect thereof, whether or not such indemnified party is a party thereto) and expenses, joint or several (including reasonable costs of investigation and legal expenses) (each, a “Loss” and collectively “Losses”) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the Securities Act (including any final or preliminary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein), or any such statement made in any free writing prospectus (as defined in Rule 405 under the Securities Act) that the Company has filed or is required to file pursuant to Rule 433(d) of the Securities Act, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or free writing prospectus, in light of the circumstances under which they were made) not misleading; provided, however, that the Company shall not be liable to any particular indemnified party in any such case to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any such Registration Statement in reliance upon and in conformity with written information furnished to the Company by such indemnified party expressly for use in the preparation thereof. This indemnity shall be in addition to any liability the Company may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the transfer of such securities by such Holder.

(b) Indemnification by the Selling Holder. Each selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the full extent permitted by law, the Company and the Company’s directors, officers, employees, advisors, Affiliates and agents and each Person who controls the Company (within the meaning of the Securities Act and the Exchange Act) from and against any Losses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the Securities Act (including any final or preliminary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein), or any such statement made in any free writing prospectus that the Company has filed or is required to file pursuant to Rule 433(d) of the Securities Act, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or free writing prospectus, in light of the circumstances under which they were made) not misleading but only to the extent, in each of cases (i) or (ii), that such untrue statement or omission is contained in any information furnished in writing by such selling Holder to the Company expressly for inclusion in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder from the sale of the Registrable Securities giving rise to such indemnification obligation. This indemnity shall be in addition to any liability the selling Holder may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any indemnified party.

 

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(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any delay or failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations hereunder to the extent that it is materially prejudiced by reason of such delay or failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the Person entitled to indemnification hereunder, (c) the named parties to any proceeding include both such indemnified and the indemnifying party and the indemnified party has reasonably concluded (based on written advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, or (d) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent, but such consent may not be unreasonably withheld, conditioned or delayed. If the indemnifying party assumes the defense, the indemnifying party shall not have the right to settle such action without the consent of the indemnified party, which consent may not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to entry of any judgment or enter into any settlement without the consent of the indemnified party which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm (in addition to any appropriate local counsel) at any one time from all such indemnified party or parties unless (x) the employment of more than one counsel has been authorized in writing by the indemnifying party or parties, (y) an indemnified party has reasonably concluded (based on written advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other indemnified parties or (z) a conflict or potential conflict exists or in the reasonable judgment of such indemnified party may exist (based on advice of counsel to an indemnified party) between such indemnified party or parties and the other indemnified parties, in each of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel.

 

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(d) Contribution. If for any reason the indemnification provided for in Section 2.08(a) or Section 2.08(b) is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 2.08(a) or Section 2.08(b), then the indemnifying party shall, to the fullest extent permitted by law, in lieu of indemnifying such indemnified party thereunder, contribute to the amount paid or payable by the indemnified party as a result of such Loss 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 in connection with the statements or omissions which resulted in such Loss as well as any other relevant equitable considerations. 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. Notwithstanding anything in this Section 2.08(d) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 2.08(d) to contribute any amount in excess of the amount by which the net proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the Losses of the indemnified parties relate exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such untrue statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.08(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.08(d). 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. The amount paid or payable by an indemnified party hereunder shall be deemed to include, for purposes of this Section 2.08(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. If indemnification is available under this Section 2.08, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.08(a) and Section 2.08(b) hereof without regard to the relative fault of said indemnifying parties or indemnified party.

Section 2.09. Reporting Requirements; Rule 144. Following the IPO, the Company shall use its reasonable best efforts to be and remain in compliance with the periodic filing requirements imposed under the SEC’s rules and regulations, including the Exchange Act, and thereafter shall timely file such information, documents and reports as the SEC may require or prescribe under Section 13 or 15(d) (whichever is applicable) of the Exchange Act. If the Company is not required to file such reports during such period, it will, upon the request of any Holder, make publicly available such necessary information for so long as necessary to permit sales pursuant to Rule 144 or Regulation S under the Securities Act, and it will take such further action as any Holder 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 or Regulation S under the Securities Act, as such Rules may be amended from time to time, or (b) any rule or regulation hereafter adopted by the SEC. From and after the date hereof through the date upon which no Holder owns any Registrable Securities, the Company shall forthwith upon request furnish any Holder (i) a written statement by the Company as to whether it has complied with such requirements and, if not, the specifics thereof, (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents filed by the Company with the SEC as such Holder may reasonably request in availing itself of an exemption for the sale of Registrable Securities without registration under the Securities Act.

 

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Section 2.10. Limitations on Subsequent Registration Rights. The Company agrees that it shall not enter into any agreement with any holder or prospective holder of any securities of the Company (i) that would allow such holder or prospective holder to include such securities in any Demand Registration or Piggyback Registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that their inclusion would not reduce the amount of the Registrable Securities of the Holders included therein or (ii) on terms otherwise more favorable to such holder or prospective holder of any securities of the Company than the terms applicable to the Holders set forth in this Agreement.

ARTICLE 3

MISCELLANEOUS

Section 3.01. Term. This Agreement shall terminate at such time as there are no Registrable Securities, except for the provisions of Section 2.07 and Section 2.08 and all of this Article 3, which shall survive any such termination.

Section 3.02. Notices. All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when (a) delivered in person, (b) when sent by email upon confirmation of receipt or (c) deposited in the United States mail or private express mail, postage prepaid, addressed as follows:

If to Goldman, to its address as set forth below:

c/o Goldman, Sachs & Co. LLC

200 West Street

New York, New York 10282-2198

Attention: Jeffrey Bernstein

Email: jeff.bernstein@gs.com

and

c/o Goldman, Sachs & Co. LLC

200 West Street

New York, New York 10282-2198

Attention: Benjamin Haskins, Esq.

Email: Ben.Haskins@gs.com

with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attention: Robert Schwenkel, Esq.; Matthew Soran, Esq.

Email: Robert.Schwenkel@friedfrank.com; Matthew.Soran@friedfrank.com;

If to Pamplona, to its address as set forth below:

c/o Pamplona Capital Management LLP

667 Madison Avenue, 22nd Floor

New York, NY 10065

Attention: Will Sherrill; William Pruellage

Email: WSherrill@pamplonafunds.com; WPruellage@pamplonafunds.com

 

20

with a copy (which shall not constitute written notice) to:

Lowenstein Sandler LLP

1251 Avenue of the Americas, 18^th Floor

New York, NY 10020

Attention: Michael Brosse

Email: mbrosse@lowenstein.com

If to the Privia Holders, to the addresses set forth below:

Jeffrey B. Butler

********

 

Email: jeff@elusiveventures.com

National Investment Group, Inc.

********

********

Attention: Neil Leftwich, Robert Haft

Email: nleftwich.nig@cox.net robert@haft.org

HEP Privia Investors, LLC

c/o Health Enterprise Partners, LP

565 Fifth Avenue, 26^th Floor

NY, NY 10017

Attention: David Tamburri

Email: dtamburri@hepfund.com

David Rothenberg

********

 

Email: rothenberg@post.harvard.edu

with a copy (which shall not constitute written notice) to:

DLA Piper LLP (US)

251 Avenue of the Americas, 27^th Floor

New York, NY 10020

Attention: Christopher Paci

Email: christopher.paci@us.dlapiper.com

If to the Sullivan Holder, to the address set forth below:

Brighton Family, LLC:

********

 

Attention: William M. Sullivan, Manager

bsullivan@brightonhealth.com

 

21

with a copy (which shall not constitute written notice) to:

Diserio Martin O’Connor & Castiglioni LLP

1010 Washington Boulevard, Ste. 800

Stamford, CT 06901

Attention: William Durkin

wdurkin@dmoc.com

If to the Company to:

Privia Health Group, Inc.

950 N. Glebe Rd., Suite 700

Arlington, VA 22203

Attention: Thomas Bartrum, General Counsel

with a copy to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

Attention: Richard Truesdell

Fax: (212) 701-5674

Email: Richard.Truesdell@davispolk.com

If to any other Holder: as set forth on such Holder’s signature page hereto.

Any party may, by notice to the other party, change the address to which such notices are to be given.

Section 3.03. Successors, Assigns and Transferees. This Agreement and all provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Company may assign this Agreement at any time in connection with a sale or acquisition of the Company, whether by merger, consolidation, sale of all or substantially all of the Company’s assets, or similar transaction, without the consent of the Holders; provided that the successor or acquiring Person agrees in writing to become party to this Agreement and to assume all of the Company’s rights and obligations under this Agreement. Each Holder shall have the right to assign all or part of its rights and obligations under this Agreement to any Affiliate or Permitted Transferee of such Holder or, otherwise, only in accordance with transfers of more than half of the Registrable Securities held (directly or indirectly) by such Holder as of the date hereof, in each case, subject to such assignee agreeing in writing to become party to this Agreement and to be bound by all of such Holder’s rights and obligations under this Agreement with respect to the Registrable Securities so assigned or transferred. Upon any such assignment, such assignee shall have and be able to exercise and enforce the all rights of the assigning Holder with respect to the Registrable Securities assigned to it and, to the extent such rights are assigned, any reference to the assigning Holder shall be treated as a reference to the applicable assignee, to the extent of the Registrable Securities so assigned. Any assignee permitted under this Section 3.03 shall execute and deliver to the other parties hereto a copy of the instrument of adherence attached hereto as Exhibit A.

 

22

Section 3.04. GOVERNING LAW; NO JURY TRIAL.

(a) This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof that would result in the application of any law other than the laws of the State of New York. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE.

(b) With respect to any Action relating to or arising out of this Agreement, each party to this Agreement irrevocably (i) consents and submits to the exclusive jurisdiction of the courts of the State of New York and any court of the United States located in the Borough of Manhattan in New York City; (ii) waives any objection which such party may have at any time to the laying of venue of any Action brought in any such court, waives any claim that such Action has been brought in an inconvenient forum and further waives the right to object, with respect to such Action, that such court does not have jurisdiction over such party; and (iii) consents to the service of process at the address set forth for notices in Section 3.02 herein; provided, however, that such manner of service of process shall not preclude the service of process in any other manner permitted under applicable law.

Section 3.05. Specific Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the party or parties who are or are to be thereby aggrieved shall have the right to seek specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.

Section 3.06. Headings. The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 3.07. Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the parties.

Section 3.08. Amendment; Waiver.

(a) This Agreement may not be amended or modified and waivers and consents to departures from the provisions hereof may not be given, except by an instrument or instruments in writing making specific reference to this Agreement and signed by the Company and Holders of a majority of the Registrable Securities as of such time (which must include each Sponsor Holder for so long as it holds, directly or indirectly, Registrable Securities); provided, however, that any amendment, modification or waiver that results in a material adverse effect on the rights of a Holder under this Agreement will require the written consent of such Holder.

 

23

(b) Waiver by any party of any default by the other party of any provision of this Agreement shall not be deemed a waiver by the waiving party of any subsequent or other default, nor shall it prejudice the rights of the other party.

Section 3.09. Further Assurances. Each of the parties hereto shall execute and deliver all additional documents, agreements and instruments and shall do any and all acts and things reasonably requested by the other party hereto in connection with the performance of its obligations undertaken in this Agreement.

Section 3.10. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, executed by an original signature.

[The remainder of page intentionally left blank. Signature page follows.]

 

 

24

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

 

[Signature Page to Registration Rights Agreement]

EXHIBIT A

THIS INSTRUMENT forms part of the Registration Rights Agreement (the “Agreement”), dated as of April May 2, 2021, by and among Privia Health Group, Inc., a Delaware corporation, and the other parties thereto. The undersigned hereby acknowledges having received a copy of the Agreement and having read the Agreement in its entirety, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, hereby agrees that the terms and conditions of the Agreement binding upon and inuring to the benefit of such parties shall be binding upon and inure to the benefit of the undersigned and its successors and permitted assigns as if it were an original party to the Agreement.    Capitalized terms used in this instrument but not otherwise defined shall have the meaning set forth in the Agreement.

IN WITNESS WHEREOF, the undersigned has executed this instrument on this day of ___________, 20__.

 

[Signature Page to Registration Rights Agreement]

SCHEDULE I

 

1.

Broad Street Principal Investments, L.L.C.

 

2.

MBD 2013 Holdings, L.P.

 

3.

Bridge Street 2013 Holdings, L.P.

 

4.

Pamplona Capital Partners III, L.P.

 

5.

Jeffrey B. Butler

 

6.

National Investment Group, Inc.

 

7.

HEP Privia Investors, LLC

 

8.

Brighton Family, LLC

 

9.

David Rothenberg

 

10.

CHP III, L.P.

 

11.

South Bedford Company LLC

 

12.

Shawn Morris

 

13.

Parth Mehrotra

[Signature Page to Registration Rights Agreement]

Exhibit 10.2

PRIVIA HEALTH GROUP, INC.

SHAREHOLDER RIGHTS AGREEMENT

Dated as of May 2, 2021

 

TABLE OF CONTENTS

 

					Page
Article I DEFINITIONS					1
Section 1.1		Definitions			1
Section 1.2		General Interpretive Principles			6
Article II REPRESENTATIONS AND WARRANTIES					6
Section 2.1		Representations and Warranties of the Investors			6
Section 2.2		Representations and Warranties of the Company			7
Article III MANAGEMENT					7
Section 3.1		Board of Directors			7
Section 3.2		Investor Director Designees			8
Section 3.3		Non-Designee Directors			9
Section 3.4		Board Committees			9
Article IV REGISTRATION RIGHTS; COORDINATION COMMITTEE					10
Section 4.1		Registration Rights			10
Section 4.2		Coordination Committee			10
Article V ADDITIONAL AGREEMENTS OF THE PARTIES					11
Section 5.1		Certain Investor Approval Rights			11
Section 5.2		No Promotion			12
Section 5.3		Exculpation Among Investors			12
Section 5.4		No Fiduciary Duty; Investment Banking Services			12
Section 5.5		Logo of the Company and its Subsidiaries			13
Section 5.6		In-Kind Distributions			13
Article VI ADDITIONAL PARTIES					13
Section 6.1		Additional Parties			13
Article VII MISCELLANEOUS					13
Section 7.1		Freedom to Pursue Opportunities			13
Section 7.2		Effective Time			14
Section 7.3		Entire Agreement			14
Section 7.4		Governing Law; Submission to Jurisdiction; Waiver of Jury Trial			14
Section 7.5		Obligations; Remedies			15
Section 7.6		Consent of the Investors			16
Section 7.7		Amendment and Waiver			16
Section 7.8		Binding Effect			16
Section 7.9		Termination			16
Section 7.10		Non-Recourse			17
Section 7.11		Notices			17
Section 7.12		Severability			18
Section 7.13		No Third-Party Beneficiaries			18
Section 7.14		Recapitalizations; Exchanges, Etc.			19
Section 7.15		Counterparts			19

 

i

Exhibit A - Form of Registration Rights Agreement

Exhibit B - Form of Director Indemnification Agreement

Annex I - Form of Audit Committee Charter

Annex II - Form of Compensation Committee Charter

Annex III - Form of Nominating and Corporate Governance Committee Charter

Annex IV - Form of Compliance Committee Charter

 

 

ii

SHAREHOLDER RIGHTS AGREEMENT

This SHAREHOLDER RIGHTS AGREEMENT is made as of May 2, 2021, by and among Privia Health Group, Inc., a Delaware corporation (together with its successors and assigns, the “Company”), Broad Street Principal Investments, L.L.C., a Delaware limited liability company (“BSPI”), MBD 2013 Holdings, L.P., a Cayman Islands exempted limited partnership (“MBD”), and Bridge Street 2013 Holdings, L.P., a Cayman Islands exempted limited partnership (“Bridge Street” and, together with BSPI, MBD and their respective Permitted Transferees (as defined herein), each a “GS Investor” and, collectively, the “GS Investors”), and Pamplona Capital Partners III, L.P., a Cayman Islands exempted limited partnership (together with its Permitted Transferees hereunder, the “Pamplona Investor” and, together with the GS Investors, each an “Investor” and, collectively, the “Investors”).

WHEREAS, in connection with an initial public offering (the “IPO”) of shares of common stock, par value $0.01 per share, of the Company (the “Shares”), the parties hereto desire to enter into this Agreement to govern certain of their rights, duties and obligations with respect to the Investors’ ownership of Shares after consummation of the IPO.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties mutually agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, controls, is controlled by or is under common control with such Person. The term “control” (including the terms “controlled by” and “under common control with”) as used with respect to any Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise to control such Person within the meaning of such term as used in Rule 405 under the Securities Act. “Controlled” and “controlling” have meanings correlative to the foregoing. Notwithstanding the foregoing, for purposes hereof, (a) none of the Investors, the Company nor any of their respective Subsidiaries shall be considered Affiliates of any portfolio operating company in which the Investors or any of their investment fund Affiliates have made a debt or equity investment solely as a result of such investment and (b) no Person registered as an investment company under the Investment Company Act of 1940 to whom an Affiliate of any Investor serves as investment adviser shall be considered an Affiliate of such Investor solely as a result of such Affiliate serving as such company’s investment adviser.

“Affiliated” shall have a correlative meaning to the term “Affiliate”.

“Agreement” means this Shareholder Rights Agreement.

 

1

“Approved Budget” means, with respect to any given year, the annual budget for the Company Group for such year after giving effect to the Investor approval rights set forth in Section 5.1.

“Beneficial Ownership”, “Beneficial Owner”, “beneficially own” and similar terms have the meanings set forth in Rule 13d-3 under the Exchange Act; provided, however, that no Investor shall be deemed to beneficially own any securities of the Company held by any other Investor solely by virtue of the provisions of this Agreement (other than this definition).

“BHG Holdings” means Brighton Health Group Holdings, LLC, a Delaware limited liability company.

“Board” means the Board of Directors of the Company.

“Bridge Street” has the meaning set forth in the Preamble.

“BSPI” has the meaning set forth in the Preamble.

“Business Day” means any day, other than a Saturday, Sunday or one on which banks are authorized by law to be closed in New York, New York.

“Bylaws” means the Bylaws of the Company as in effect on any date of determination.

“Change in Control” means the occurrence of any of the following events:

(a) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any “person” or “group” (as such terms are defined in Section 13(d)(3) of the Exchange Act), other than to any of the Investors or any of their respective Affiliates (collectively, the “Permitted Holders”);

(b) any person or group, other than the Permitted Holders, is or becomes the Beneficial Owner, directly or indirectly, of more than fifty percent (50%) of the total voting power of the voting stock of the Company (or any entity which controls the Company, or which is a successor to all or substantially all of the assets of the Company), including by way of merger, recapitalization, reorganization, redemption, issuance of capital stock, consolidation, tender or exchange offer or otherwise; or

(c) a merger of the Company with or into another Person (other than the Permitted Holders) in which the voting stockholders of the Company immediately prior to such merger cease to hold at least fifty percent (50%) of the voting securities of the surviving entity or ultimate parent entity (in each case, including the Company) immediately following such merger; provided that, in each case under clause (a), (b) or (c), no Change in Control shall occur unless the Permitted Holders in such transaction cease to have the ability, without the approval of any Person who is not a Permitted Holder, to elect more directors of the Company (or any resulting entity) than any other stockholder or group of Affiliated stockholders of the Company.

 

2

“Charter” means the Certificate of Incorporation of the Company as in effect on any date of determination.

“Chosen Courts” has the meaning set forth in Section 7.4(b).

“Company” has the meaning set forth in the Preamble.

“Company Group” means the Company, each Subsidiary of the Company and each other Person that is controlled directly or indirectly by the Company.

“Coordination Committee” has the meaning set forth in Section 4.2(a).

“Distribution Event” means a distribution of Shares by BHG Holdings to its equityholders following the consummation of the IPO.

“Encumbrance” means any charge, claim, community or other marital property interest, right of first option, right of first refusal, mortgage, pledge, lien or other encumbrance.

“Equity Securities” means (a) any capital stock (including the Shares), partnership interests, limited liability company interests, units or any other type of equity interest, or other indicia of equity ownership (including profits interests) (collectively, “Interests”), (b) any security convertible into or exercisable or exchangeable for, with or without consideration, any Interests (including any option to purchase such convertible security), (c) any security carrying any warrant or right to subscribe to or purchase any security described in clause (a) or clause (b), or (d) any such warrant or right described in clause (c).

“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

“First Threshold Date” has the meaning set forth in Section 3.2(a).

“Governmental Authority” means any United States or foreign government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the SEC, or any other authority, agency, department, board, commission or instrumentality of the United States, any State of the United States or any political subdivision thereof or any foreign jurisdiction, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any United States or foreign governmental or non-governmental self-regulatory organization, agency or authority.

“GS Investors” has the meaning set forth in the Preamble.

“GS Representative” means, initially, BSPI; provided, that upon delivery of written notice to the Company signed by each GS Investor hereunder, the GS Investors may select an alternative GS Investor that is a signatory to this Agreement as the “GS Representative” for purposes of Section 5.1 hereof.

 

3

“Indebtedness” means, with respect to any Person, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than trade payables and other similar obligations incurred in the ordinary course of business), (b) all obligations of such Person which are evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of such Person that have been, or should be, in accordance with GAAP, recorded as capital leases, (d) all obligations of such Person that have been, or should be, in accordance with GAAP, recorded as a sale-leaseback transaction or leveraged lease, (e) all obligations of such Person in respect of letters of credit or similar instruments (other than such obligations incurred in the ordinary course of business), and (f) all direct or indirect guarantees (including “keep well” arrangements, support agreements and similar agreements) with respect to the Indebtedness of any other Person referred to in clauses (a) through (e) above.

“Independent” means “independent” as set forth in NASDAQ Rule 5605(a)(2), otherwise in the NASDAQ Rules or in any applicable rules of an exchange on which the securities of the Company are listed and, with respect to the audit committee of the Board, also “independent” as set forth in Rule 10A-3 under the Exchange Act.

“Interests” has the meaning set forth in the definition of “Equity Securities”.

“Investor” has the meaning set forth in the Preamble.

“Investor Director Designee” has the meaning set forth in Section 3.2(a).

“Investor Group” means the GS Investors or the Pamplona Investor, as applicable, together with their respective Permitted Transferees hereunder.

“IPO” has the meaning set forth in the Recitals.

“Law” with respect to any Person, means (a) all provisions of all laws, statutes, ordinances, rules, regulations, permits, certificates or orders of any Governmental Authority applicable to such Person or any of its assets or property or to which such Person or any of its assets or property is subject, including Banking Regulations, and (b) all judgments, injunctions, orders and decrees of any Governmental Authority in proceedings or actions in which such Person is a party or by which it or any of its assets or properties is or may be bound or subject.

“MBD” has the meaning set forth in the Preamble.

“NASDAQ” means the Nasdaq Global Select Market.

“NASDAQ Rules” means the rules and regulations of the Nasdaq Global Select Market.

“Non-Designee Director” has the meaning set forth in Section 3.3.

“Notifying Investor Group” has the meaning set forth in Section 4.3.

“Pamplona Investor” has the meaning set forth in the Preamble.

“Pamplona Representative” means, initially, Pamplona Capital Partners III, L.P.; provided, that upon delivery of written notice to the Company signed by each Pamplona Investor hereunder, the Pamplona Investors may select an alternative Pamplona Investor that is a signatory to this Agreement as the “Pamplona Representative” for purposes of Section 5.1 hereof.

 

4

“Permitted Holders” has the meaning set forth in the definition of “Change in Control”.

“Permitted Transferee” means, with respect to any Investor, any Affiliate of such Investor.

“Person” means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, limited liability company, Governmental Authority or any other entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity or organization.

“Registration Rights Agreement” has the meaning set forth in Section 4.1.

“Rule 144” means Rule 144 under the Securities Act.

“SEC” means the United States Securities and Exchange Commission.

“Second Threshold Date” has the meaning set forth in Section 3.2(b).

“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder.

“Shares” has the meaning set forth in the Recitals.

“Subsidiary” means, with respect to any Person, any corporation, partnership, trust, limited liability company or other non-corporate business enterprise in which such Person (or another Subsidiary of such Person) holds shares, stock or other ownership interests representing (a) more than fifty percent (50%) of the voting power of all outstanding shares, stock or ownership interests of such entity, (b) the right to receive more than fifty percent (50%) of the net assets of such entity available for distribution to the holders of outstanding shares, stock or ownership interests upon a liquidation or dissolution of such entity, or (c) a general or managing partnership interest in such entity.

“Third Threshold Date” has the meaning set forth in Section 3.2(c).

“Transfer” means, with respect to any Shares, a direct or indirect transfer (including through one or more transfers), sale, exchange, assignment, pledge, hypothecation or other Encumbrance or other disposition of such Shares, including the grant of an option or other right, whether directly or indirectly, whether voluntarily, involuntarily or by operation of law; provided, that a Transfer shall not include (a) a Distribution Event, or (b) any a direct or indirect transfer (including through one or more transfers), sale, exchange, assignment, pledge, hypothecation or other Encumbrance or other disposition of Shares as a result of a direct or indirect transfer (including through one or more transfers), sale, exchange, assignment, pledge, hypothecation or other Encumbrance or other disposition of an interest in The Goldman Sachs Group, Inc. or the Pamplona Investor, including the grant of an option or other right, whether directly or indirectly, whether voluntarily, involuntarily or by operation of law.

 

5

“Transferred,” “Transferring” and “Transferee” shall each have a correlative meaning to the term “Transfer.”

Section 1.2 General Interpretive Principles. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not be construed to affect the meaning, construction or effect hereof. References to this Agreement shall include all Exhibits, Schedules and Annexes to this Agreement. References to any statute, rule or regulation refer to such statute, rule or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under the statute) and references to any section of any statute or regulation include any successor to such section. References to any Governmental Authority include any successor to such Governmental Authority. Unless otherwise specified, the terms “hereof,” “herein” and similar terms refer to this Agreement as a whole. For purposes of this Agreement, the words, “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation.” The terms defined in the singular have a comparable meaning when used in the plural, and vice versa. The terms “dollars” and “$” shall mean United States dollars. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

Section 2.1 Representations and Warranties of the Investors. Each Investor, severally and not jointly, hereby represents and warrants to the Company and each other Investor that as of the date hereof:

(a) This Agreement has been duly authorized, executed, and delivered by such Investor and, assuming the due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes a valid and binding obligation of such Investor, enforceable against such Investor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar Laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).

(b) The execution, delivery, and performance by such Investor of this Agreement and the agreements contemplated hereby and the consummation by such Investor of the transactions contemplated hereby do not and will not, with or without the giving of notice or the passage of time or both: (i) violate the provisions of any Law applicable to such Investor, or (ii) result in any material breach of any terms or conditions of, or constitute a material default under, any contract, agreement or instrument to which such Investor is a party.

 

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Section 2.2 Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that as of the date hereof:

(a) This Agreement has been duly authorized, executed, and delivered by the Company and, assuming the due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar Laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).

(b) The execution, delivery, and performance by the Company of this Agreement and the agreements contemplated hereby and the consummation by the Company of the transactions contemplated hereby do not and will not, with or without the giving of notice or the passage of time or both: (i) violate the provisions of any Law applicable to the Company or its properties or assets, or (ii) result in any material breach of any terms or conditions of, or constitute a material default under, any contract, agreement or instrument to which the Company is a party or by which the Company or its properties or assets are bound.

ARTICLE III

MANAGEMENT

Section 3.1 Board of Directors.

(a) Upon the consummation of the IPO and subject to Section 3.2 and Section 3.3, the Board shall consist of the following eight (8) members: (i) Shawn Morris, the Chief Executive Officer of the Company, (ii) Jeffrey Bernstein, as the initial Investor Director Designee of the GS Investors, (iii) Will Sherrill, as the initial Investor Director Designee of the Pamplona Investor, and (iv) Jeffrey Butler, David King, Tom McCarthy, Patricia Maryland, and Bill Sullivan as the initial Non-Designee Directors.

(b) The Company and its Subsidiaries shall reimburse each Investor Director Designee for all reasonable out-of-pocket expenses incurred in connection with their attendance at meetings of the Board or the board of directors (or equivalent governing body) of any of the Company’s Subsidiaries, and any committees of the foregoing, including travel, lodging, and meal expenses, in accordance with the Company’s reimbursement policies in effect from time to time.

(c) The Company and its Subsidiaries shall obtain customary director and officer indemnity insurance on commercially reasonable terms which insurance shall cover each Investor Director Designee. The Company shall enter into a director indemnification agreement, substantially in the form attached as Exhibit B hereto, with each Investor Director Designee.

 

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Section 3.2 Investor Director Designees.

(a) During the period from and after the consummation of the IPO until the first date on which an Investor Group ceases to Beneficially Own a number of Shares in the aggregate equal to or in excess of fifteen percent (15%) of the then-outstanding Shares (such date with respect to the GS Investors or the Pamplona Investor, as the case may be, the “First Threshold Date”), such Investor Group shall have the right (but not the obligation) to designate three (3) individuals for election to the Board (any individual designated by an Investor Group, an “Investor Director Designee”); provided, that, for so long as the Board consists of less than nine (9) members and the Company is not deemed to be a “controlled company” for purposes of the NASDAQ Rules, in the event that an Investor Group has elected to designate three (3) Investor Director Designees pursuant to this Section 3.2(a), at least two (2) of such Investor Director Designees of such Investor Group shall meet (i) the applicable director independence requirements set forth in the NASDAQ Rules and the Exchange Act, and (ii) to the extent applicable to each such Investor Director Designee in light of such Investor Director Designee’s prospective Board committee assignment(s), the applicable Board committee composition requirements set forth in the NASDAQ Rules and the Exchange Act, in each case, subject to applicable “phase-in” and other exemptions set forth in the NASDAQ Rules and the Exchange Act which the Company may rely on.

(b) During the period from and after the First Threshold Date with respect to an Investor Group until the first date on which such Investor Group ceases to Beneficially Own a number of Shares in the aggregate equal to or in excess of ten percent (10%) of the then-outstanding Shares (such date with respect to the GS Investors or the Pamplona Investor, as the case may be, the “Second Threshold Date”), such Investor Group shall have the right (but not the obligation) to designate only two (2) Investor Director Designee; provided, that in the event that an Investor Group has elected to designate two (2) Investor Director Designees pursuant to this Section 3.2(b), at least one such Investor Director Designee of such Investor Group shall meet (i) the applicable director independence requirements set forth in the NASDAQ Rules and the Exchange Act, and (ii) to the extent applicable to such Investor Director Designee in light of such Investor Director Designee’s prospective Board committee assignment(s), the applicable Board committee composition requirements set forth in the NASDAQ Rules and the Exchange Act, in each case, subject to applicable “phase-in” and other exemptions set forth in the NASDAQ Rules and the Exchange Act which the Company may rely on.

(c) During the period from and after the Second Threshold Date with respect to an Investor Group until the first date on which such Investor Group ceases to Beneficially Own a number of Shares in the aggregate equal to or in excess of five percent (5%) of the then-outstanding Shares (such date with respect to the GS Investors or the Pamplona Investor, as the case may be, the “Third Threshold Date”), such Investor Group shall have the right (but not the obligation) to designate only one (1) Investor Director Designee.

(d) From and after the Third Threshold Date with respect to an Investor Group, such Investor Group shall have no right to designate any Investor Director Designees hereunder.

(e) The Company shall include each Investor Director Designee among the Company’s and its directors’ nominees for election to the Board at all of the Company’s applicable annual or special meetings of stockholders (or actions by written consent) at which directors are to be elected, subject to satisfaction of the requirements of Law and the Company’s organizational and governance documents regarding service as a director of the Company.

 

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(f) Except as provided in Section 3.2(e), if the number of individuals that either the GS Investors or the Pamplona Investor have the right to designate for election to the Board is decreased pursuant to Section 3.2(b), Section 3.2(c) or Section 3.2(d), then the corresponding number of directors designated by such Investor pursuant to the foregoing provisions of this Section 3.2 shall immediately offer to resign from the Board. In the event that any Investor Director Designee offers to tender his or her resignation, the Board shall promptly determine whether to accept such resignation and, if the Board chooses to accept such resignation, the Company and the applicable Investor Group shall be immediately required to take any and all actions necessary or appropriate to cooperate in ensuring the removal of such individual from his or her directorship. Except as provided above, the GS Investors and the Pamplona Investor shall have the sole and exclusive right to immediately remove their respective Investor Director Designees from the Board, as well as the exclusive right to designate the individual to fill vacancies that are created by reason of the death, removal or resignation of such Investor Director Designees.

(g) To the extent nominated or designated by the GS Investors or the Pamplona Investor, the Company and each of the other Investors shall take all actions necessary and within their control and to the extent permissible by Law to cause the nomination, election, removal or replacement of the Investor Director Designees as provided for herein, including (i) in the case of the Company, soliciting proxies for each Investor Director Designee to the same extent it does so for its other director nominees, and (ii) in the case of the Investors, voting the Shares held by such Investor (whether at a meeting or acting by written consent). No Investor shall take any action with respect to the Company that would be inconsistent with the provisions of this Agreement.

Section 3.3 Non-Designee Directors. Subject to Section 5.1(a)(viii), at all times following the consummation of the IPO, the Board shall include a sufficient number of directors not Affiliated with and not nominated or designated by the Investors or Affiliated with the Company (other than, in each case, in their capacity as directors) who shall be Independent (the “Non-Designee Directors”) in order to permit the Company to satisfy the applicable director independence and Board committee composition requirements set forth in the NASDAQ Rules and the Exchange Act.

Section 3.4 Board Committees. Upon the consummation of the IPO, the Board shall have established the following committees:

(a) An audit committee having the responsibilities set forth in the Audit Committee Charter attached hereto as Annex I and which shall at all times meet the requirements of NASDAQ Rule 5605(c)(2) and Rule 10A-3 under the Exchange Act.

(b) A compensation committee having the responsibilities set forth in the Compensation Committee Charter attached hereto as Annex II and which shall at all times meet the requirements of NASDAQ Rule 5605(d)(2) and Rule 10C-1 under the Exchange Act.

(c) A nominating and corporate governance committee having the responsibilities set forth in the Nominating and Corporate Governance Committee Charter attached hereto as Annex III and which shall at all times meet the requirements of NASDAQ Rule 5605(e).

 

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(d) A compliance committee having the responsibilities set forth in the Compliance Committee Charter attached hereto as Annex IV.

ARTICLE IV

REGISTRATION RIGHTS; COORDINATION COMMITTEE

Section 4.1 Registration Rights. Effective as of the consummation of the IPO, the Company shall grant to each of the Investors and certain other members of BHG Holdings registration rights in substantially the same form as set forth in the form of Registration Rights Agreement attached as Exhibit A hereto (the “Registration Rights Agreement”).

Section 4.2 Coordination Committee.

(a) Effective as of the consummation of the IPO, the Investors shall create a coordination committee (the “Coordination Committee”), which shall not be a committee of the Board, and will maintain such committee for so long as this Agreement remains in effect or until disbanded with the written consent of each Investor Group. During the period following the IPO, the Coordination Committee shall facilitate coordination of (i) the exercise of registration rights pursuant to the Registration Rights Agreement, (ii) dispositions of Shares held by the Investors pursuant to Rule 144 as provided in Section 4.2(b), and (iii) following the occurrence of a Distribution Event, any distributions of Shares by any Investor to its investors as provided in Section 4.2(b). The GS Investors and the Pamplona Investor will have the right to designate an equal number of members of the Coordination Committee and shall be permitted to remove and replace such designees, and to fill any vacancies resulting from the death, removal or resignation of any such designee, from time to time. Subject to the terms and conditions of this Section 4.2 set forth above, the procedures governing the conduct of the Coordination Committee shall be established from time to time by the written consent of the Investors.

(b) Following the consummation of the IPO, an Investor wishing to (i) Transfer any Shares pursuant to Rule 144, (ii) exercise its demand registration rights pursuant to the Registration Rights Agreement, or (iii) distribute any Shares to such Investor’s investors, shall consult with the Coordination Committee prior to taking such action or entering into any definitive agreement with respect to such action, and shall use reasonable efforts to minimize any adverse impact to the other Investors in respect of such Transfer or distribution.

Section 4.3 Certain Notice Requirements. From and after the consummation of the IPO, an Investor Group (for purposes of this Section 4.3, a “Notifying Investor Group”) shall provide the other applicable Investor Group with written notice prior to the time that such Notifying Investor Group acquires, during any twelve (12) month period following the consummation of the IPO, Beneficial Ownership of an aggregate amount of Shares in excess of nine-tenths of a percent (0.90%) of the aggregate amount of issued and outstanding Shares.

 

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ARTICLE V

ADDITIONAL AGREEMENTS OF THE PARTIES

Section 5.1 Certain Investor Approval Rights.

(a) During the period from and after the consummation of the IPO until the First Threshold Date with respect to an Investor Group, the Company shall not (and shall cause its Subsidiaries not to), take, approve or commit or agree to take any of the following actions without the prior written consent of such Investor Group; provided, that, for purposes of this Section 5.1, the Company shall be entitled to conclusively rely upon a written consent signed by the GS Representative or the Pamplona Representative purporting to consent on behalf of the Investor Group of which it is a part:

(i) the consummation of any transaction or series of transactions that, whether by merger, amalgamation, business combination, sale of Equity Securities, asset disposition or other means, results in a Change in Control;

(ii) the adoption or approval of the annual budget of the Company Group;

(iii) except as otherwise previously approved in an Approved Budget for a given year, (A) any acquisition (whether by merger, consolidation or otherwise) of Equity Securities of, or other investment in, any Person or business (including through an acquisition of assets, operations or business and any joint venture, partnership or similar arrangement) with a value (including any liabilities assumed in connection with such acquisition) in excess of fifteen percent (15%) of the total assets of the Company Group, or (B), any sale, lease, exchange or other disposition of any assets or properties of the Company Group having a value in excess of fifteen percent (15%) of the total assets of the Company Group;

(iv) the issuance of any Equity Securities of any member of the Company Group, excluding (A) the issuance of any Equity Securities under any equity incentive plan that has been approved by the Board, (B) the issuance of any Equity Securities by (1) wholly owned Subsidiaries of the Company to the Company or another wholly owned Subsidiary of the Company, or (2) joint ventures or non-wholly owned Subsidiaries to the extent that neither the Company nor any of its Subsidiaries has control over such issuance, and (C) the issuance of any Equity Securities with an aggregate issuance or subscription amount, when measured together with the aggregate issuance or subscription amount in respect of all prior issuances of Equity Securities pursuant to this clause (C), that is not greater than $50 million;

(v) any creation, incurrence, or assumption of Indebtedness by the Company or any of its Subsidiaries that, immediately after such creation, incurrence or assumption, would result in the aggregate Indebtedness of the Company Group exceeding an amount equal to $50 million;

(vi) any amendment of, or modification to, the Charter or the Bylaws;

 

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(vii) the entry into any new line of business or any material modification of the scope of any existing line of business of the Company Group;

(viii) any increase or decrease in the size of the Board;

(ix) the hiring or termination of the Company’s Chief Executive Officer, Chief Financial Officer or Chief Operating Officer; and

(x) the entry into any agreement, resolution or commitment with respect to any of the foregoing matters set forth in clauses (i) through (ix) of this Section 5.1(a).

(b) From and after the First Threshold Date with respect to each Investor Group, the Company’s obligations set forth in Section 5.1(a) shall automatically terminate without the requirement of any further action by any party hereto and the terms and conditions of this Section 5.1 shall cease to be of any further force or effect.

Section 5.2 No Promotion. The Company agrees that it will not (and that the Company will cause its Subsidiaries not to), without the prior written consent of the applicable Affiliate of the GS Investors or the applicable Affiliate of the Pamplona Investor, as the case may be, in each instance, (a) use in advertising, publicity, or otherwise the name of Goldman, Sachs & Co. LLC, Pamplona Capital Management LLP or any of their respective Affiliates, or any partner or employee of any such Affiliates, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Goldman, Sachs & Co. LLC, Pamplona Capital Management LLP, or any of their respective Affiliates, or (b) represent, directly or indirectly, that any product or any service provided by the Company Group has been approved or endorsed by Goldman, Sachs & Co. LLC, Pamplona Capital Management LLP, or any of their respective Affiliates.

Section 5.3 Exculpation Among Investors. Each Investor acknowledges that it is not relying upon any person, firm or corporation, other than the public information filed by the Company with the SEC relating to its Shares, in making its investment or decision to sell, retain its investment or further invest in the Company. Each Investor agrees that neither such Investor nor the respective controlling persons, officers, directors, partners, agents, or employees of such Investor shall be liable to any other Investor for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares.

Section 5.4 No Fiduciary Duty; Investment Banking Services. The parties hereto acknowledge and agree that nothing in this Agreement shall create a fiduciary duty of Goldman, Sachs & Co. LLC or any of its Affiliates or Pamplona Capital Management LLP or any of its Affiliates to the Company or the Investors. Notwithstanding anything to the contrary herein or any actions or omissions by representatives of Goldman, Sachs & Co. LLC or any of its Affiliates or Pamplona Capital Management LLP or any of its Affiliates in whatever capacity, including as a director, it is understood that none of Goldman, Sachs & Co. LLC or any of its Affiliates or Pamplona Capital Management LLP or any of its Affiliates is acting as a financial advisor, agent or underwriter to the Company or any of its Affiliates or otherwise on behalf of the Company or any of its Affiliates unless retained to provide such services pursuant to a separate written agreement executed by the Company and such other Person.

 

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Section 5.5 Logo of the Company and its Subsidiaries. The Company grants the Investors permission to use the Company’s and its Subsidiaries’ names and logos in the Investors’ or their respective Affiliates’ marketing materials solely to reflect that the Company is, or was, at one time a portfolio company of such Investor. The Investors or their respective Affiliates, as applicable, shall include a trademark attribution notice giving notice of the Company’s or its Subsidiaries’ ownership of its trademarks in the marketing materials in which the Company’s or its Subsidiaries’ names and logos appear.

Section 5.6 In-Kind Distributions. If BHG Holdings or any Investor seeks to effectuate an in-kind distribution of all or part of its Shares to its direct or indirect equityholders, the Company will, subject to applicable lockups pursuant to the Registration Rights Agreement, reasonably cooperate with and assist the Company’s transfer agent, the applicable Investors and each such Investor’s equityholders, as applicable, to facilitate such in-kind distribution in the manner reasonably requested by the applicable Investors, including pursuant to the delivery of instruction letters by the Company or its counsel to the Company’s transfer agent and the delivery of Shares without restrictive legends, to the extent no longer applicable.

ARTICLE VI

ADDITIONAL PARTIES

Section 6.1 Additional Parties. Additional parties, provided they are Permitted Transferees, may be added to and be bound by and receive the benefits afforded by this Agreement upon the signing and delivery of a counterpart of this Agreement by the Company and the acceptance thereof by such additional parties and, to the extent permitted by Section 7.7, amendments may be effected to this Agreement reflecting such rights and obligations, consistent with the terms of this Agreement, of such party as the Company, the Investors and such party may agree.

ARTICLE VII

MISCELLANEOUS

Section 7.1 Freedom to Pursue Opportunities.

(a) The parties expressly acknowledge and agree that, to the extent permitted by applicable Law: (i) each of the Investors and their respective Affiliates shall, to the fullest extent permissible by Law, have no duty to refrain from directly or indirectly (A) engaging in the same or similar business activities or lines of business in which the Company or any of its Affiliates now engages or proposes to engage or (B) otherwise competing with the Company or any of its Affiliates; (ii) none of the Company, any of its Subsidiaries or any Investor shall have any rights in and to the business ventures of any Investor, its Affiliates, or the income or profits derived therefrom; (iii) each of the Investors and their respective Affiliates may do business with any potential or actual customer or supplier of the Company or any of its Subsidiaries or may employ or otherwise engage any officer or employee of the Company or any of its Subsidiaries; and (iv) in the event that any Investor or its respective Affiliates acquire knowledge of a potential transaction or other matter or business opportunity which may be a corporate opportunity for itself, herself or himself and the Company or any of its Affiliates, such Investor or its respective Affiliates shall, to the fullest extent permitted by applicable Law, have no fiduciary duty or other duty (contractual or otherwise) to communicate, present or offer such transaction or other business opportunity to the Company or any of its Affiliates and, to the fullest extent permitted by applicable Law, shall not be liable to the Company or its stockholders or to any Affiliate of the Company for breach of any fiduciary duty or other duty (contractual or otherwise) as a stockholder, director or officer of the Company solely by reason of the fact that such Investor or its respective Affiliates pursue or acquire such corporate opportunity for itself, herself or himself, offers or directs such corporate opportunity to another Person, or does not present such corporate opportunity to the Company or any of its Affiliates; provided, that this Section 7.1 shall not apply to any directors of the Company or any of its Subsidiaries that are not also Investor Director Designees; provided, further, that any actions taken, directly or indirectly, by any publicly-traded Affiliate (or any of its officers, directors or employees) of an Investor shall not be deemed to be an action taken by such Investor; provided, further, that, with respect to clause (iv) of this Section 7.1(a), the Company does not renounce its interest in any corporate opportunity offered to any director of the Company if such opportunity is expressly offered to such Person solely in his or her capacity as a director or officer of the Company and the provisions of this Section 7.1(a) shall not apply to any such corporate opportunity.

 

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(b) To the extent permitted by applicable Law, each Investor (for itself and on behalf of the Company) hereby acknowledges and agrees that, (i) in the event of any conflict of interest between the Company or any of its Subsidiaries, on the one hand, and any Investor, on the other hand, such Investor (or the Investor Director Designees appointed by such Investor acting in their capacity as a director) may act in such Investor’s best interest and (ii) no Investor (or the Investor Director Designees appointed by such Investor acting in their capacity as a director), shall be obligated (A) to reveal to the Company or any of its Subsidiaries confidential information belonging to or relating to the business of such Investor, or (B) to recommend or take any action in its capacity as such Investor or Investor Director Designee, as the case may be, that prefers the interest of the Company or any of its Subsidiaries over the interest of such Investor or Investor Director Designee, as the case may be.

Section 7.2 Effective Time. The operative provisions of this Agreement shall become effective upon the consummation of the IPO.

Section 7.3 Entire Agreement. This Agreement, together with the form of Registration Rights Agreement in Exhibit A hereto, and all of the other Exhibits, Annexes and Schedules hereto and thereto, constitute the entire understanding and agreement between the parties as to the matters covered herein and therein and supersede and replace any prior understanding, agreement or statement of intent, in each case, written or oral, of any and every nature with respect thereto between the parties as to the matters covered herein and therein. In the event of any inconsistency between this Agreement and any document executed or delivered to effect the purposes of this Agreement, including, the bylaws of any company, this Agreement shall govern as among the parties hereto.

Section 7.4 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be construed and enforced in accordance with, and the rights and duties of the parties shall be governed by, the law of the State of Delaware, without regard to principles of conflicts of laws that would result in the application of the law of any other jurisdiction.

 

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(b) Each party agrees that it will bring any action or proceeding in respect of any claim arising out of this Agreement or the transactions contemplated hereby exclusively in the Court of Chancery of the State of Delaware or, if such court shall not have jurisdiction, another federal or state court of competent jurisdiction located in the State of Delaware (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 7.11.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 7.4(c).

Section 7.5 Obligations; Remedies. The Company and the Investors shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement (including, without limitation, costs of enforcement) and to exercise all other rights existing in their favor. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the parties shall be entitled to specific performance of the terms of this Agreement without the necessity of proving the inadequacy of monetary damages as a remedy, including an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate, and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief. All remedies, either under this Agreement or by Law or otherwise afforded to any party, shall be cumulative and not alternative.

 

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Section 7.6 Consent of the Investors. Subject to the terms and conditions of Section 5.1, if any consent, approval or action of the Investors is required at any time pursuant to this Agreement, such consent, approval or action shall be deemed given if the holders of a majority of the outstanding Shares held by each Investor Group at such time provide such consent, approval or action in writing at such time, unless this Agreement provides for more specific consent requirements of the Investors with respect to such consent, approval or action.

Section 7.7 Amendment and Waiver.

(a) The terms and provisions of this Agreement may be modified or amended at any time and from time to time only by the written consent of the Company and, for so long as the Third Threshold Date has not occurred with respect to an Investor Group, each Investor forming part of such Investor Group. If reasonably requested by an Investor, the Company agrees to execute and deliver any amendments to this Agreement which the Company in its reasonable discretion concludes are not adverse to Company or its public stockholders to the extent so requested by such Investor in connection with the addition of a Permitted Transferee in accordance with Section 6.1 or a recipient of any newly-issued Shares as a party hereto. Any amendment, modification or waiver effected in accordance with the foregoing shall be effective and binding on the Company and all Investor Parties.

(b) Any failure by any party at any time to enforce any of the provisions of this Agreement shall not be construed a waiver of such provision or any other provisions hereof.

Section 7.8 Binding Effect. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the parties’ successors and permitted assigns.

Section 7.9 Termination.

(a) This Agreement shall automatically terminate as to any Investor Group on the Third Threshold Date with respect to such Investor Group.

(b) This Agreement shall automatically terminate upon the earlier of (i) all Investors ceasing to be a party to this Agreement in accordance with Section 7.9(a), (ii) a Change in Control; (iii) the written agreement of the Company and the Investors that hold Shares at such time; and (iv) the dissolution or liquidation of the Company. In the event of any termination of this Agreement as provided in this Section 7.9, this Agreement shall forthwith become wholly void and of no further force or effect (except for this Article VII, which shall survive) and there shall be no liability on the part of any parties hereto or their respective Affiliates, except as provided in this Article VII. Notwithstanding the foregoing, no party hereto shall be relieved from liability for any willful breach of this Agreement.

 

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Section 7.10 Non-Recourse. Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered in connection herewith, and notwithstanding the fact that certain of the Investors may be partnerships or limited liability companies, by its acceptance of the benefits of this Agreement, the Company and each Investor covenant, agree, and acknowledge that no Person (other than the parties hereto) has any obligations hereunder, and that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, general or limited partner or member of any Investor or of any Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any the former, current and future equity holders, controlling persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of the Investors or any former, current or future equity holders, controlling persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of any of the foregoing, as such, for any obligation of any Investor under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

Section 7.11 Notices. Any and all notices, designations, offers, acceptances or other communications provided for herein shall be deemed duly given (a) when delivered personally by hand, (b) when sent by email upon confirmation of receipt or (c) one Business Day following the day sent by overnight courier:

if to the Company, to:

Privia Health Group, Inc.

950 N. Glebe Rd., S

Arlington, VA 22203

Attention: Thomas Bartrum, General Counsel

Email: tbartrum@priviahealth.com

with a copy (which shall not constitute notice) to:

Davis Polk & Wardwell LLP

450 Lexington Ave.

New York, NY 10017

Attention: Richard Truesdell, Esq,

Email: richard.truesdell@davispolk.com

if to any GS Investor, to:

c/o Goldman, Sachs & Co. LLC

200 West Street

New York, New York 10282-2198

Attention: Jeffrey Bernstein

Email: jeff.bernstein@gs.com

and

c/o Goldman, Sachs & Co. LLC

200 West Street

New York, New York 10282-2198

Attention: Benjamin Haskins, Esq.

Email: Ben.Haskins@gs.com

 

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with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attention: Robert Schwenkel, Esq.; Matthew Soran, Esq.

Email: Robert.Schwenkel@friedfrank.com;

Matthew.Soran@friedfrank.com;

if to the Pamplona Investor, to:

c/o Pamplona Capital Management LLP

667 Madison Avenue, 22nd Floor

New York, NY 10065

Attention: Will Sherrill; William Pruellage

Email: WSherrill@pamplonafunds.com;

WPruellage@pamplonafunds.com

with a copy (which shall not constitute written notice) to:

Lowenstein Sandler LLP

1251 Avenue of the Americas, 18^th Floor

New York, NY 10020

Attention: Michael Brosse

Email: mbrosse@lowenstein.com

Section 7.12 Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.

Section 7.13 No Third-Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their permitted assigns and successors, and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

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Section 7.14 Recapitalizations; Exchanges, Etc. The provisions of this Agreement shall apply to the full extent set forth herein with respect to Shares, to any and all shares of capital stock of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution of the Shares, by reason of a stock dividend, stock split, stock issuance, reverse stock split, combination, recapitalization, reclassification, merger, consolidation or otherwise.

Section 7.15 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Copies of executed counterparts transmitted by telecopy or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 8.15.

[Signature Page Follows]

 

 

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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be executed on its behalf as of the date first written above.

 

[Signature Page to Privia Health Group, Inc. Shareholder Rights Agreement]

 

[Signature Page to Privia Health Group, Inc. Shareholder Rights Agreement]

[Signature Page to Privia Health Group, Inc. Shareholder Rights Agreement]

Exhibit A

Form of Registration Rights Agreement

[Attached]

Exhibit B

Form of Director Indemnification Agreement

[Attached]

Annex I

Form of Audit Committee Charter

[Attached]

Annex II

Form of Compensation Committee Charter

[Attached]

Annex III

Form of Nominating and Corporate Governance Committee Charter

[Attached]

Annex IV

Form of Compliance Committee Charter

[Attached]